ACQUISITION AGREEMENT
THIS ACQUISITION AGREEMENT (the "Agreement") is entered into this 30th
day of December, 1999 by and between Thesseus International Asset Fund N.V., a
Netherlands Antilles corporation with a place of business at Zeelandia Office
Part, 16 Kaya W.F.G (Jombi) Xxxxxxx, Curacao, Netherlands Antilles ("Thesseus"),
and Thesseus Holdings, Inc., a Nevada corporation with a place of business at
000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0 (the
"Company").
RECITALS
WHEREAS, Thesseus is a closed-end investment fund which seeks to
achieve long-term capital appreciation by blending value-based investment
principles with venture capital techniques; and
WHEREAS, Thesseus owns and holds the following portfolio interests: (a)
in Brunswick Capital Partners, Inc., a South Dakota corporation ("BCP"), shares
of preferred stock convertible into 40% of the shares of common stock of BCP on
a fully-diluted basis (the "BCP Shares"); and (b) in InfoBase Direct Marketing
Services, Inc., a Nevada corporation ("IDMS"), shares of preferred stock
convertible into 49% of the shares of common stock of IDMS on a fully-diluted
basis (the "IDMS Shares"; collectively, with the BCP Shares, the "Portfolio
Shares"); and
WHEREAS, Thesseus has determined to transfer the Portfolio Shares into
a wholly-owned subsidiary in order to facilitate further investments by it; and
WHEREAS, Thesseus has created the Company as its wholly-owned
subsidiary in order to hold the Portfolio Shares; and
WHEREAS, the Company desires to acquire the Portfolio Shares from
Thesseus in exchange for the issuance of shares of its common stock (the "Common
Shares") to Thesseus, and Thesseus desires to transfer the Portfolio Shares to
the Company in exchange for the Common Shares, on the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth below, it is therefore agreed as follows:
ARTICLE I
DEFINITIONS
1. Currency; Certain Definitions. Unless otherwise indicated, all
currency figures in this Agreement are denominated in U.S. dollars. Capitalized
terms used, but not defined elsewhere, in this Agreement are defined as follows:
1.1 "Affiliate" of a Person means another Person (a)
directly or indirectly controlling, controlled by, or under common control with,
such Person (for this purpose, "control" of a Person means the power (whether or
not exercised) to direct the policies, operations or activities of such Person
by or through the ownership of, or right to vote, or direct the manner of voting
of, securities of such Person, or pursuant to agreement or Law or otherwise) or
(b) who is a director or officer of a corporation, general partner of a
partnership, manager of a limited liability company, trustee of a trust or other
Person who exercises managerial authority with respect to the subject Person; or
(c) who owns (or has the discretionary right to acquire) 10% or more of the
equity interests (including without limitation capital stock or partnership,
membership or beneficial interests) of the subject Person.
1.2 "BCP" means Brunswick Capital Partners, Inc., a South
Dakota corporation, and any permitted successor thereto.
1.3 "BCP Shares" means the 490 shares of preferred stock
of BCP owned and held by Thesseus, which shares are convertible into 40% of the
shares of common stock of BCP on a fully-diluted basis, and are otherwise
governed by the BCP Statement of Rights and Preferences.
1.4 "BCP Statement of Rights and Preferences" means the
Statement of Rights and Preferences governing the BCP Shares as filed with the
South Dakota Secretary of State, a copy of which is attached hereto as Exhibit
"A".
1.5 "Common Shares" means the 1,000 Common Shares of the
Company, par value $0.001, to be acquired by Thesseus.
1.6 "Consent" means any approval, authorization, consent
or ratification by or on behalf of any Person that is not a party to this
Agreement, or any waiver of, or exemption or variance from, any License or
Order.
1.7 "Contract" means any written or oral contract,
agreement, arrangement or understanding, including without limitation any loan
agreement or indenture, purchase, sales, supply or service order or agreement,
real property, equipment or other lease, or license of trade rights, to which
Thesseus or the Company is a party or by which Thesseus, the Company or any of
their respective assets are bound.
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1.8 "Governing Document" means (a) the articles of
association or certificate of incorporation (including any restatement,
amendment or correction thereof or any certificate of designation thereunder)
and the by-laws of a corporation, and any agreement between any shareholders
thereof with respect to the voting or disposition of, or right to receive
dividends or other distributions with respect to, the capital stock of such
corporation; (b) the articles or certificate and the partnership agreement of a
partnership; (c) the articles of organization and operating agreement of a
limited liability company; (d) the trust agreement of a trust; and (e) any
similar agreement, certificate or other document, whether or not filed or
required to be filed with a Governmental Authority, governing or relating to the
organization, management or ownership of any Person.
