EXHIBIT 2:4:
12-17-02
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STOCK PURCHASE AGREEMENT
By and Among
NORRTULLS MOBILEXTRA AKTIEBOLAG
TIGER TELEMATICS, INC.,
And
TIGER TELEMATICS, LTD.
Dated December __, 2002
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TABLE OF CONTENTS
Page
ARTICLE I PURCHASE OF ASSETS AND ASSUMPTION OF LIABILITIES..............1
1.1 Sale and Purchase of the Assets..................................1
1.2 Excluded Assets..................................................2
1.3 Assumed Liabilities..............................................2
1.4 Retained Liabilities.............................................2
ARTICLE II PURCHASE PRICE; CLOSING.......................................2
2.1 Purchase Price...................................................2
2.2 .................................................................3
2.3 Closing Time and Place...........................................3
2.4 Transfer of Title to Acquired Assets; Assumption of Liabilities..3
a Employees........................................................3
b Collection of Assets.............................................3
ARTICLE III REPRESENTATIONS AND WARRANTIES OF TARGET......................3
3.1 Organization.....................................................4
3.2 Capitalization and Ownership.....................................4
3.3 Subsidiaries.....................................................4
3.4 Authorization and Enforceability.................................4
3.5 No Conflict; No Violation of Laws or Agreements..................4
3.6 Financial Statements.............................................5
3.7 No Undisclosed Liabilities.......................................5
3.8 Brokerage........................................................6
3.9 Title to Assets; Liens...........................................6
3.10 Trade Payables...................................................6
3.11 Accounts Receivable..............................................6
3.12 Contracts........................................................6
3.13 Employee Benefit Plans...........................................7
3.14 Labor Relations; Employees.......................................7
3.15 Regulatory Actions or Investigations.............................7
3.16 Copies of Documents..............................................7
3.17 Taxes............................................................7
3.18 Inventory........................................................8
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TABLE OF CONTENTS
(continued)
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3.19 Absence of Certain Changes.......................................8
3.20 Intellectual Property...........................................10
3.21 Trade Secrets and Customer Lists................................10
3.22 Litigation......................................................11
3.23 Compliance with Laws............................................11
3.24 Product Warranty................................................12
3.25 Product Liability...............................................12
3.26 Powers of Attorney..............................................12
3.27 Authorizations..................................................12
3.28 Transactions with Interested Persons............................12
3.29 Hazardous Materials; Environmental Compliance; Disclosure of
Environmental Information.......................................12
3.30 Backlog.........................................................13
3.31 Customers, Distributors and Independent Sales Representatives...13
3.32 Disclosure of Material Information and Potentially Adverse
Developments....................................................14
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS...............14
4.1 Organization....................................................14
4.2 Authorization and Enforceability................................14
4.3 No Conflict; No Violation of Laws or Agreements.................14
4.4 Consents........................................................15
4.5 Brokerage.......................................................15
ARTICLE V REPRESENTATION AND WARRANTIES OF BUYER.......................15
5.1 Organization....................................................15
5.2 Capitalization and Ownership....................................15
5.3 Subsidiaries....................................................15
5.4 Authorization and Enforceability................................16
5.5 No Conflict; No Violation of Laws or Agreements.................16
5.6 Consents........................................................16
5.7 Financial Statements............................................16
5.8 No Undisclosed Liabilities......................................17
5.9 Litigation and Claims...........................................17
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TABLE OF CONTENTS
(continued)
Page
5.10 Brokers.........................................................17
5.11 Truth and Accuracy of Disclosures...............................17
ARTICLE VI PRE-CLOSING COVENANTS OF TARGET AND SELLER...................17
6.1 Conduct of Business.............................................17
6.2 Authorization from Others.......................................18
6.3 Breach of Representations and Warranties........................18
6.4 Consummation of Agreement.......................................19
6.5 Confidentiality.................................................19
6.6 No Solicitation of Other Offers.................................19
6.7 Access, Information, and Documents..............................19
ARTICLE VII PRE-CLOSING COVENANTS OF BUYER...............................19
7.1 Consummation of Agreement.......................................19
7.2 Confidentiality.................................................20
7.3 Authorization from Others.......................................20
7.4 Breach of Representations and Warranties........................20
ARTICLE VIII CONDITIONS TO CLOSING........................................20
8.1 Conditions Precedent to Obligations of Buyer....................20
8.2 Conditions Precedent to the Obligations of Target...............21
ARTICLE IX TERMINATION..................................................21
9.1 Termination of Agreement........................................21
9.2 Effect of Termination...........................................22
ARTICLE X CERTAIN ADDITIONAL COVENANTS.................................22
10.1 Costs, Expenses, and Transfer Taxes.............................22
10.2 ................................................................22
ARTICLE XI INDEMNIFICATION..............................................22
11.1 Materiality; Survival...........................................22
11.2 Indemnification Rights of Buyer.................................22
11.3 Indemnification Rights of Seller ...............................24
11.4 Indemnification Payments and Dispute Resolution.................24
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TABLE OF CONTENTS
(continued)
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ARTICLE XII MISCELLANEOUS................................................25
12.1 Notices.........................................................25
12.2 Successors and Assigns..........................................26
12.3 Construction....................................................26
12.4 Governing Law...................................................24
12.5 Headings........................................................27
12.6 Counterparts....................................................27
12.7 Further Assurances..............................................27
12.8 Course of Dealing...............................................27
12.9 Severability....................................................27
12.10 Entire Agreement................................................27
Exhibit Definitions.............................................28
Exhibits and schedules to purchase agreement....................32
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SHARE PURCHASE AGREEMENT
This SHARE PURCHASE AGREEMENT (the "Agreement"), is made and entered into
December 20, 2002, by and among TIGER TELEMATICS, INC., a Delaware corporation
("Seller"), TIGER TELEMATICS, LTD. a United Kingdom corporation ("Target"), and
Norrtulls Mobilextra Aktiebolag ("Buyer").
BACKGROUND:
Buyer is a Swedish corporation engaged in retail sale of
telecommunication equipment.
Target is the wholly owned subsidiary of seller Tiger Telematics, Inc. (Seller).
Target is engaged in the business of developing, manufacturing and marketing
automotive telematics products (the "Business") in Europe. Target has developed
other unrelated products, Childtracker and non Eagle Eye Telematics tracking
units that have been transferred to another UK subsidiary of Seller.
Buyer desires to purchase and Seller desires to sale the common stock of Target
and Target desires to sell, transfer and deliver to Buyer, certain of the assets
and liabilities of Target in exchange for a Royalty Agreement on the terms and
conditions of this Agreement. Buyer specifically wants the Scandinavian orders
for Eagle Eye Product "Order Book", the prepaid commission on the Order Book,
the inventory of finished goods Eagle Eye telematics units and to assume all
rights under the Eagle Eye Distribution Agreement.
The Seller has in other UK subsidiaries orders relating to London, Hertz, Easy
Car, and any order potential that is unrelated to the Order Book. Wireless phone
agreements relative to O2, Vodaphone, and Orange etc. have been placed by Seller
in another subsidiary and are not a part of the sale. Correspondingly, the
Seller has transferred all Directors and related party shareholder debt to the
other UK subsidiaries to offset the transfer of these assets.
In addition, Buyer will enter into a 10 year Royalty Agreement, (collectively,
the "Related Agreements") immediately prior to the consummation of the
transactions contemplated hereby. All capitalized (and as noted herein,
uncapitalized) words or expressions used in this Agreement (including the
Schedules and Exhibits annexed hereto) not otherwise defined herein have the
meanings specified in Exhibit A hereto (such meanings to be equally applicable
to both the singular and plural forms of the terms defined). This Agreement and
the agreements and instruments to be executed and delivered at Closing are
referred to collectively herein as the "Transaction Agreements" and the
transactions contemplated by the Transaction Agreements are referred to
collectively herein as the "Transactions".
In consideration of the foregoing, the mutual representations, warranties and
covenants set forth in this Agreement, and for the good and valuable
consideration, the sufficiency of which is hereby acknowledged, the parties
hereto agree as follows:
ARTICLE I
PURCHASE OF ASSETS AND ASSUMPTION OF LIABILITIES
1.1 Sale and Purchase of the Assets. Upon the terms and subject to the
conditions contained in this Agreement, at the Closing, Target shall sell,
transfer, assign, convey and deliver to Buyer, and Buyer shall purchase, acquire
and accept, all of Target's right, title and interest in and to, the shares of
common stock of Target as set forth on the balance sheet of Target at the
Closing Date (the "Closing Balance Sheet") and any and all contracts (the
"Assumed Contracts") to which Target is a party (collectively, the "Acquired
Assets"). For sake of clarity, a true, correct and complete listing of the
assets of Target as of the date of this Agreement, that would constitute all of
the Acquired Assets if the Closing Date is the same date as the date hereof, is
set forth on Schedule I hereto.
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1.2 Excluded Assets. The Acquired Assets shall exclude only those assets
that are not reflected on the Closing Balance Sheet or Schedule I or that do not
consist of Assumed Contracts (collectively, the "Excluded Assets"), a true,
correct and complete listing of which as of the date of this Agreement is set
forth on Schedule II hereto.
1.3 Assumed Liabilities. Buyer shall assume and discharge of all the
liabilities of Target set forth on the Closing Balance Sheet, including without
limitation, and liabilities arising in respect of the Assumed Contracts
(collectively, the "Assumed Liabilities"). A true, correct and complete listing
of all liabilities of Target to be assumed by Buyer, that would constitute all
of the Assumed Liabilities if the Closing Date is the same date as the date
hereof, and their amounts as of the date of this Agreement is set forth on
Schedule III hereto.
1.4 Retained Liabilities. Except for the Assumed Liabilities, Buyer shall
not assume, become liable for or obligated for any of Target's obligations,
liabilities or indebtedness in respect of the Excluded Assets (all such
liabilities and obligations of Target, other than the Assumed Liabilities, the
"Retained Executed Liabilities").
ARTICLE II
PURCHASE PRICE; CLOSING
2.1 Purchase Price. In consideration for the acquired shares buyer shall
agree to enter into a Royality Agreement. This Royalty Agreement attached as
Exhibit B-1 should pay to Tiger Inc. or its designee UK based subsidiary an
annual royalty equal to 20% of the net profit from sales of the Order Book for a
period of 10 years.
2.2
2.3 Closing Time and Place. The closing of the transactions contemplated
by this Agreement (the "Closing") will take place at the offices of Tiger
Telematics, Ltd., as soon as practicable following the date hereof on such date
as Target and Buyer shall agree. The date on which the Closing occurs is
hereinafter referred to as the "Closing Date."
2.4 Transfer of Title to Acquired Assets; Assumption of Liabilities. The
sale, assignment, conveyance, transfer, and delivery by Target of the acquired
shares and associated Acquired Assets shall be made at the Closing by
appropriate bills of sale, assignments, endorsements, and such other appropriate
instruments of transfer sufficient to vest in Buyer as of the Closing Date title
to the Acquired Assets that are owned, and a valid and assignable leasehold
interest in the Acquired Assets that are leased by Target. Such instruments of
assignment, conveyance, and transfer shall include without limitation a xxxx of
sale transferring title to tangible assets and an assignment transferring title
to intangible assets. Risk of loss of the Acquired Assets shall pass from Target
to Buyer at Closing. Buyer will execute and deliver to Target at the Closing an
Assumption Agreement with respect to the Assumed Liabilities and an Assignment
and Assumption of Lease Agreement with respect to each of the real property
leases to be assumed.