1.9 "Governmental Authority" means any federal, state,
local or foreign government or governmental authority, agency or
instrumentality, or any court of competent jurisdiction.
1.10 "IDMS" means InfoBase Direct Marketing Services,
Inc., a Nevada corporation, and any permitted successor thereto.
1.11 "IDMS Shares" means the 4,900 shares of preferred
stock of IDMS, which shares are convertible into 40% of the shares of common
stock of IDMS on a fully-diluted basis, and are otherwise governed by the IDMS
Statement of Rights and Preferences.
1.12 "IDMS Statement of Rights and Preferences" means the
Statement of Rights and Preferences governing the IDMS Shares as filed with the
Nevada Secretary of State, a copy of which is attached hereto as Exhibit "B".
1.13 "Law" means any statute, rule, regulation or
ordinance of any Governmental Authority.
1.14 "Lease" means a lease of real property.
1.15 "License" means any license, permit, certification,
qualification or franchise issued or granted by any Governmental Authority.
1.16 "Lien" means any security interest, conditional sale
or other title retention agreement, mortgage, pledge, lien, charge, encumbrance
or other adverse claim or interest.
1.17 "Order" means any judgment, order, writ, decree,
award, directive, ruling or decision of any Governmental Authority.
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1.18 "Person" includes without limitation a natural
person, corporation, joint stock company, limited liability company,
partnership, joint venture, association, trust, Governmental Authority, or any
group of the foregoing acting in concert.
1.19 "Portfolio Shares" means, collectively, the BCP
Shares and the IDMS Shares.
1.20 "Proceeding" means any action, suit, investigation,
audit or other proceeding, at law or in equity, before or by any Taxing
Authority or Governmental Authority.
1.21 "Tax" means any tax, fee, levy, assessment or other
governmental charge imposed by any Taxing Authority (including without
limitation any income, franchise, gross receipts, property, sales, use, excise,
services, value added, ad valorem, withholding, social security, estimated,
accumulated earnings, transfer, gains, license, privilege, payroll, profits,
capital stock, employment, unemployment, severance, stamp, occupancy, customs or
occupation tax), and any interest, additions to tax and penalties in connection
therewith.
1.22 "Taxing Authority" means the U.S. Internal Revenue
Service and any other domestic or foreign Governmental Authority responsible for
the administration of any Tax.
1.23 "Tax Return" means any return, amended return,
declaration, report, estimate, information return or statement regarding Taxes
which is filed or required to be filed under applicable Law, whether on a
consolidated, combined, unitary or separate basis or otherwise.
1.24 "Transaction Document" means this Agreement and each
other agreement, instrument or other document being entered into by the Company
or Thesseus or any related party at or in connection with the transaction
contemplated hereby.
ARTICLE II
ACQUISITION OF PORTFOLIO SHARES AND COMMON SHARES
2.1 Acquisition of Portfolio Shares. Upon the execution of this
Agreement, subject to the terms and conditions set forth herein, Thesseus shall
sell, assign, transfer and deliver the Portfolio Shares to the Company, and the
Company shall acquire the Portfolio Shares from Thesseus.
2.2 Acquisition of Common Shares. Upon the execution of this
Agreement, in consideration for the transfer of the Portfolio Shares to the
Company, the Company shall
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sell, assign, transfer and otherwise convey to Thesseus, and Thesseus shall
subscribe for, one thousand (1,000) Common Shares of the Company.
2.3. Acquisition Price. The Acquisition Price for the Portfolio
Shares, and for the Common Shares, shall be equal to the aggregate book value of
the Portfolio Shares on December 30, 1999, and shall in each case be satisfied
by delivery of the respective Shares to its transferee in accordance with the
terms of this Agreement.
2.4 Transactions. All of the transactions contemplated by this
Agreement are to take place upon the execution of this Agreement, with the
exception of those set forth in Article VI hereof, and are intended by the
parties to be consummated concurrently; and if any such transaction is not
consummated as provided herein, the parties shall take all actions necessary to
dissolve and invalidate all other such transactions as if none of such
transactions had been consummated.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THESSEUS
Thesseus hereby represents and warrants to the Company as follows:
3.1 Organization. Thesseus is a corporation duly organized,
validly existing and in good standing under the laws of the Netherlands Antilles
and has full power and authority to own its assets and carry on its business in
the manner and places where such assets are now owned and such business is now
being conducted.
3.2 Power and Authority. Thesseus has full legal capacity, power
and authority to execute and deliver this Agreement and each other Transaction
Document to which it is a party and to assume and perform its obligations
hereunder and thereunder. This Agreement and each other Transaction Document to
which Thesseus is a party has been duly executed and delivered by Thesseus, and
this Agreement and each other Transaction Document to which Thesseus is a party
is, a legally valid and binding obligation of Thesseus, enforceable against
Thesseus in accordance with its respective terms, subject to (a) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and (b) equitable principles
limiting the availability of certain remedies.
3.3 Absence of Conflict. The execution and delivery of this
Agreement and each other Transaction Document to which it is a party do not, and
the performance by Thesseus of its obligations hereunder or thereunder, will
not, (i) violate any provision of the Governing Documents of Thesseus, or (ii)
conflict with or result in any breach of any condition or provision of, or
constitute a default under, or create or give rise to any adverse
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right of termination or cancellation by, or excuse the performance of, any other
Person under, or result in the creation or imposition of any Lien upon Thesseus.
3.4 Consents. No Consent of, or notice to, any Person is required
as to Thesseus in connection with the execution and delivery of this Agreement
or any other Transaction Document by Thesseus or the performance of its
obligations hereunder or thereunder, where the failure to obtain such Consent or
give such notice would have an adverse effect upon Thesseus or prohibit,
invalidate, or make unlawful, in whole or in part, this Agreement or any other
Transaction Document, or the carrying out of the provisions hereof or thereof or
the transactions contemplated hereby or thereby.
3.5 Litigation. No Proceeding is pending or threatened against or
affecting Thesseus in which an unfavorable outcome would have a material adverse
effect upon Thesseus or prohibit, invalidate, or make unlawful, in whole or in
part, this Agreement or any other Transaction Document, or the carrying out of
the provisions hereof or thereof or the transactions contemplated hereby or
thereby. Thesseus has not received any notice of or, to its knowledge, is in
default in respect of any Order, nor is there any such Order enjoining Thesseus
in respect of, or the effect of which is to prohibit or curtail the performance
of, the obligations of Thesseus hereunder or under any other Transaction
Document.
3.6 Title to Portfolio Shares; Rights and Preferences. Thesseus is
the owner of the Portfolio Shares, and such Shares are duly authorized, validly
issued, fully paid and nonassessable and free and clear of all Liens whatsoever.
With respect to each of the BCP and IDMS Statements of Rights and Preferences
attached hereto as Exhibits "A" and "B", respectively, (a) such document is a
true and correct copy of the document on file with the relevant Governmental
Authority, (b) there has been no amendment or other document relating to or
affecting such Statement filed with such Governmental Authority, and (c) to the
knowledge of Thesseus, no action has been taken by either BCP or IDMS, its
stockholders, directors or officers in contemplation of the filing of any such
amendment or other document.
3.7 Brokers or Finders. Neither Thesseus nor any Affiliate has
employed or engaged any Person to act as a broker, finder or other intermediary
in connection with the transactions contemplated hereby, and no Person is
entitled to any fee, commission or other compensation from the Company relating
to any such employment or engagement by Thesseus or any Affiliate of Thesseus.
3.8 Investment Intent. Thesseus is acquiring the Common Shares for
investment, for its own account, and not with a view to, or for resale in
connection with, any distribution thereof, nor with any current intention of
distributing the Securities in violation of the securities laws of the United
States or any foreign jurisdiction.
3.9 No Misrepresentation by Thesseus. No representation, warranty
or statement by Thesseus in this Agreement or in any certificate, exhibit or
schedule furnished
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pursuant hereto or in connection with the transactions contemplated hereby
contains any untrue statement of a material fact or omits to state a material
fact necessary to make the statements or facts contained herein or therein not
misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Thesseus as follows:
4.1 Organization. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Nevada, and
has full power and authority to own its assets and carry on its business in the
manner and places where such assets are now owned and such business is now being
conducted.