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(a) Employees. Attached hereto as Schedule 5 is a list of all
employees of Target that are expected to be employed by Buyer post-closing (the
"Retained Employees"). Schedule 5 sets forth the amount of all expenses,
including without limitation accrued vacation, unpaid expense reimbursement and
accrued salary (collectively, the "Employment Expenses") currently owed to the
Retained Employees. Target shall update Schedule 55 at Closing to provide
definitive lists of Retained Employees and Employment Expenses.
(b) Collection of Assets. Subsequent to the Closing, Buyer shall
have the right and authority to collect all receivables and other items
transferred and assigned to it by Target hereunder and to endorse with the name
of Target any checks received on account of such receivables or other items, and
Target agrees that it will promptly transfer or deliver to Buyer from time to
time, any cash or other property that Target may receive with respect to any
claims, contracts, licenses, leases, commitments, sales orders, purchase orders,
receivables of any character included in the Acquired Assets or any other items
included in the Acquired Assets.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF TARGET
Target hereby represents and warrants to Buyer, as of the date hereof and as of
the Closing Date (except as such representations and warranties may be amended,
modified or limited by any of the matters disclosed on any portion of the List
of Schedule (whether specifically identified in this Article III or not)
attached hereto as List of Schedules hereto (the "List of Schedule"), as
follows:
3.1 Organization. Target is a corporation duly organized, validly
existing, and in good standing under the laws of the United Kingdom certified by
the Company House and of Target's Bylaws, as amended to date, certified by
Target's Director, are complete and correct and no amendments thereto have been
filed or are pending. Target is and has been at all times in compliance with its
Articles and Bylaws. Target is duly qualified or licensed to conduct business as
a foreign corporation in and is in good standing in each jurisdiction in which
the nature of business as conducted by Target or the character and nature of any
of the Acquired Assets make such qualification necessary, all of which
jurisdictions are listed on the List of Schedule.
3.2 Capitalization and Ownership. The authorized capital stock of Target
consists of 100 shares of common stock, no par value, of which 1 shares of
common stock are issued and outstanding, All of such issued and outstanding
shares of capital stock of Target are owned beneficially and of record by Tiger
Telematics, Inc., have been duly authorized, validly issued, are fully paid and
nonassessable, were not issued in violation of the terms of any agreement or
other understanding binding upon Target or any other Person and were issued in
compliance with all applicable federal and state securities or "blue-sky" laws
and regulations. Except as set forth on the List of Schedule, there are no
outstanding securities, options, warrants, rights, agreements, calls,
subscription commitments, demands, or understandings of any character
whatsoever, fixed or contingent, that directly or indirectly (i) call for the
issuance, sale or other disposition of any capital stock of Target and there are
no securities convertible into or exchangeable for the stock of Target or (ii)
obligate Target to grant, offer or enter into any of the foregoing or (iii)
relate to the voting or control of any capital stock of Target. No person has
any right to require Target to register any securities of Target under the
Securities Act of 1933.
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3.3 Subsidiaries. Target has no interests, direct or indirect, in any
other Person.
3.4 Authorization and Enforceability. Seller and Target has all requisite
corporate power and authority to execute and deliver the Transaction Agreements
and to perform its obligations thereunder. Target's execution and delivery of,
and the performance of its obligations under, the Transaction Agreements have
been duly and validly authorized by all necessary corporate action. This
Agreement has been, and upon their execution and delivery by Target, the other
Transaction Agreements will be, duly executed and delivered on behalf of Target
and constitutes and will constitute the legal, valid, and binding obligations of
Target, enforceable against Target in accordance with their respective terms
subject to general equitable principles and except as the enforceability of the
Transaction Agreements may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws of general application relating
to creditors' rights.
3.5 No Conflict; No Violation of Laws or Agreements. The execution and
delivery of this Agreement do not, the execution and delivery of the other
Transaction Agreements will not, and the consummation of the Transactions and
the compliance with the terms, conditions, and provisions of the Transaction
Agreements by Target will not:
(a) contravene any provision of Target's Charter or Bylaws;
(b) conflict with, constitute or result in any breach, default or
violation of (or an event which might, with or without the passage of time or
the giving of notice or both, constitute or result in a breach, default or
violation of) (i) any of the terms, conditions, or provisions of any indenture,
mortgage, loan, credit agreement, or any other instrument, contract, agreement
or commitment to which Target is a party, or by which any Target, any of
Acquired Assets may be bound or affected, (ii) any judgment or order of any
Governmental Authority, or (iii) any law, rule or regulation;
(c) result in the creation or imposition of any Lien upon any
Acquired Assets or give to others any interests or rights therein;
(d) result in the acceleration of any liability or obligation of
Target (or give others the right to cause such acceleration); or
(e) result in the reduction of, termination of or loss of any
right (or give others the right to cause such a reduction, termination or loss)
under any Assumed Contract
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No consent or waiver by, approval of, or designation, declaration or filing
with, any Person, governmental authority or entity (or any department, agency,
or political subdivision thereof) is required in connection with the execution,
delivery and performance by Target of the Transaction Agreements.
3.6 Financial Statements.
(a) Set forth on the List of Schedule is (i) a true and correct
copy of the unaudited consolidated balance sheet of Target as of February 4,
2002 (the "Target Financial Statement Date") and the related consolidated
statements of income and cash flows for the fiscal year then ended
(collectively, the "Target Year-End Financial Statements"), and (ii) the
unaudited consolidated balance sheet of Target and related statement of income
and cash flows as of, and for the month period ended October 30, 2002 (the
"Target Interim Statements" and, together with the Target Year-End Financial
Statements, the "Target Financial Statements").
(b) The Target Financial Statements: (i) were prepared from and
are consistent with the Books and Records of Target, which Books and Records
have been maintained in accordance with all legal and accounting requirements
and completely and accurately reflect all financial transactions of Target, (ii)
were prepared in accordance with GAAP consistently applied; and (iii) are
correct and complete and present fairly the financial condition of Target and
the results of its operations for the periods covered by, and as at the dates
of, each of the Target Financial Statements except that the Target Interim
Statements omit footnote disclosures and do not reflect year end adjustments
which will not, in the aggregate, be material. The income statements included in
the Target Financial Statements do not contain any material items of special or
non-recurring income or other income not earned in the ordinary course of
business except as expressly specified therein.
3.7 No Undisclosed Liabilities. Except as set forth on the List of
Schedule, Target does not have any material liability or obligation of any
nature, whether due or to become due, absolute, contingent, or otherwise,
whether direct or indirect, except (a) to the extent reflected as a liability on
the Target Financial Statements, or (b) material liabilities incurred in the
ordinary course of business (and not in violation of this Agreement) since the
Target Financial Statement Date and fully reflected as liabilities on the
appropriate books of account (and which will be fully reflected as liabilities
on the Closing Balance Sheet).
3.8 Brokerage. Neither Target nor anyone acting on behalf of Target has
engaged, retained or incurred any liability to any broker, investment banker,
finder or agent, made any agreement or taken any other action which might cause
anyone to become entitled to a broker's fee or commission or agreed to pay any
brokerage fees, commissions, finder's fees or other fees with respect to or as a
result of the Transactions.
3.9 Title to Assets; Liens.
Target has good and marketable title to the Acquired Assets that are owned and a
valid and assignable (unless otherwise disclosed on the List of Schedule)
leasehold interest in the Acquired Assets that are leased. The Acquired Assets
are free and clear of all mortgages, liens, security interests, pledges, charges
and other encumbrances, except for liens for current taxes not yet due and
payable or being contested in good faith by appropriate proceedings, and such
imperfections of title, easements and encumbrances as do not materially detract
from the value of the properties subject thereto or affected thereby or
otherwise do not materially interfere with their present or future use in a
manner consistent with present practices or materially impair the operation of
the Business. The Acquired Assets constitute all of the material assets used to
conduct the Business.
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3.10 Trade Payables. All of the trade payables have been incurred in the
ordinary course of the Business and is set forth on the List of Schedule, which
also includes a trade payable aging report.
3.11 Accounts Receivable. A complete and accurate listing of all accounts
receivable of Target included in the Acquired Assets as of the date hereof
accurately reflecting the aging thereof is set forth on the List of Schedule.
All such accounts receivable are valid and enforceable claims, are subject to no
set off or counterclaim and are fully collectible in the ordinary course of
business.
3.12 Contracts. Except for contracts, commitments or agreements that (i)
are described List of Schedule in the List of Schedule hereto or (ii) relate
exclusively to the Excluded Assets and are not to be assigned to or assumed by
Buyer, Target is not a party to or subject to any contract, commitment or
agreement that is material to the operation of the Business. Copies of all
contracts, commitments, plans, agreements or licenses described in List of
Schedule in the List of Schedule have been provided to Buyer or its counsel
prior to the execution of this Agreement and are true, correct and complete, and
have not been subject to any amendment, extension or other modification as of
the date hereof. Each contract, commitment, plan agreement and license described
List of Schedule in the List of Schedule is binding and enforceable in
accordance with its terms and is in full force and effect without any default
(other than payment defaults as noted List of Schedule in the List of Schedule)
thereunder by Target or, to the knowledge of Target, by any other party thereto
(a "default" being defined for purposes hereof as an actual default or any set
of facts that would, upon receipt of notice or passage of time, constitute a
default), and except as otherwise set forth List of Schedule in the List of
Schedule such contracts, commitments and agreements are assignable by Target
3.13 Employee Benefit Plans. All employee benefit plans, as that term is
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended, ("ERISA"), currently maintained by Target or to which Target has an
obligation to contribute (the "Employee Benefit Plans") are described List of
Schedule in the List of Schedule. No event has occurred nor has there been any
omission which would result in violation of any laws, rulings or regulations
applicable to any Employee Benefit Plan. There are no claims pending or, to the
knowledge of Target, threatened with respect to any Employee Benefit Plan, other
than claims for benefits by employees, beneficiaries or dependents arising in
the normal course of the operation of any such plan. All contributions
(including all employer contributions and employee salary reduction
contributions) that are due have been paid to each such Employee Benefit Plan.
All premiums or other payments for all periods ending on or before the Closing
Date have been paid with respect to each such Employee Benefit Plan.
3.14 Labor Relations; Employees. Target employs approximately 15
employees and generally enjoys a good employer-employee relationship. Except as
set forth on the List of Schedule, Target is not delinquent in payments to any
of its employees for any wages, salaries, commissions, bonuses or other direct
compensation for any services performed for it to the date hereof or amounts
required to be reimbursed to such employees. Upon termination of the employment
of Target's employees, neither Target nor Buyer will by reason of anything done
prior to the Closing be liable to any of such employees for so-called "severance
pay" or any other payments. Target has not implemented any written or oral
policy that would contravene or contradict the "employment at will" policy.
Target is in compliance with all applicable laws and regulations respecting
labor, employment, fair employment practices, terms and conditions of
employment, and wages and hours.
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3.15 Regulatory Actions or Investigations. Target is not now a party to,
and has not been apprised or notified of, any regulatory investigation or
proceeding contemplated, pending or initiated by any federal or state agency or
governmental unit.
3.16 Copies of Documents. Target has made available for inspection and
copying by Buyer and its counsel true and correct copies of all documents
referred to in List of Schedule.