4.2 Power and Authority. The Company has full legal capacity,
power and authority to execute and deliver this Agreement and each other
Transaction Document to which it is a party and to assume and perform its
obligations hereunder and thereunder. This Agreement and each other Transaction
Document to which the Company is a party has been duly executed and delivered,
and this Agreement and each other Transaction Document to which the Company is a
party is, a legally valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, subject to (a) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and (b) equitable principles
limiting the availability of certain remedies.
4.3 Absence of Conflict. The execution and delivery of this
Agreement and each other Transaction Document to which it is a party do not, and
the performance by the Company of its obligations hereunder and thereunder will
not, violate any provision of the Governing Documents of the Company and do not
and will not conflict with or result in any breach of any condition or provision
of, or constitute a default under, or create or give rise to any adverse right
of termination or cancellation by, or excuse the performance of, any other
Person, or result in the creation or imposition of any Lien upon the Company or
any of its assets or the acceleration of the maturity or date of payment or
other performance of any obligation of the Company by reason of the terms of,
any agreement, indenture, instrument, license, lease, Lien or Order to which the
Company is a party or is subject or which is or purports to be binding upon it.
4.4 Consents. No Consent of, or notice to, any Person is required
as to the Company in connection with the execution and delivery by the Company
of this Agreement or any other Transaction Document or the performance of the
obligations of the Company hereunder or thereunder, where the failure to obtain
such Consent or give such notice would have an adverse effect upon the Company,
or its assets or business or prohibit, invalidate, or
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make unlawful, in whole or in part, this Agreement or any other Transaction
Document, or the carrying out of the provisions hereof or thereof or the
transactions contemplated hereby or thereby.
4.5 Litigation. No Proceeding is pending or, to the best of the
Company's knowledge, threatened against or affecting the assets, operations or
financial or other condition of the Company in which an unfavorable Order would
prohibit, invalidate, or make unlawful, in whole or in part, this Agreement or
any other Transaction Document, or the carrying out of the provisions hereof or
thereof or the transactions contemplated hereby or thereby. The Company is not
in default in respect of any Order, nor is there any such Order enjoining the
Company in respect of, or the effect of which is to prohibit or curtail the
Company's performance of its obligations hereunder or under any other
Transaction Document.
4.6 Authorized Capital. The entire authorized capital of the
Company currently consists of the following: 1,000,000 shares of common stock,
par value $0.001, of which 1,000 Common Shares are to be issued and outstanding
in the name of Thesseus upon execution of this Agreement. All such Common Shares
are duly authorized, validly issued, fully paid and nonassessable. No shares of
common stock of the Company are reserved for issuance, and there are no
agreements, commitments or arrangements providing for the issuance or sale of
any capital stock or other interest of the Company, or any issued or outstanding
options, warrants or rights to purchase, or any security or instrument
convertible into or exchangeable for, any capital stock or other interest of the
Company.
4.7 No Undisclosed Liabilities. The Company is newly formed, and
has not engaged in business other than to establish its operations. The Company
does not have any liabilities or obligations of any kind, whether known or
unknown, or whether absolute, accrued, contingent, matured or otherwise, whether
due or to become due except liabilities or obligations that arose in the
ordinary course of business in establishing such operations.
4.8 Assets and Material Contracts. Other than this Agreement and
the assets to be acquired hereby, the Company currently has no material
contracts (including, without limitation, employment or other labor agreements,
benefits arrangements and policies of insurance) and has no material assets.
4.9 Compliance with Law. The Company has all Licenses and all
Consents of Governmental Authorities required by applicable Law for it to
conduct its business. All such Licenses and Consents are in full force and
effect and the Company has not received notice of any pending cancellation or
suspension thereof nor, to the best of the Company's knowledge, is any pending
cancellation or suspension thereof threatened. The Company is in compliance in
all material respects with each Law applicable to it. The Company has not
received any notice of violation of any Law or Order.
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4.10 Tax. No Tax Returns of or relating to the Company have been
filed. No Taxing Authority has asserted any claim that could result in the
imposition of any Tax for which the Company is or may be liable or that could
adversely affect the Tax liability of the Company. There is no pending
Proceeding relating to any Tax for which the Company is or may be liable or that
could adversely affect any Tax liability of the Company and, to the best of the
Company's knowledge, no Taxing Authority is contemplating such a Proceeding or
adjustment. The Company is not a party to any Tax sharing or Tax allocation
agreement, arrangement or understanding.