3.17 Taxes.
(a) Definitions. As used herein, "IRC" means the Internal Revenue
Code of 1986, as amended and interpreted by treasury regulations; "Tax Return"
means any return, declaration, report, claim for refund, or information return
or statement relating to Taxes, including any schedule or attachment thereto,
and including any amendment thereof; and "Taxes" means any federal, state,
local, or foreign income, gross receipts, license, payroll, employment, excise,
severance, stamp, occupation, premium, windfall profits, environmental, customs
duties, capital stock, franchise, profits, withholding, social security (or
similar), unemployment, disability, real property, personal property, sales,
use, transfer, registration, value added, alternative or add-on minimum,
estimated, or other tax of any kind whatsoever, including any interest, penalty,
or addition thereto, whether disputed or not.
(b) Returns and Payments. Target has filed all Tax Returns that it
was required to file. All such Tax Returns are correct and complete in all
respects. All Taxes owed by Target (whether or not shown on any Tax Return) have
been paid. Target currently is not the beneficiary of any extension of time
within which to file any Tax Return. No claim has ever been made by an authority
in a jurisdiction where Target does not file Tax Returns that it is or may be
subject to taxation by that jurisdiction. There are no liens, encumbrances, or
charges against any of the assets of Target that arose in connection with any
failure (or alleged failure) to pay any Tax.
(c) Withholding Taxes. Target has withheld and paid all Taxes
required to have been withheld and paid in connection with amounts paid or owing
to any employee, independent contractor, creditor, shareholder, or other third
party.
(d) Tax Liabilities. Neither Target, nor any of Target's officers,
directors, or employees responsible for Tax matters has knowledge of any facts
that would lead them to expect any authority to assess any additional Taxes for
any period for which Tax Returns have been filed. There is no dispute or claim
concerning any Tax liability of Target either claimed or raised by any authority
in writing or as to which any of target, Stockholder or any of Target's,
officers, directors, or employees responsible for Tax matters has knowledge
based upon personal contact with any agent of such authority. The List of
Schedule lists all Tax Returns filed for taxable periods ended on or after
December 31, 2000, indicates those Tax Returns that have been audited and
indicates those Tax Returns that currently are the subject of an audit. Target
has delivered to the Buyer correct and complete copies of all Tax Returns,
examination reports, closing agreements and statements of deficiencies assessed
against or agreed to by Target since December 31, 2002. Target has disclosed on
its federal income Tax Returns all positions taken therein that could give rise
to a substantial understatement of federal income Tax within the meaning of IRC
Section 6662.
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(e) Statute of Limitations. Target has not waived any statute of
limitations in respect of Taxes or agreed to any extension of time with respect
to a Tax assessment or deficiency.
(f) Affiliated Group. Target has not been a member of an
affiliated group filing a consolidated federal income Tax Return (other than a
group the common parent of which was Target) and has not incurred any liability
for the Taxes of any other person or entity (other than Target) under Treasury
Regulations Section 1.1502-6 (or similar provision of state, local, or foreign
law), as a transferee or successor, by contract, or otherwise. Target is not a
party to any Tax allocation or sharing agreement.
3.18 Inventory. A complete and accurate listing of the Inventory and the
pricing thereof is set forth List of Schedule in the List of Schedule. The
Inventory being sold is specifically and only the Eagle Eye product.
3.19 Absence of Certain Changes. Since the Target Financial Statement
Date and except as set forth on the List of Schedule there has not been:
(a) any operation of the Business out of the ordinary course of
business or any change in the financial condition, properties, assets,
liabilities, business, prospects or operations of the Business that changes, by
itself or in conjunction with all other such changes, or has been or is likely
to materially adversely affect, the Business;
(b) any purchase, sale, license or other disposition, or any
agreement or other arrangement for the purchase, sale, license or other
disposition, of any part of the Target's properties or assets (including any
patents, trademarks and copyrights) included in the Acquired Assets, other than
purchases for and sales from inventory in the ordinary course of business;
(c) any payment or discharge of a lien or liability of Target that
is not shown on the Target Financial Statements or incurred in the ordinary
course of business thereafter;
(d) any obligation or liability incurred by Target to any bank, to
any officer, director, employee or stockholder of Target, or, other than in the
ordinary course of business, to any other individual; or any loans or advances
made by Target to any officer, director, employee or stockholder of Target,
except for normal compensation and expense allowances payable to officers or
employees;
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(e) any capital expenditure by Target in excess of $10,000 for any
one item included in the Assets;
(f) any contracts relating to the Business, other than in the
ordinary course of business of the Business, entered into by Target that
obligate Target for more than $10,000 with respect to any one contract or more
than $25,000 with respect to the aggregate of all such contracts;
(g) any change in the accounting methods or practices followed by
Target or any change in depreciation or amortization policies or rates
theretofore adopted;
(h) any change in the manner in which inventory of Target used in
the Business is marketed or any increase in inventory levels in excess of
historical levels for comparable periods;
(i) any acceleration, termination, modification or cancellation of
any agreement, contract, lease or license relating to the Business (or series of
related agreements, contracts, leases or licenses) involving more than $10,000
to which Target is a party or by which it is bound;
(j) any issuance of any evidence of indebtedness or creation,
incurrence, assumption or guaranty of any indebtedness for borrowed money or
capital lease obligations involving in excess of $10,000 singly or $25,000 in
the aggregate;
(k) any delay or postponement of payment of any accounts payable
or other liabilities relating to the Business outside the ordinary course of
business;
(l) any change in the employment terms or employment-related
benefits for any independent sales representative or employee employed in the
Business outside the ordinary course of business; or
(m) any agreement or understanding, whether in writing or
otherwise, for Target to take any of the actions specified in paragraphs (a)
through (l) above.
3.20 Intellectual Property.
(a) All domestic and foreign patents, patent applications,
copyrighted works, copyright applications and registrations, trade secrets,
inventions, developments, customer lists, manufacturing and secret processes,
hardware designs, programming processes, software and other information,
know-how, trade names, trademarks and service marks, registered trademarks and
trademark applications, and registered service marks and service xxxx
applications (if any) that are used by, owned by or licensed to Target and that
relate to the Business (collectively, the "Intellectual Property") are listed on
the List of Schedule, which indicates, with respect to each, the nature of
Target's interest therein and the expiration date thereof or the date on which
the Target's interest therein terminates. Registered copyrights, patents,
trademarks and service marks that are owned by or licensed to Target and that
relate to the Business have been duly registered in, filed in or issued by, as
the case may be, the United States Patent and Trademark Office, the United
States Regist
9
(b) er of Copyrights or the corresponding offices of other
countries identified on the List of Schedule, and have been properly maintained
and renewed in accordance with all applicable provisions of law and
administrative regulations in the United States and each such country. The
Intellectual Property is the only intellectual property used in or otherwise
necessary to operate the Business as currently conducted or proposed to be
conducted.
(c) Except as set forth on the List of Schedule, use of the
Intellectual Property and any other intellectual property used by Target in the
Business does not require the consent of any other person and the same are
freely transferable (except as otherwise provided by law) and are owned
exclusively by Target, free and clear of any attachments, liens, encumbrances or
adverse claims, and neither its present or contemplated activities or products
infringe, misappropriate, dilute, impair or constitute unfair competition with
respect to any patent, trade name, trademark, copyright or other proprietary
rights of others.
(d) No other person has an interest in or right or license to use,
or the right to license others under, the Intellectual Property, other than the
rights of licensors and their licensees in the licensed intellectual property
identified on the List of Schedule. There are no claims or demands of any other
person pertaining thereto and no proceedings have been instituted, are pending
or threatened that challenge the rights of Target in respect thereof and Target
does not know of any fact that could be the basis of any such claim. There is no
infringement of any of the Intellectual Property by others nor is any of the
Intellectual Property subject to any outstanding order, decree, judgment,
stipulation, settlement, lien, charge, encumbrance or attachment. No claim or
demand has been made and no proceeding has been filed or is threatened to be
filed charging Target with infringement of any patent, trade name, trademark,
service xxxx or copyright and Target does not know of any facts which could be
the basis of any such claims. Except as set forth on the List of Schedule, there
are no royalties, honoraria, fees or other payments payable by Target to any
person with respect to any of the Intellectual Property.
3.21 Trade Secrets and Customer Lists. Except as set forth on the List of
Schedule, target owns or has the right to use, free and clear of any claims or
rights of others, all trade secrets, inventions, developments, customer lists,
manufacturing and secret processes, hardware designs, programming processes,
software and other information, and know-how (if any) required for or used in
the manufacture or marketing of all products formerly or presently sold,
manufactured, licensed, under development or produced by Target in the Business,
including products licensed from others. There are no payments that are required
to be made by Target for the use of such trade secrets, inventions,
developments, customer lists, copyrighted materials, manufacturing and secret
processes and know-how. Target is not using or in any way making any unlawful or
wrongful use of any confidential information, copyrighted materials, know-how or
trade secrets of any third party, including without limitation any former
employer of any present or past employee of Target or of any of Target's
predecessors. Target is not a party to any non-competition or confidentiality
agreement related to the Business with any party other than Buyer.
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3.22 Litigation. Except as set forth on the List of Schedule, there are
no suits, actions or administrative, arbitration or other proceedings or
governmental investigations pending or, to the knowledge of Target, threatened
against or relating to Target, the Acquired Assets or the Business. Target is
not otherwise engaged as a party in any suit, action or administrative,
arbitration or other proceeding. Target has not entered into or been subject to
any consent decree, compliance order, or administrative order with respect to
any property owned, operated, leased, or used by Target. Target has not received
any request for information, notice, demand letter, administrative inquiry, or
formal or informal complaint or claim with respect to any property owned,
operated, leased or used by Target or any facilities or operations thereon.
Target has not been named by the U.S. Environmental Protection Agency or a state
environmental agency as a potentially responsible party (or similar designation
under applicable state law) in connection with any site at which hazardous
substances, hazardous materials, toxic substances, oil, or petroleum products
have been released or are threatened to be released. There are no existing or,
to the knowledge of Target, threatened product liability, warranty or other
similar claims, or any facts upon which a claim of such nature could be based,
against Target for services or products that are defective or fail to meet any
service or product warranties. Target is not aware of any facts providing a
basis for any matter addressed in this Section 3.22 or has any reason to believe
that any such matters will be forthcoming.
3.23 Compliance with Laws. Target is not in violation of any laws, rules
or regulations that apply to the conduct of the Business or any facilities or
property owned, leased, operated or used by Target. There has never been any
citation, fine or penalty imposed, asserted or to the knowledge of Target,
threatened against Target under any foreign, federal, state, local or other law
or regulation relating to employment, immigration, occupational safety, zoning
or environmental matters and Target is not aware of any circumstances,
occurrences, or conditions likely to result in the imposition or assertion of
such a citation, fine or penalty, nor has Target received any notice to the
effect that it is in violation of any such laws or regulations.
3.24 Product Warranty. Each product manufactured, sold, leased, or
delivered by Target has conformed with all applicable contractual commitments
and all express and implied warranties. Target has no liability (and there is no
basis for any present or future action, suit, proceeding, hearing,
investigation, charge, complaint, claim, or demand which may give rise to any
liability) for replacement or repair thereof or other damages in connection
therewith, subject only to the reserve for product warranty claims set forth in
the Target Financial Statements as adjusted for the passage of time through the
Closing Date in accordance with the past custom and practice of Target. No
product manufactured, sold, leased, or delivered by Target is subject to any
guaranty, warranty, or other indemnity beyond the applicable standard terms and
conditions of sale or lease, all of which have been provided to Buyer by Target.