4.11 Brokers or Finders. Neither the Company nor any Affiliate
thereof has employed or engaged any Person to act as a broker, finder or other
intermediary in connection with the transactions contemplated hereby, and no
Person is entitled to any fee, commission or other compensation from Thesseus
relating to any such employment or engagement by the Company or any Affiliate
thereof.
4.12 Investment Intent. The Company is acquiring the Portfolio
Shares for investment, for its own account, and not with a view to, or for
resale in connection with, any distribution thereof, nor with any current
intention of distributing the Note, or any portion thereof, in violation of the
securities laws of the United States or any foreign jurisdiction.
4.13 No Misrepresentation by the Company. No representation,
warranty or statement by the Company in this Agreement or in any certificate,
exhibit or schedule furnished pursuant hereto or in connection with the
transactions contemplated hereby contains any untrue statement of a material
fact or omits to state a material fact necessary to make the statements or facts
contained herein or therein not misleading.
ARTICLE V
DELIVERY OF DOCUMENTS
5.1 Deliveries by the Company. Upon execution of the Agreement,
the Company shall deliver to Thesseus a certificate in the name of Thesseus
representing the Common Shares.
5.2 Deliveries by Thesseus. Upon execution of this Agreement,
Thesseus shall deliver to the Company the certificates representing the
Portfolio Shares, duly endorsed in favor of the Company or with a duly executed
blank stock power in its favor.
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ARTICLE VI
POST-CLOSING COVENANTS
6.1 Confidentiality. From and after the execution of this
Agreement, the parties hereto shall keep absolutely confidential all information
relating to or concerned with the Company or the investment of Thesseus therein.
The parties shall not, at any time after the date hereof, use or disclose to any
Person any such information without the written consent of all other parties,
except as may be required by Law (in which case the party shall promptly give
notice to the other parties of any demand, subpoena, order or other legal
process requiring disclosure, in order to permit such parties to seek an
appropriate protective order or other confidential treatment of such
information).
6.2 Keeping of Books and Records; Inspection thereof. The Company
shall keep adequate records and books of account, with complete entries made in
accordance with generally accepted accounting principles consistently applied,
reflecting all of its financial transactions. The Company shall permit and
direct Thesseus, or any agents or representatives thereof, at any reasonable
time and from time to time upon reasonable prior notice, to examine and make
copies of and abstracts from the Company's records and books of account, to
visit and inspect the Company's properties and it discuss the Company's affairs,
finances and accounts with any of the directors, officers, employees or other
representatives of the Company.
6.3 Cooperation in Regulatory Filings. The Company shall provide
all reasonable cooperation to Thesseus and its authorized representatives in the
preparation and making of any necessary regulatory filings with any Governmental
Authority.
6.4 Public Announcements. Neither Thesseus nor the Company shall
make or permit any Affiliate thereof to make, any press release or other public
announcement with respect to this Agreement or the transactions contemplated
hereby, without the prior written consent of the other party (which consent
shall not be unreasonably withheld), unless such announcement is required by
Law, in which case the other parties shall be given notice of such requirement
prior to such announcement and the parties shall consult with each other as to
the scope and substance of such disclosure.
ARTICLE VII
INDEMNIFICATION
7.1 Indemnification by the Company. From and after the execution
of this Agreement, the Company shall indemnify and defend Thesseus against, and
hold Thesseus harmless from, and will pay to Thesseus the amount of, any loss,
claim, liability, obligation, damage or expense (including without limitation
attorneys' and consultants' fees and
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disbursements and expenses of investigating, defending and prosecuting) which
Thesseus or any shareholder, director, officer, member, manager, employee or
agent of Thesseus may suffer or incur (including without limitation incidental
to any claim or any Proceeding against Thesseus or any shareholder, director,
officer, member, manager, employee or agent of Thesseus) based upon or resulting
from:
(a) the breach or inaccuracy of any representation or
warranty made by the Company herein or pursuant hereto; or
(b) the failure of the Company to perform or to comply
with any covenant or condition required of the Company to be performed or
complied with hereunder.
7.2 Indemnification by Thesseus. From and after the execution of
this Agreement, Thesseus shall indemnify and defend the Company against, and
hold the Company harmless from, and will pay to the Company the amount of, any
loss, claim, liability, obligation, damage or expense (including without
limitation attorneys' and consultants' fees and disbursements and expenses of
investigating, defending and prosecuting) which the Company may suffer or incur
(including without limitation incidental to any claim or any Proceeding against
the Company) based upon or resulting from:
(a) the breach or inaccuracy of any representation or
warranty made by Thesseus herein or pursuant hereto; or
(b) Thesseus's failure to perform or to comply with any
covenant or condition required of Thesseus to be performed or complied with
hereunder.
7.3 Indemnification Procedures.
(a) Promptly after notice to an indemnified party of any
claim or the commencement of any Proceeding by a third party subject to Sections
7.1 or 7.2 above, such indemnified party shall, if a claim for indemnification
in respect thereof is to be made against an indemnifying party pursuant to this
Article VII, give written notice to the latter of the commencement of such claim
or Proceeding, setting forth in reasonable detail the nature thereof and the
basis upon which such party seeks indemnification hereunder, provided, however,
that the failure of any indemnified party to give such notice shall not relieve
the indemnifying party of its obligations hereunder, except to the extent that
the indemnifying party is actually prejudiced by the failure to give such
notice.
(b) In case any Proceeding is brought against an
indemnified party, and provided that proper notice is duly given, the
indemnifying party shall assume the defense thereof insofar as such Proceeding
involves any loss, liability, claim, obligation, damage or expense in respect of
which indemnification may be sought hereunder, with counsel
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reasonably satisfactory to such indemnified party and, after notice from the
indemnifying party to the indemnified party of its assumption of the defense
thereof, the indemnifying party shall not be liable to the indemnified party for
any legal or other expenses subsequently incurred by the latter in connection
with the defense thereof (but the indemnified party shall have the right, but
not the obligation, to participate at its own expense in such defense by counsel
of its own choice) or for any amounts paid or foregone by the latter as a result
of the settlement or compromise thereof (without the written consent of the
indemnifying party). If the indemnifying party shall assume the defense of a
Proceeding, the indemnified party shall cooperate fully with the indemnifying
party and shall appear and give testimony, produce documents and other tangible
evidence, allow the indemnifying party access to the books and records of the
indemnified party and otherwise assist the indemnifying party in conducting such
defense.
(c) If both the indemnifying party and the indemnified
party are named as parties in or are subject to a Proceeding and either such
party determines with advice of counsel that there may be one or more legal
defenses available to it that are different from or additional to those
available to the other party or that a material conflict of interest between
such parties may exist in respect of such Proceeding, the indemnifying party may
decline to assume the defense on behalf of the indemnified party or the
indemnified party may retain the defense on its own behalf and, in either such
case, after notice to such effect is duly given hereunder to the other party,
the indemnifying party shall be relieved of its obligation to assume the defense
on behalf of the indemnified party, but shall be required to pay any legal or
other expenses, including, without limitation, reasonable attorneys' fees and
disbursements incurred by the indemnified party in such defense; provided,
however, that the indemnifying party shall not be liable for such expense on
account of more than one separate firm of attorneys (and, if necessary, local
counsel) at any time representing such indemnified party in connection with any
Proceeding or separate Proceedings in the same jurisdiction arising out of or
based upon substantially the same allegations or circumstances.
(d) No indemnifying party shall, without the consent of
the indemnified party, consent to entry of any judgment or enter into any
settlement or compromise which does not include as an unconditional term thereof
the giving by the claimant or plaintiff to such indemnified party of a release
from all liability in respect of such Proceeding (but the indemnifying party
shall have the right to participate at its own cost and expense in such defense
by counsel of its own choice) and may make in good faith any compromise or
settlement with respect thereto, and recover the entire cost and expense
thereof, including without limitation reasonable attorneys' fees and
disbursements and all amounts paid and foregone as a result of such Proceeding,
or the settlement or compromise thereof, from the indemnifying party. The
indemnification required shall be made by periodic payments of the amount
thereof during the course of the investigation or defense, as and when bills or
invoices are received or loss, liability, obligation, damage or expense is
actually suffered or incurred.
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7.4 Survival of Representations and Warranties. The
representations and warranties of each party herein shall, notwithstanding any
investigation or inquiry made by the other party, continue until the later of
three years after the execution of this Agreement or until the expiration of the
applicable statute of limitations. Any claim for indemnification under Section
7.1 (a) or Section 7.2 (a) shall be made within the applicable survival period
set forth in this Section 7.4.