3.25 Product Liability. Target has no liability (and to the knowledge of
Target there is no basis for any present or future action, suit, proceeding,
hearing, investigation, charge, complaint, claim, or demand against it giving
rise to any liability) arising out of any injury to individuals or property as a
result of the ownership, possession, or use of any product manufactured, sold,
leased, or delivered by Target ("Product Liability").
3.26 Powers of Attorney. Target has not entered into any outstanding
power of attorney.
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3.27 Authorizations. Target has obtained and is in compliance with all
Authorizations and no proceeding is pending or, to the knowledge of Target,
threatened in which any Person or governmental authority is seeking to revoke or
deny the renewal of any Authorization. All Authorizations relating to the
Business are listed on the List of Schedule. Each Authorization is in full force
and effect without any default thereunder by Target (a "default" being defined
for purposes hereof as an actual default or any set of facts which would, upon
receipt of notice or passage of time, constitute a default), and can be assigned
by Target to Buyer hereunder such that it will remain in full force and effect
after giving effect to the Transactions. Target has not received any notice of
any claim or charge that Target has breached any Authorization.
3.28 Transactions with Interested Persons. Except as set forth on the
List of Schedule, neither any Stockholder nor any officer, supervisory employee
or director of Target nor any of their respective spouses or children, owns,
directly or indirectly, on an individual or joint basis, any material interest
in, or serves as an officer or director or in another similar capacity of, any
customer, competitor or supplier of Target, or any organization that has a
material contract or arrangement with Target, with respect to the Related
Agreements.
3.29 Hazardous Materials; Environmental Compliance; Disclosure of
Environmental Information.
(a) Target has never generated, used, stored or handled any
Hazardous Materials (as hereinafter defined) nor has it treated, stored,
disposed of, spilled or released any Hazardous Materials at any site presently
or formerly owned, leased, operated or used by target or shipped any Hazardous
Materials for treatment, storage or disposal at any other site or facilities. To
the knowledge of Target, no other person has ever generated, used, handled,
stored or disposed of any Hazardous Materials at any site presently or formerly
owned, leased, operated or used by Target, nor has there been or is there
threatened any release of any Hazardous Materials on or at any such site. Target
does not presently own or lease, nor has it previously owned or leased, any site
on which underground storage tanks are or were located. No lien has been imposed
by any governmental agency on any property, facility, machinery, or equipment
owned, operated, leased or used by Target in connection with the presence of any
Hazardous Materials. For purposes of this Section 3.29, "Hazardous Materials"
shall mean and include ethylene oxide, any hazardous waste, hazardous material,
hazardous substance, petroleum product, oil, toxic substance or pollutant as
defined in or pursuant to the Resource Conservation and Recovery Act, as
amended, the Comprehensive Environmental Response, Compensation and Liability
Act, as amended, the Hazardous Materials Transportation Act or any other
foreign, federal, state or local law, regulation, ordinance, rule or by-law,
whether existing as of the date hereof, previously enforced or subsequently
enacted pertaining to environmental or health and safety matters.
(b) To the knowledge of Target, Target has no liability under nor
has it ever violated any Environmental Law (as hereinafter defined) with respect
to any property owned, operated, leased, or used by Target and any facilities
and operations thereon. In addition, Target, any property owned, operated,
leased, or used by Target, and any facilities and operations thereon are
presently in compliance with all applicable Environmental Laws. Target has not
entered into or been subject to any consent decree, compliance order or
administrative order with respect to any environmental or health and safety
matter or received any request for information, notice, demand letter,
administrative inquiry, or formal or informal complaint or claim with respect to
any environmental or health and safety matter or any enforcement of any
Environmental Law; and Target has no reason to believe that any of the above
will be forthcoming. For purposes of this Section 3.29, "Environmental Law"
shall mean any environmental or health and safety-related law, regulation, rule,
ordinance, or by-law at the federal, foreign, state, or local level.
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(c) Target has provided to the Buyer copies of all documents,
records, and information available to Target concerning any environmental or
health and safety matter relevant to Target, whether generated by Target or
others, including, without limitation, environmental audits, environmental risk
assessments, site assessments, documentation regarding off-site disposal of
Hazardous Materials (as defined above), spill control plans, and reports,
correspondence, permits, licenses, approvals, consents, or other authorizations
issued by any environmental agency.
3.30 Backlog. As of the date hereof, Target has a backlog of firm orders
for the sale of products or services of the Business, for which revenues have
not been recognized by Target, as set forth on the List of Schedule.
3.31 Customers, Distributors and Independent Sales Representatives. The
List of Schedule sets forth the names and addresses of all customers to which,
and independent sales representatives and distributors through which, Target has
sold or distributed in excess of $25,000 of its products or services in the
Business during any of the last two fiscal years of Target. The List of Schedule
also indicates all customers, distributors and independent sales representatives
with which Target has entered into a contract or agreement. During such period
and through the date hereof, no such customer, distributor or independent sales
representative has canceled or otherwise terminated its relationship with Target
or decreased materially its usage or purchase of the products or services of
Target, except for changes in customer relationships that have occurred in the
ordinary course of business the aggregate value of which has not exceeded
$10,000. To the knowledge of Target, no such customer, independent sales
representative or distributor has any plan or intention to terminate, cancel or
otherwise modify its relationship with Target in a manner that would be adverse
to Target.
3.32 Disclosure of Material Information and Potentially Adverse
Developments. No disclosure made to Buyer or contained herein, including the
List of Schedule, about Target's business, operations, financial condition,
results of operations or prospects (other than any statements relating solely to
the business, operations, financial condition, results of operations or
prospects of Seller) contains or will contain any untrue statement of a material
fact, or omits or will omit to state a material fact necessary to make the
statements of facts contained therein not misleading or necessary to provide
Buyer with adequate and complete information as to Target's business,
operations, financial condition, results of operations or prospects.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLERS
Each Tiger Inc. and Tiger Ltd. , severally and not jointly, hereby represents
and warrants as to itself to Buyer, as of the date hereof and as of the Closing
Date, as follows:
4.1 Organization. Such Inc. And Ltd. is a corporation duly organized,
validly existing, and in good standing under the laws of the jurisdiction of its
incorporation.
4.2 Authorization and Enforceability. Such Inc. And Ltd. has all
requisite corporate power and authority to execute and deliver this Agreement
and to perform its obligations hereunder. Such Inc and Ltd. execution and
delivery of, and the performance of its obligations under, this Agreement have
been duly and validly authorized by all necessary corporate action. This
Agreement has been duly executed and delivered on behalf of such Inc. And Ltd.
and constitutes the legal, valid, and binding obligations of such company,
enforceable against such company in accordance with its terms subject to general
equitable principles and except as the enforceability of this Agreement may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws of general application relating to creditors' rights.
4.3 No Conflict; No Violation of Laws or Agreements. The execution and
delivery of this Agreement does not, and the consummation of the Transactions
and the compliance with the terms, conditions and provisions of this Agreement
by Stockholder will not: (a) contravene any provision of Stockholder's Charter
or Bylaws, or (b) conflict with, or constitute, or result in any breach,
default, violation of (or an event which might, with or without the passage of
time or the giving of notice or both constitute or result in a breach, default
or violation of) (i) any of the terms, conditions, or provisions of any
indenture, mortgage, loan, credit agreement, or any other instrument, contract,
agreement or commitment to which it is a party, or by which any of its assets
may be bound or affected or (ii) any judgment or order of any Governmental
Authority, or (iii) any law, rule, or regulation.
4.4 Consents. No consent, approval, or authorization of, or registration
or filing with, any Person, including any Governmental Authority, is required in
connection with company's execution and delivery of this Agreement or the
consummation of the Transactions by Companies.
4.5 Brokerage. Neither Company nor anyone acting on Company's behalf has
engaged, retained or incurred any liability to any broker, investment banker,
finder or agent, made any agreement or taken any other action which might cause
anyone to become entitled to a broker's fee or commission or agreed to pay any
brokerage fees, commissions, finder's fees or other fees with respect to or as a
result of the Transactions.
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ARTICLE V
REPRESENTATION AND WARRANTIES OF BUYER
Each of Buyer, jointly and severally, represents and warrants to Target and
Tiger Inc.'s, as of the date hereof and as of the Closing Date, as follows:
5.1 Organization. Buyer is a corporation duly incorporated, validly
existing and in good standing under the laws of the Sweden and has all requisite
corporate power and authority (a) to do business in the jurisdictions wherein
the character of the properties owned or leased or the nature of the activities
by it make such qualification necessary, (b) to execute and deliver this
Agreement, and (c) to perform its obligations hereunder.
5.2 Capitalization and Ownership. The authorized capital stock of Buyer
consists of 100,000 private shares of common stock, $0.000 par value per share,
of which 100,000 shares of common stock are issued and outstanding. All of such
issued and outstanding shares of capital stock of Buyer have been duly
authorized, validly issued, are fully paid and nonassessable, were not issued in
violation of the terms of any agreement or other understanding binding upon
Buyer or any other Person and were issued in compliance with all applicable
federal and state securities or "blue-sky" laws and regulations. Except as set
forth in Schedule 5.1, there are no outstanding securities, options, warrants,
rights, agreements, calls, subscription commitments, demands, or understandings
of any character whatsoever, fixed or contingent, that directly or indirectly
(i) call for the issuance, sale or other disposition of any capital stock of
Buyer or any of its subsidiaries and there are no securities convertible into or
exchangeable for the stock of Buyer or (ii) obligate Buyer to grant, offer or
enter into any of the foregoing or (iii) relate to the voting or control of any
capital stock of Buyer or any of its subsidiaries.
5.3 Subsidiaries. Buyer directly owns all of the outstanding shares of
capital stock of Buyer.
5.4 Authorization and Enforceability. The execution and delivery of the
Transaction Agreements, and the performance of Buyer's and obligations
thereunder, have been duly authorized by all necessary corporate action on the
part of Buyer. This Agreement has been, and upon their execution and delivery by
Buyer and Target each of the other Transaction Agreement to which Buyer and
Target is a party will be, duly executed and delivered by each of Buyer and
Tiger and constitutes and will constitute the legal, valid and binding
obligation of Buyer and Tiger, as the case may be, enforceable against them in
accordance with their respective terms subject to general equitable principles
and except as the enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws of
general application relating to creditors' rights.
5.5 No Conflict; No Violation of Laws or Agreements. The execution and
delivery of this Agreement do not, the execution and delivery of the other
Transaction Agreements will not, and the consummation of the Transactions and
the compliance with the terms, conditions and provisions of the Transaction
Agreement by each of Buyer will not: (a) contravene any provision of Buyer's
Charter or Bylaws, or (b) conflict with, or constitute, or result in any breach,
default, violation of (or an event which might, with or without the passage of
time or the giving of notice or both constitute or result in a breach, default
or violation of) (i) any of the terms, conditions, or provisions of any
indenture, mortgage, loan, credit agreement, or any other instrument, contract,
agreement or commitment to which either of them is a party, or by which any of
their assets may be bound or affected or (ii) any judgment or order of any
Governmental Authority, or any law, rule, or regulation applicable to Buyer or
any of its Affiliates.
15
5.6 Consents. No consent, approval, or authorization of, or registration
or filing with, any Person, including any Governmental Authority, is required in
connection with Buyer's execution and delivery of this Agreement or the
consummation of the transactions contemplated by this Agreement by Buyer.