ARTICLE VIII
MISCELLANEOUS
8.1 Limitation of Authority. No provision hereof shall be deemed
to create any partnership, joint venture or joint enterprise or association
between the parties hereto, or to authorize or to empower either party hereto to
act on behalf of, obligate or bind the other party hereto.
8.2 Fees and Expenses. Each party hereto shall bear such costs,
fees and expenses as may be incurred by it in connection with this Agreement and
the transactions contemplated hereby.
8.3 Notices. Any notice or demand required or permitted to be
given or made hereunder to or upon either party hereto shall be deemed to have
been duly given or made for all purposes if (a) in writing and sent by (i)
messenger or an overnight courier service against receipt, or (ii) certified or
registered mail, postage paid, return receipt requested, or (b) sent by
telegram, facsimile transmission, telex or similar electronic means, provided
that a written copy thereof is sent on the same day by postage paid first-class
mail, to such party at the its address first set forth above, or such other
address as either party hereto may at any time, or from time to time, direct by
notice given to the other party in accordance with this Section. The date of
giving or making of any such notice or demand shall be, in the case of clause
(a)(i), the date of the receipt; in the case of clause (a)(ii), five business
days after such notice or demand is sent; and, in the case of clause (b), the
business day next following the date such notice or demand is sent.
8.4 Amendment. Except as otherwise provided herein, no amendment
of this Agreement shall be valid or effective, unless in writing and signing by
or on behalf of the parties hereto.
8.5 Waiver. No course of dealing or omission or delay on the part
of either party hereto in asserting or exercising any right hereunder shall
constitute or operate as a waiver of any such right. No waiver of any provision
hereof shall be effective, unless in writing and signed by or on behalf of the
party to be charged therewith. No waiver shall be deemed a continuing waiver or
waiver in respect of any other or subsequent breach or default, unless expressly
so stated in writing.
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8.6 Governing Law. This Agreement shall be governed by, and
interpreted and enforced in accordance with, the laws of the State of Nevada,
without regard to principles of choice of law or conflict of laws.
8.7 Remedies. In the event of any actual or prospective breach or
default by either party hereto, the other party shall be entitled to equitable
relief, including remedies in the nature of rescission, injunction and specific
performance. All remedies hereunder are cumulative and not exclusive, and
nothing herein shall be deemed to prohibit or limit either party from pursuing
any other remedy or relief available at law or in equity for such actual or
prospective breach or default, including the recovery of damages; provided,
however, that the indemnification provisions of Article 10 shall be the sole and
exclusive remedy with respect to claims for monetary damages.
8.8 Severability. The provisions hereof are severable and in the
event that any provision of this Agreement shall be determined to be invalid or
unenforceable in any respect by a court of competent jurisdiction, the remaining
provisions hereof shall not be affected, but shall, subject to the discretion of
such court, remain in full force and effect, and any invalid or unenforceable
provision shall be deemed, without further action on the part of the parties
hereto, amended and limited to the extent necessary to render the same valid and
enforceable.
8.9 Further Assurances. Each party hereto covenants and agrees
promptly to execute, deliver, file or record such agreements, instruments,
certificates and other documents and to perform such other and further acts as
the other party hereto may reasonably request or as may otherwise be necessary
or proper to consummate and perfect the transactions contemplated hereby.
8.10 Assignment. This Agreement, and each right, interest and
obligation hereunder, may not be assigned, whether by operation of law, merger,
consolidation or otherwise, by any party hereto without the prior written
consent of the other parties hereto, and any purported assignment without such
consent shall be void and without effect.
8.11 Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
permitted assigns. This Agreement is not intended, and shall not be deemed, to
create or confer any right or interest for the benefit of any Person not a party
hereto.
8.12 Incorporation by Reference. The Exhibits and Schedules hereto
are an integral part of this Agreement and are incorporated in their entirety
herein by this reference.
8.13 Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which shall be deemed to be an original, but all of which taken together shall
constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement by their
duly authorized representatives as of the date first above written.
THESSEUS INTERNATIONAL THESSEUS HOLDINGS, INC.
ASSET FUND N.V.
By: By:
------------------------- -----------------------------
Xxxxx Xxxxxxx Xxxxx Xxxxxx
Its Secretary Its President
ATTACHMENTS:
Exhibit "A" BCP Statement of Rights and Preferences
Exhibit "B" IDMS Statement of Rights and Preferences
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