5.7 Financial Statements.
(a) Attached hereto as Schedule 5.7 is (i) a true and correct copy
of the consolidated balance sheet of Buyer as disclosed to Dun and Bradstreet in
a report dated December 17, 2002 (the "Buyer Financial Statement Date") and the
related consolidated statements of income and cash flows for the fiscal year
then ended (collectively, the "Buyer Year-End Financial Statements"), and (ii)
the unaudited consolidated balance sheet of Target and related statement of
income and cash flows as of, and for the three month period ended March 31, 2002
(the "Buyer Interim Statements" and, together with the Target Year-End Financial
Statements, the "Buyer Financial Statements").
(b) The Buyer Financial Statements: (i) were prepared from and are
consistent with the Books and Records of Buyer, which Books and Records have
been maintained in accordance with all legal and accounting requirements and
completely and accurately reflect all financial transactions of Target, (ii)
were prepared in accordance with GAAP consistently applied; and (iii) are
correct and complete and present fairly the financial condition of Buyer and the
results of its operations for the periods covered by, and as at the dates of,
each of the Buyer Financial Statements except that the Buyer Interim Statements
omit footnote disclosures and do not reflect year end adjustments which will
not, in the aggregate, be material. The income statements included in the Buyer
Financial Statements do not contain any material items of special or
non-recurring income or other income not earned in the ordinary course of
business except as expressly specified therein.
5.8 No Undisclosed Liabilities. Buyer does not have any material
liability or obligation of any nature, whether due or to become due, absolute,
contingent, or otherwise, whether direct or indirect, except to the extent
reflected as a liability on the Buyer Financial Statements, or material
liabilities incurred in the ordinary course of business since the Buyer
Financial Statement Date and fully reflected as liabilities on the appropriate
books of account.
5.9 Litigation and Claims. There are no Claims pending or, to the
knowledge of Buyer, threatened which seek to delay or prevent the consummation
of the Transactions or which would be reasonably likely to adversely affect or
restrict Buyer's ability to perform its obligations under the Transactions
5.10 Brokers. Neither Buyer nor anyone acting on their behalf has
engaged, retained or incurred any liability to any broker, investment banker,
finder or agent, made any agreement or taken any other action which might cause
anyone to become entitled to a broker's fee or commission or agreed to pay any
brokerage fees, commissions, finder's fees or other fees with respect to or as a
result of the Transactions.
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5.11 Truth and Accuracy of Disclosures. No disclosure made to Target
about Buyer's business, operations, financial condition, results of operations
or prospects (other than any statements relating solely to the business,
operations, financial condition, results of operations or prospects of Target)
contains or will contain any untrue statement of a material fact, or omits or
will omit to state a material fact necessary to make the statements of facts
contained therein not misleading or necessary to provide Target with adequate
and complete information as to Buyer's business, operations, financial
condition, results of operations or prospects.
ARTICLE VI
PRE-CLOSING COVENANTS OF TARGET.
6.1 Conduct of Business. Between the date of this Agreement and the
Closing Date, Target will, and Seller will cause Target to:
(a) conduct the Business only in the ordinary course and refrain
from changing or introducing any method of management or operations except in
the ordinary course of business and consistent with prior practices;
(b) refrain from (i) making any purchase, sale or disposition of
any asset or property included in or to be included in the Acquiring Assets
other than in the ordinary course of business, (ii) purchasing any capital asset
for use in the Business costing more than $10,000, (iii) mortgaging, pledging,
subjecting to a lien or otherwise encumbering any of such assets other than in
the ordinary course of business, and (iv) including any liabilities other than
in the ordinary course of business consistent with past practices;
(c) refrain from making any change or incurring any obligation to
make a change in its Charter, Bylaws or authorized or issued capital stock;
(d) refrain from declaring, setting aside or paying any dividend,
making any other distribution in respect of its capital stock or making any
direct or indirect redemption, purchase or other acquisition of its stock;
(e) refrain from making any change in the compensation payable or
to become payable to any of its officers, employees, agents or independent
contractors;
(f) refrain from prepaying any loans from its stockholders,
officers or directors (if any) or making any change in its borrowing
arrangements;
(g) use its best efforts to prevent any change with respect to its
management and supervisory personnel who are employed in the Business;
17
(h) use its best efforts to keep available its present officers
and employees employed in the Business and to preserve the goodwill of all
suppliers, customers, distributors, independent contractors and others having
business relations with the Business; and
(i) furnish Buyer with unaudited monthly balance sheets and
statements of income of Target within ten (10) days after each month end for
each month ending more than ten (10) days before the Closing, certified by the
Chief Financial Officer of Target, which financial statements shall be prepared
in accordance with GAAP applied consistently during the periods covered thereby,
shall be complete and correct and present fairly the financial condition of
Target as of the dates of such statements and the results of its operations for
the periods covered thereby.
6.2 Authorization from Others. Prior to the Closing Date, Target and
Seller will obtain all authorizations, consents and permits of others required
to permit the consummation by Target and Seller of the Transactions.
6.3 Breach of Representations and Warranties. Neither any Tiger, Inc.
shall take any action that would result in any of the representations and
warranties contained in Articles 3 and 4 hereof being untrue in any material
respect. Promptly upon the occurrence of, or promptly upon Target or Tiger, Inc.
becoming aware of the impending or threatened occurrence of, any event that
would cause or constitute a breach or default, or would have caused or
constituted a breach or default had such event occurred or been known to Target
or Tiger, Inc. prior to the date hereof, of any of the representations and
warranties of the Target or Tiger, Inc. contained in this Agreement, Target and
Seller shall give detailed written notice thereof to Buyer and shall use their
respective best efforts to prevent or promptly cure the same.
6.4 Consummation of Agreement. Target and Seller shall use their
respective best efforts to perform and fulfill all conditions and obligations on
their parts to be performed and fulfilled under this Agreement.
6.5 Confidentiality. Target and Seller agree that (a) Target and Seller
and their respective officers, directors, agents and representatives will hold
in strict confidence, and will not use, any data and information obtained in
connection with this transaction or Agreement with respect to the business of
Buyer, except for the purpose of Target's and Seller's internal evaluation of
the Transactions; (b) if such Transactions are not consummated, Target and
Seller will return to Buyer all copies of such data and information, including
but not limited to worksheets, test reports, manuals, lists, memoranda, and
other documents prepared by or made available to Target and Seller in connection
with this transaction; and (c) they will treat the existence of this Agreement
and the transactions contemplated hereby as strictly confidential and will not
disclose them to any Person without the prior written consent of Buyer.
6.6 No Solicitation of Other Offers. Neither Target, Seller, nor any of
their respective officers, directors, agents or representatives will, directly
or indirectly, (i) solicit, initiate discussions or engage in negotiations with,
any person, other than Buyer, relating to the possible acquisition of Target or
any of the Acquired Assets (except in the ordinary course of business of
Target); (ii) provide, or cause any other person to provide, any information to
any person, other than Buyer, relating to the possible acquisition of Target or
any of the Acquired Assets (except in the ordinary course of business of
Target); or (iii) enter into a transaction with any Person, other than Buyer,
concerning the possible acquisition of Target or any of the Acquired Assets
(except in the ordinary course of business of Target). Target and Seller will
notify Buyer immediately if any Person makes any proposal, offer, inquiry or
contact with respect to any of the foregoing.
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6.7 Access, Information, and Documents. Buyer and Buyer's counsel,
accountant, and other representatives will have full access during normal
business hours to all of Target's properties, books, tax returns, contracts,
commitments, records, officers, personnel, and accountants. Target shall provide
Buyer with all such documents and copies of documents (certified to be true
copies if requested) and all information with respect to the affairs of the
Target Companies as Buyer may reasonably request.
ARTICLE VII
PRE-CLOSING COVENANTS OF BUYER
7.1 Consummation of Agreement. Buyer shall use best efforts to perform
and fulfill all conditions and obligations on its part to be performed and
fulfilled under this Agreement.
7.2 Confidentiality. Buyer agree that, unless and until the Closing has
been consummated, (a)Buyer and officers, directors, agents and representatives
will hold in strict confidence, and will not use, any data and information
obtained in connection with this transaction or Agreement with respect to the
business of Target, except for the purpose of Buyer's internal evaluation of
this transaction or the consummation of the Transactions; and (b) if the
Transactions are not consummated, Buyer will return to Target all copies of such
data and information, including but not limited to worksheets, test reports,
manuals, lists, memoranda, and other documents prepared by or made available to
Buyer in connection with this transaction.
7.3 Authorization from Others. Prior to the Closing Date, Buyer will
obtain all authorizations, consents and set forth on Schedule 7.3.
7.4 Breach of Representations and Warranties. Buyer shall not take any
action that would result in any of the representations and warranties contained
in Article 5 hereof being untrue in any material respect. Promptly upon the
occurrence of, or promptly upon Buyer becoming aware of the impending or
threatened occurrence of, any event that would cause or constitute a breach or
default, or would have caused or constituted a breach or default had such event
occurred or been known to Buyer prior to the date hereof, of any of the
representations and warranties of Buyer contained in or referred to in this
Agreement, Buyer shall give detailed written notice thereof to Target shall use
their best efforts to prevent or promptly cure the same.
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ARTICLE VIII
CONDITIONS TO CLOSING
8.1 Conditions Precedent to Obligations of Buyer. The obligations of
Buyer to proceed with the Closing under this Agreement are subject to the
fulfillment prior to or at Closing of the following conditions (any one or more
of which may be waived in whole or in part by Buyer in Buyer's sole discretion):
(a) Representations, Warranties and Covenants. The representations
and warranties of Target and seller set forth in Articles 3 and 4 that are not
qualified as to materiality shall be true and correct in all material respects,
and such the representations and warranties that are qualified as to materiality
shall be true and correct in all respects, at and as of the Closing Date. Target
and seller shall have performed and complied with all of their covenants
hereunder in all material respects through the Closing.
(b) Litigation. No order of any Governmental Authority shall be in
effect which restrains or prohibits the Transactions shall not be threatened,
nor shall there be pending, any action or proceeding (i) challenging any of the
Transactions or seeking monetary relief by reason of the consummation of such
transactions, or (ii) which would likely have a Material Adverse Effect.
(c) Consents. Target and Buyer shall have procured all of the
third party consents, approvals and authorizations set forth on Schedule 7.4.
(d) Closing Certificate. Target shall have delivered to Buyer a
certificate to the effect that each of the conditions specified above in
Subsections 7.1(a), (b) and (c) is satisfied in all respects;
(e) Satisfactory Instruments. All instruments and documents
required of Target to effectuate and consummate the Transactions shall be in
form and substance reasonably satisfactory to Buyer and its counsel.
(f) Related Agreements. Buyer and seller shall have entered into
the Related Royalty Agreement, which shall be in. substantially the form
attached hereto as Exhibit B-1.
(g) Target shall have delivered to Buyer versions of all Schedules
to this Agreement showing changes thereto through the Closing Date all of which
changes shall be in compliance with and shall not constitute a breach of the
terms and conditions of this Agreement.
8.2 Conditions Precedent to the Obligations of Target. The obligation of
Target and seller to proceed with the Closing is subject to the fulfillment
prior to or at Closing of the following conditions (any one or more of which may
be waived in whole or in part by Target in its sole discretion):
20
(a) Material Adverse Effect. All representations and warranties of
Buyer contained herein shall be true, accurate, complete and correct in all
material respects as of the Closing Date.
(b) Litigation. No order of any Governmental Authority shall be in
effect which restrains or prohibits the Transactions. There shall not be
threatened, nor shall there be pending, any action or proceeding (i) challenging
any of the Transactions or seeking monetary relief by reason of the consummation
of such transactions, or (ii) which would likely have a Material Adverse Effect.
(c) Satisfactory Instruments. All instruments and documents
required of Buyer to effectuate and consummate the Transactions contemplated
hereby shall be in form and substance reasonably satisfactory to Target and the
seller and their counsel.
ARTICLE IX
TERMINATION
9.1 Termination of Agreement. This Agreement and the transactions
contemplated hereby may be terminated at any time on or prior to the Closing
Date:
(a) Mutual Consent. By mutual written consent of Buyer and Target
and the Seller;
(b) Termination by Buyer. By Buyer upon notice to Target if there
has been a material misrepresentation, inaccuracy or breach by Target or Seller
of any of their representations, warranties or covenants, or if any of the
conditions specified in Section 8.1 hereof shall not have been substantially
fulfilled by the time required and not have been waived by Buyer, or if the
Closing shall not have occurred on or before December 31, 2002; or
(c) Termination by Target. By Target upon notice to Buyer if there
has been a material misrepresentation, inaccuracy or breach by Buyer of any of
its representations, warranties or covenants, or if any of the conditions
specified in Section 8.2 hereof shall not have been substantially fulfilled by
the time required and not have been waived by Target, or if the Closing shall
not have occurred on or before December 31, 2002.
9.2 Effect of Termination. In the event of termination of this Agreement
by either Target or Buyer, as provided above, this Agreement shall terminate as
of the date of the written notice or consent described in Section 7.1 above, and
there will be no liability on the part of Target or Buyer or their respective
Affiliates, except for liabilities arising from a breach of this Agreement prior
to such termination.
21
ARTICLE X
CERTAIN ADDITIONAL COVENANTS
10.1 Costs, Expenses, and Transfer Taxes. Each party hereto will pay its
own costs and expenses, including legal and accounting fees, in connection with
the negotiation, execution, performance of and compliance with this Agreement.
10.2 Employee Matters. Immediately prior to the consummation of the
transactions contemplated hereby, Target will terminate all of its employees,
and Buyer will offer employment to all former employees of Target listed on
Schedule 5 at the same place of employment and on terms no less favorable than
the terms of employment that existed at Target.
ARTICLE XI
INDEMNIFICATION
11.1 Materiality; Survival. All representations, warranties, agreements,
covenants and obligations herein or in any schedule, certificate or financial
statement delivered by any party incident to the Transactions are material,
shall be deemed to have been relied upon by the parties and shall survive the
Closing hereof for a period of two (2) years and shall not merge in the
performance of any obligation by any party hereto; provided, however, that all
such matters relating to Product Liability, Environmental Laws or Taxes shall
survive the Closing for the period of the statute of limitations applicable to
such matters.
11.2 Indemnification Rights of Buyer.
(a) Seller and jointly and severally agrees to defend, indemnify
and hold Buyer and their respective subsidiaries and affiliates and the persons
serving as officers, directors, partners, employees or agents thereof
(hereinafter collectively referred to as "Buyer Indemnified Parties" or
individually as a "Buyer Indemnified Party") harmless from and against any
damages, liabilities, losses, fines, penalties, clean-up costs, study costs and
expenses (including, without limitation, reasonable counsel fees and expenses as
the same are incurred) (collectively, "Losses") of any kind or nature whatsoever
that may be sustained or suffered by any of them arising out of or based upon or
in connection with any of the following matters (notwithstanding any
investigation by or knowledge of any of the Buyer Indemnified Parties):
(i) a breach of any representation, warranty, agreement,
covenant or obligation made by the Seller (but not any other Stockholder) in
this Agreement or in any exhibit, schedule, certificate or financial statement
delivered hereunder or in connection herewith or by reason of any claim, action
or proceeding asserted or instituted or growing out of any matter or thing that
constitutes or is alleged by a third party to constitute a breach of such
representations, warranties or covenants; and
22
(ii) any claims of third parties arising out of or relating
the Retained Liabilities.
Seller shall have no obligation to indemnify any Buyer Indemnified Party from
and against any Losses as to which a claim for indemnification is not made on or
before the second anniversary of the Closing Date, except with respect to
Product Liability, Environmental Laws or Taxes, as to which any Buyer
Indemnified Party can make a claim on or before the date on which the statute of
limitations period applicable to such matters expires.
No claims for Losses shall be brought hereunder by Buyer until the aggregate
amount of such claims exceeds $50,000, and, if the aggregate amount of Losses
claimed hereunder exceeds $50,000 and Buyer are entitled to indemnification
pursuant hereto, Buyer shall be entitled to collect any Losses in excess of such
$50,000.
(b) The Buyer Indemnified Parties shall give prompt written notice
to Target and Seller from which indemnification is sought of any claim,
liability or expense to which the indemnification obligations hereunder would
apply. Such notice shall state the information then available regarding the
amount of such claim, liability or expense and shall specify the provision or
provisions of this Agreement under which the claim, liability or expense is
asserted. The failure to promptly notify the Seller as provided above shall not
relieve the Seller of any liability hereunder except to the extent that the
rights of the Seller have been materially and adversely prejudiced as a result
of the failure to give, or the delay in giving, such notice.
(c) If such indemnification claim, liability or expense is the
subject of litigation, the Seller shall have the right to participate at their
own expense in the defense of any such litigation. The Buyer Indemnified Parties
may, in their sole discretion, authorize the Seller , if they so desire, to take
over the defense of such litigation so long as such defense is expeditious and
is undertaken by counsel acceptable to the Buyer Indemnified Parties; provided,
however, that the Seller shall not enter into any settlement that has binding
effect on the Buyer without the prior written consent of the Buyer, which
consent shall not be unreasonably withheld. In addition, the Buyer Indemnified
Party may not enter into any settlement in which an indemnifying party will be
liable hereunder without the consent of such indemnifying party.
11.3 Indemnification Rights of Seller.
(a) Buyer agree to defend, indemnify and hold Seller and their
respective subsidiaries and affiliates and the persons serving as officers,
directors, partners, employees or agents thereof (hereinafter collectively
referred to as "Seller Indemnified Parties" or individually as a "Seller
Indemnified Party") harmless from and against any Losses of any kind or nature
whatsoever that may be sustained or suffered by any of them arising out of or
based upon or in connection with any of the following matters:
(i) a breach of any representation, warranty, agreement,
covenant or obligation made by Buyer in this Agreement or in any exhibit,
schedule or certificate delivered hereunder or in connection herewith or by
reason of any claim, action or proceeding asserted or instituted growing out of
any matter or thing that constitutes or is alleged by a third party to
constitute a breach of such representations, warranties or covenants; and
23
(ii) any claims of third parties arising out of or relating
to the ownership or operation of the shares of Tiger Telematics, Ltd.Acquired
Assets or the Business by Buyer after the Closing Date, whether accrued,
absolute, contingent or otherwise, including the Assumed Liabilities, but not
including the Retained Liabilities.
Buyer shall have no obligation to indemnify any Seller Indemnified Party from
and against any Losses as to which a claim for indemnification is not made on or
before the third anniversary of the Closing Date. In no event shall the
indemnification obligations of the Buyer to all Seller Indemnified parties
exceed $5,000,000.
(b) The Seller Indemnified Parties shall give prompt written
notice to Buyer of any claim, liability or expense to which the indemnification
obligations hereunder would apply. Such notice shall state the information then
available regarding the amount of such claim, liability or expense and shall
specify the provision or provisions of this Agreement under which the claim,
liability or expense is asserted. The failure to promptly notify Buyer as
provided above shall not relieve Buyer of any liability hereunder except to the
extent that the rights of Buyer have been materially and adversely prejudiced as
a result of the failure to give, or the delay in giving, such notice.
(c) If such indemnification claim, liability or expense is the
subject of litigation, Buyer shall have the right to participate at their own
expense in the defense of any such litigation. The Seller Indemnified Parties
may, in their sole discretion, authorize Buyer if they so desire to take over
the defense of such litigation so long as such defense is expeditious and is
undertaken by counsel acceptable to the Seller Indemnified Parties; provided,
however, that Buyer shall not enter into any settlement which has binding effect
on Seller without the prior written consent of Seller, which shall not be
unreasonably withheld.
11.4 Indemnification Payments and Dispute Resolution. Any indemnification
amounts due under Section 11.2 or 11.3 shall be paid within 30 days after notice
thereof is given by the party seeking indemnification unless within said 30-day
period the party providing indemnification indicates in a writing delivered to
the party seeking indemnification that it disputes the nature or amount of the
claim for indemnification in which event the dispute, upon the election of any
party hereto after said 30-day period, shall be referred to the American
Arbitration Association to be settled by arbitration in Florida in accordance
with the UNCITRAL rules of commercial arbitration. The fees and expenses of the
arbitrator shall be borne by that party (with Seller and Buyer together each
being considered one party) whose last offer of settlement differed by a greater
amount from the arbitrator's award than did the last offer of settlement of the
other party; provided, however, that no offer of settlement shall be disclosed
to the arbitrator until after the arbitrator renders an award on the merits. The
determination of the arbitrator as to the amount, if any, of the indemnification
claim, liability or expense that is properly allowable shall be conclusive and
binding upon the parties hereto and payment shall be made as so determined
within five business days of the date of such award. The judgment upon the award
may be entered in any court having jurisdiction thereof. There shall be added to
the amount of any arbitration award interest at the rate of 10% per annum,
accrued daily, on the amount required to be paid pursuant to such award. This
interest will be computed from the date payment would have been paid if not
disputed to the date paid and the arbitrator shall include provisions therefore
in any award rendered.
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ARTICLE XII
MISCELLANEOUS
12.1 Notices. All notices, requests, demands, and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered by courier, or if mailed, when mailed by United States
first-class, certified or registered mail, postage prepaid, to the other party
at the following addresses or by telecopy, receipt confirmed (or at such other
address as shall be given in writing by any party to the other):
If to Buyer, to:
Norrtulls Mobilextra Aktiebolag
Xxxxxxxxxxxxx 00 X
000 00 Xxxxxxxxx
_____________________
Fax: 00000000000
Attention: Xxxxxxxxx Xxxxxxx , Managing Director
If to Seller, to:
Xxxxxxx Xxxxxxxxx
CEO
Tiger Telematics, Inc.
0000 Xxxxxxx Xx. Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Fax: 000-000-0000
With a copy to:
Lawyer: XxXxxxx Xxxx, a Professional Corporation
000 Xxxx Xxxx Xxxxxx - 00xx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attention: X. Xxxxxxxx English
12.2 Successors and Assigns. This Agreement, and all rights and powers
granted hereby, will bind and inure to the benefit of the parties hereto and
their respective successors and assigns, but neither this Agreement nor any of
the rights, interests, or obligations hereunder shall be assigned by any of the
parties hereto without the prior written consent of the other parties hereto.
12.3 Construction. The parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties and no presumption or burden of proof shall
arise favoring or disfavoring any party by virtue of the authorship of any of
the provisions of this Agreement. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. The
word "including" shall mean including without limitation. The parties intend
that each representation, warranty, and covenant contained herein shall have
independent significance. If any party has breached any representation,
25
warranty, or covenant contained herein in any respect, the fact that there
exists another representation, warranty, or covenant relating to the same
subject matter (regardless of the relative levels of specificity) which the
party has not breached shall not detract from or mitigate the fact that the
party is in breach of the first representation, warranty, or covenant. All
pronouns and any variations thereof refer to the masculine, feminine or neuter,
singular or plural, as the identity of the Person or Persons may require. All
references herein to Articles, Sections (other than Sections of the Code or any
other statute) and subsections shall be deemed to be references to Articles,
Sections and subsections of this Agreement unless the context shall otherwise
require.
12.4 Governing Law. With respect to corporate governance matters
concerning a corporation of any jurisdiction, this Agreement shall be governed
by and construed in accordance with the laws of such jurisdiction. With respect
to all other matters, this Agreement shall be governed by and construed in
accordance with the laws of State of Florida, without regard to the conflicts of
law provisions thereof.
12.5 Headings. The headings preceding the text of the sections and
subsections hereof are inserted solely for convenience of reference and shall
not constitute a part of this Agreement, nor shall they affect its meaning,
construction, or effect.
12.6 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but which together
shall constitute one and the same instrument.
12.7 Further Assurances. Both before and after Closing hereunder, each
party shall cooperate and take such action as may be reasonably requested by
another party in order to more fully carry out the provisions and purposes of
this Agreement and the transactions contemplated hereby.
12.8 Course of Dealing. No course of dealing and no delay on the part of
any party hereto in exercising any right, power, or remedy conferred by this
Agreement shall operate as a waiver thereof or otherwise prejudice such party's
rights, powers and remedies. The failure of any of the parties to this Agreement
to require the performance of a term or obligation under this Agreement or the
waiver by any of the parties to this Agreement of any breach hereunder shall not
prevent subsequent enforcement of such term or obligation or be deemed a waiver
of an subsequent breach hereunder. No single or partial exercise of any rights,
powers or remedies conferred by this Agreement shall preclude any other or
further exercise thereof or the exercise of any other right, power or remedy.
12.9 Severability. This Agreement shall be deemed severable, and the
invalidity or unenforceability of any term or provision hereof shall not affect
the validity or enforceability of this Agreement or of any other term or
provision hereof. Furthermore, in lieu of any such invalid or unenforceable term
or provision, the parties hereto intend that there shall be added as a part of
this Agreement a provision as similar in terms to such invalid or unenforceable
provision as may be valid and enforceable, so as to effect the original intent
of the parties to the greatest extent possible.
26
12.10 Entire Agreement. This Agreement and the Schedules, Exhibits and
Certificates hereto, each of which is hereby incorporated herein, set forth all
of the promises, covenants, agreements, conditions, and undertakings between the
parties hereto with respect to the subject matter hereof and supersede all prior
and contemporaneous agreements and understandings, inducements, or conditions,
express or implied, oral or written. This Agreement may not be amended except by
an instrument in writing signed by the party sought to be charged with effect of
such amendment.
27
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and
year first above written.
TIGER TELEMATICS, INC.
By:___________________________________
Name: Xxxxxxx X. Xxxxxxxxx
Title: CEO
Norrtulls Mobilextra Aktiebolag
By:___________________________________
Name: Xxxxxxxxx Xxxxxxx
Title: Managing Director
TIGER TELEMATICS, LTD.
By:___________________________________
Name:
Title: Managing Director
28
Exhibit A
DEFINITIONS
"Affiliate" means, when used with respect to any Person, (a) if such Person is a
corporation, any officer or director thereof and any Person which is, directly
or indirectly, beneficial owner (by itself or as part of any group) of more than
fifty percent (50%) of any class of any voting security thereof, (b) if such
Person is an LLC, any officer or manager thereof and any Person which is,
directly or indirectly, beneficial owner (by itself or as part of any group) of
more than fifty percent (50%) of any class of any voting interest therein, (c)
if such Person is a partnership, any general partner thereof and any Person
which is, directly or indirectly, beneficial owner (by itself or as part of any
group) of more than fifty percent (50%) of any limited partnership interest
thereof, and (d) any other Person which directly or indirectly, through one or
more intermediaries controls, is controlled by, or is under common control with,
such Person. For purposes of this definition: (i) any "beneficial owner" that is
a partnership shall be deemed to include any general or limited partner thereof,
any "beneficial owner" that is an LLC shall be deemed to include any Person
controlling, controlled by or under common control with such beneficial owner,
or any officer, manager or member of such beneficial owner or of any LLC
occupying any such control relationship, and any "beneficial owner" that is a
corporation shall be deemed to include any Person controlling, controlled by or
under common control with such beneficial owner, or any officer or director of
such beneficial owner or of any corporation occupying any such control
relationship; and (ii) "control" (including the correlative terms "controlling,"
"controlled by" and "under common control with"), with respect to any Person,
shall mean possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such Person, whether through the
ownership of voting securities or by contract or otherwise.
"Books and Records" includes the original and all copies of reports, books,
manuals, financial statements, or reports, price books, confirmations,
telegrams, receipts, inventory books, contracts, printed matters, computer
printouts, teletypes, invoices, transcripts, analyses, Returns, minutes,
accounts, estimates, projections, comparisons, press releases, reviews,
opinions, studies and investigations, graphic representations of any kind
(including photographs, charts, graphs, videotape and motion pictures,
electronic and mechanical records, tapes, cassettes, discs, and recordings,
whether preserved in writing, phone record, film, tape, videotape, or computer
record).
"Authorization" means all federal, foreign, state, provincial, municipal, local
or other governmental consents, certifications, licenses, permits,
registrations, grants and other authorizations that are necessary to permit
Target to conduct the Business as present conducted or proposed to be conducted.
"Bylaws" means the bylaws of any corporation organized under the laws of any
State of the United States of America and any equivalent document of any
corporation or entity organized under the laws of another jurisdiction, as
amended or restated through the date hereof or the Closing Date, as the case may
be.
29
"Charter" means the Certificate of Incorporation or Formation, Articles of
Incorporation or Organization or other organizational document of a corporation
or an LLC organized under the laws of any State of the United States of America
and any equivalent document of a corporation, LLC or other similar entity
organized under the laws of another jurisdiction, as amended or restated through
the date hereof or the Closing Date, as the case may be.
"Code" means the Internal Revenue Code of 1986 and valid interpretations
thereof, as reflected in Treasury regulations, published IRS rulings and court
decisions.
"GAAP" means United States generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession, which are applicable to the circumstances as of the
date of determination, consistently applied.
"Governmental Authority" means all agencies, instrumentalities, departments,
commissions, courts, tribunals, or boards of any government, whether foreign,
federal, state, or local.
"Knowledge" all references to "knowledge" herein shall mean actual knowledge
after reasonable investigation. Knowledge of any entity shall be deemed to
include the knowledge of its directors and officers.
"Lien" means, with respect to any asset or right, any mortgage, deed of trust,
pledge, hypothecation, assignment, security interest, lien, charge, restriction,
adverse claim or right whatsoever, title defect or encumbrance of any kind
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any assignment or other conveyance of any right to receive
income and any assignment of receivables with recourse against assignor), any
filing of any financing statement as debtor under the Uniform Commercial Code or
comparable law of any jurisdiction and any agreement to give or make any of the
foregoing except with respect to securities, restrictions on transferability
imposed by federal and state securities laws.
"Material Adverse Effect" means an occurrence or event which has or is
reasonably likely to have a material adverse impact or effect on the Business,
or the operations, financial conditions or prospects of the applicable
companies, taken as a whole.
"Person" means any natural person, corporation, business trust, trust, estate,
partnership, limited partnership, LLC, limited liability partnership,
association, joint venture, or other entity.
30
"Taxes" or "Tax" means all taxes, however, denominated, including any interest,
penalties or other additions to tax that may become payable in respect thereof,
imposed by any federal, territorial, state, local or foreign government or any
agency or political subdivision of any such government, which taxes shall
include, without limiting the generality of the foregoing, all income or profits
taxes (including federal income taxes and state income taxes), real property
gains taxes, payroll and employee withholding taxes, unemployment insurance
taxes, social security taxes, sales and use taxes, ad valorem taxes, excise
taxes, franchise taxes, occupation taxes, real and personal property taxes,
stamp taxes, environmental taxes, transfer taxes and other governmental charges,
and other obligations of the same or of a similar nature to any of the
foregoing, which any Target Company is required to pay, withhold or collect.
31
List of schedules
Description
1 Acquired assets
2 Excluded assets
3 Assumed liabilities
4 Excluded Liabilities
5 Retained employees
6 Disclosure Schedule
7 Target Financial statements
8 Target undisclosed liabilities
9 Target contracts
10 Target Agreements
11 Target Intellectual Property
12 Target Leases
13 Target Customers
14 Buyer D and B Report and Financials
32
THIS AGREEMENT IS DATED THIS DAY OF DECEMBER 2002
====================================
ROYALTY AGREEMENT
BETWEEN
TIGER TELEMATICS, INC.
AND
NORTULLS MOBILEXTRA AKTIEBOLAG
and Eagle Eye Scandinavian Ltd (collectively referred to as the "Purchasers")
33
Whereas: the Purchasers have acquired the entire issued share capital of Tiger
Telematics Ltd. from Tiger Telematics, Inc. in a Share
Purchase Agreement executed contemporaneously with this
Agreement.
Whereas: Pursuant to the terms of the Share Purchase Agreement the Purchasers
acquired an order book for the supply of tracking product
from Scandinavian Countries
Whereas: the Purchasers are desirous of executing the order book in Scadinavia.
It is hereby agreed as follows:-
1.0 Royalties
1.1 The Purchasers shall pay a royalty to Tiger Inc. equal to 20% of the
Net Profit. Net Profit shall be defined as cost of sale price minus
cost of product sold and minus installation cost and the reasonable
selling costs associated with the sale of the product but excluding all
fixed overhead costs such as staff costs and premises. For the
avoidance of doubt the Sale price shall include any revenue derived
from telecom subsidies or an y revenue that should reasonably be
derived according to normal trade practices. This Agreement shall
subsist for a period of 10 years (TEN) or until 75% of the acquired
order book has been shipped whichever is the sooner.
2.0 Royalty Payment
2.1 The Purchaser shall make payment of the royalties in sterling or any
other currency stipulated from time to time by the Tiger Telematics,
Inc.) by telegraphic transfer to the Tiger Telematics, Inc. at such
place as may be nominated from time to time by Tiger Telematics, Inc.
in respect of each Contract Year, as the case may be, within thirty
(30) days after the end of that Contract Year after deducting any
amount that the Purchaser has paid to reduce the liabilities acquired
in the Share Purchase Agreement and that may be required to deduct on
account of any taxation liability of the Tiger Telematics, Inc. in the
Territory. The Purchaser shall obtain an official receipt for any
amount so paid and forward this immediately to the Tiger Telematics,
Inc. together with a written explanation providing justification for
the deduction.
2.2 The Purchaser shall convert the royalties payable at the bank
telegraphic transfer selling rate prevailing for the currency so
stipulated on the last working day of each year.
34
2.3 The Purchaser shall provide with each royalty remittance a statement as
to the calculation of the royalty certified as correct by a senior
executive of the Purchaser and approved by the Tiger Telematics, Inc..
The Purchaser shall also provide to the Tiger Telematics, Inc. by 31
March in each Contract Year a calculation of the royalty paid for the
previous Contract Year certified as correct by its auditors or any
agent or accountant authorised by the Tiger
3.0 Targets
3.1 The Purchaser undertakes that the Net Sales of Products by the
Purchaser shall in each calendar year be at least 10% of the remaining
and unexecuted order book.
4.0 Marketing of the Products
4.1 The Purchaser shall use its best endeavours to create, meet and expand
demand in the Territory for the Products.
4.2 On an annual basis during the term of this Agreement the Purchaser will
provide to the Tiger Telematics Inc. a marketing plan for sale and
distribution of the Products within the Territory which marketing plan
is to be approved by Tiger Telematics, Inc. (such approval not to be
unreasonably withheld). The marketing plan for each Contract Year of
this Agreement other than the first Contract Year is to be agreed upon
three (3) months prior to each Anniversary Date. The marketing plan
will specify objectives and strategies with respect to the following
and any related matters which are consistent with the Norrtulls,Eagle
Eye's obligations under the terms of this Agreement:-
(a) distribution channels;
(b) sales and distribution targets on the product;
(c) accumulation of market data including assessment of total
market size and segmentation in units and value;
(d) overview of trading for the current year and objectives and
strategies for the following year;
(e) assessment of competition;
(f) advertising and promotional expenses; and
(g) overall advertising and promotional strategy.
4.3 The Purchaser shall:
35
(h) develop a coherent sales and marketing strategy for the
Product in the Territory;
(i) achieve distribution throughout all users in Scandinavia
4.4 The Purchaser shall use its best endeavours to ensure that the Products
are distributed only through reputable dealers.
4.5 If requested, the Purchaser shall participate twice a year in Tiger
Telematics, Inc.'s international meetings at the Purchasers expense.
5.0 Books and Records
5.1 The Purchaser shall keep full and correct records and accounts showing
details of the Products manufactured, imported, distributed, bartered
and sold by it pursuant to this Agreement and otherwise containing such
information as may be necessary to enable the Tiger Telematics, Inc. to
monitor compliance with this Agreement.
5.2 The Purchaser shall throughout the continuance of this Agreement give
access to its records and accounts at all reasonable times (and in any
event within 48 hours of request) to the Tiger Telematics, Inc. or any
agent or accountant authorised by Tiger Telematics, Inc.. Such person
may take extracts from or copies of any such records or accounts.
5.3 In the event that this Agreement is terminated for any reason the
Purchaser shall provide the same access to its records and accounts for
a period of one year thereafter.
5.4 Throughout this Agreement the Purchaser agrees to provide to Tiger
Telematics, Inc. not later than one (1) calendar month after its
preparation a copy of the Purchasers most recent year-end financial
accounts (including balance sheet and profit and loss accounts)
certified by an independent chartered accountant (or the equivalent in
the Territory).
6.0 Report and Remittance Forms
6.1 Within ten (10) days of the end of each month the Purchaser shall
provide to Tiger Telematics, Inc. a report showing:-
(a) details of all sales of each of the Products made during that
month to include the quantities of each type of the Products
sold, the names of all customers, the quantities purchased by
each customer and the prices payable;
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(b) estimates of anticipated sales of each of the Products for
such period as Tiger Telematics, Inc. may request.
6.2 Within thirty (30) days of the end of each year the Purchaser shall
provide to Tiger Telematics, Inc. a report showing:-
(c) details of all sales of each of the Products made during that
year to include the quantities of each type of the Products
sold, the names of all customers, the quantities purchased by
each customer and the prices payable;
(d) the quantities of each of the Products held in stock by or to
the order of the Purchaser at the beginning and end of that
Quarter.
6.3 If so requested by the Tiger Telematics, Inc., any report provided
under clauses 6 shall be provided on forms furnished by Tiger
Telematics, Inc. and shall be certified as correct by a senior
executive of the Purchaser approved by Tiger Telematics, Inc..
6.4 The rendering of any report or the payment of any royalty shall not
prejudice any right of Tiger Telematics, Inc. to recover any additional
amount that may be found to be due in respect of royalties or otherwise
and no such right shall be deemed to have been waived by the lapse of
time or any act or omission on the part of Tiger Telematics, Inc..
7.0 Confidential Information
7.1 All Confidential Information shall be used by the Purchaser only for
the performance of this Agreement and shall be kept confidential by the
Purchaser and shall be revealed to directors, officers, employees,
servants and agents of the Purchaser only to the extent necessary to
enable the Purchaser to fulfil its obligations and responsibilities
pursuant to this Agreement. The Purchaser shall impose upon all such
directors, officers, employees, servants and agents to whom any
Confidential Information is revealed obligations of confidentiality and
restrictions on use in respect thereof identical to those herein
contained and shall be responsible for any breach of any of such
obligations by any of such directors, officers, employees, servants or
agents. This provision shall not apply to any Confidential Information
which is in the public domain or to the extent to which it may be
required to be disclosed by law or which is obtained by the Purchaser
in good faith from a third party with the right to disclose it.
7.2 Tiger Telematics, Inc. makes no warranty as to the accuracy,
sufficiency and suitability for use by the Purchaser of advice,
information, technical assistance or know-how provided by Tiger
Telematics, Inc. for use by the Purchaser in the manufacture or
marketing of any Products and assumes no responsibility or liability,
including but not limited to liability for direct, indirect or
consequential damages of any nature which arise out of or in connection
with the Purchaser's use thereof, but nothing shall exclude liability
for fraudulent misrepresentation.
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Unless specifically authorised in writing so to do by Tiger Telematics,
Inc., the Purchaser shall not, directly or indirectly, by itself or
through its directors, officers employees, agents or any person in
which the Purchaser holds any issued share capital or controls whether
directly or indirectly the composition of its board of directors or any
of its voting power, manufacture, sell or distribute any products in
the Territory or procure the manufacture, sale or distribution of any
products for sale in the Territory which are similar to or in
competition with the Products.
8.0 Termination
8.1 Tiger Telematics, Inc. may (without prejudice to any other rights of
termination available to it) terminate this Agreement forthwith by
giving notice of termination to the Purchaser upon any of the following
events:-
(a) if any sum payable to Tiger Telematics, Inc. or to any
authorised supplier of any Distributed Products hereunder is
not paid by the due date for payment;
(b) if the Purchaser commits any other breach of any of its
obligations hereunder and fails to remedy the same (if capable
of remedy) within thirty (30) days of the date of service by
Tiger Telematics, Inc. of a notice specifying the breach in
question and requiring it to be remedied;
(c) if the Purchaser is unable to pay its debts as they fall due
or suspends payment of any of its debts or enters into any
arrangement with creditors for the payment of any of its
debts;
(d) if an administrator, administrative or other receiver, manager
or liquidator is appointed in respect of the Purchaser or any
of its assets or any application is made for the appointment
of such officer;
(e) if a winding up resolution is passed or a winding up order is
made in respect of the Purchaser or the Purchaser goes into
liquidation;
8.2 Without prejudice to the rights, powers and remedies of Tiger
Telematics, Inc. otherwise under this Agreement the Purchaser shall pay
to Tiger Telematics, Inc.:
(f) interest at a rate three per cent (3%) per annum above the
National Westminster Bank plc's base lending rate for the time
being in force on any monies due but unpaid for fourteen (14)
days or more by the Purchaser on any account whatsoever
pursuant to this Agreement, such interest to be calculated
from the date upon which such monies become due and payable
until payment of such monies in full. Such interest will be
compounded monthly and if not paid shall itself bear interest;
or
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(g) (at Tiger Telematics, Inc.'s discretion) such sum as Tiger
Telematics, Inc. would otherwise be entitled to pursuant to
the Late Payment of Commercial Debts (Interest) Xxx 0000.
9.0 Rights and Obligations on Termination
(a) Purchaser shall not knowingly do any act or thing that would
have the effect of causing another person in the Territory to
believe that the Purchaser is still associated or connected
with Tiger Telematics, Inc..
9.1 Notwithstanding the termination of this Agreement:
(b) the provisions of clause 9 shall not terminate but shall
continue to remain in full force and effect;
(c) the Purchaser shall continue to pay any royalties or other
applicable payments due hereunder and shall continue to
provide access to its records and accounts and furnish
information and reports in accordance with provisions of this
agreement.
(d) Tiger Telematics, Inc. and the Purchaser shall continue to
have rights and remedies with respect to damages and any other
relief for breach of this Agreement on the part of the other
occurring prior thereto; and
(e) any provisions of this Agreement necessary to enable the
parties to enforce their respective rights and obligations
hereunder shall remain in full force and effect.
9.2 The Purchaser acknowledges that no rights whatsoever are extended to it
beyond the expiration or termination of this Agreement other than as
provided in this clause 0 and further acknowledges that it shall not be
entitled to any compensatory payment on the expiration or termination
of this Agreement.
10.0 Representations and Warranties
10.1 Tiger Telematics, Inc. represents and warrants that:
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(a) it is a corporation duly incorporated and validly existing
under the laws of its jurisdiction of incorporation as set
forth on page 1 of this Agreement;
(b) it has full corporate power and authority to enter into this
Agreement and to carry out the transactions contemplated
hereby;
10.2 The Purchaser represents and warrants that:
(c) it is a corporation duly incorporated and validly existing
under the laws of its jurisdiction of incorporation as set
forth on page 1 of this Agreement;
(d) it has full corporate power and authority to enter into this
Agreement and to carry out the transactions contemplated
hereby;
(e) its board of directors has taken all action required by the
law of its jurisdiction of incorporation, its memorandum or
articles of association, by-laws or similar constituent
documents or otherwise to authorise execution of this
Agreement and the consummation of the transactions
contemplated hereby;
(f) this Agreement is a valid agreement and is binding on it and
enforceable against it in accordance with its terms;
(g) neither the execution of this Agreement nor the consummation
of the transactions contemplated hereby will violate any
statute or law or any judgement, decree, order, regulation or
rule of any court or governmental agency or authority in the
Territory; and
(h) except for any required approvals of governmental agencies or
authorities, which it will use its best efforts to obtain, no
consent of any person is necessary to the
consummation of transactions contemplated hereby. In the event that any
required consents are not obtained or are given on terms not acceptable
to Tiger Telematics, Inc., Tiger Telematics, Inc. shall be entitled
upon receipt of knowledge thereof forthwith to terminate this
Agreement.
11.0 Agency Relationship
Except as otherwise provided herein, nothing in this Agreement shall
render one party the agent of the other in relation to any rights or
obligations granted under this Agreement or any transaction carried on
pursuant to it, and under no circumstances shall either party pledge or
attempt to pledge the credit of the other or incur any credit on behalf
of the other.
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12.0 Notices
12.1 Any notice served by one party upon the other shall be in writing in
the English language and shall be delivered personally (including by
courier) or be sent by facsimile. Such notice or document shall be
deemed to have been received in the case of personal delivery when
delivered or, if sent by facsimile, on the day following that on which
the facsimile was sent, PROVIDED THAT the party serving such notice
shall send a copy by registered air mail within two (2) days after
sending the notice.
Such notice shall be addressed as follows (or at such other place
designated in writing by the relevant party);
(a) If to Tiger Telematics, Inc.:
0000 Xxxxxxx Xx. Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxx CEO
Facsimile: 000-000-0000
Telephone: 000-000-0000
If to Norrtulls:
Xxxxxxxxxxxxx 00 X
000 00 Xxxxxxxxx
Attention: Xxxx Xxxxxxxxx Xxxxxxx
Facsimile:
Telephone:
13.0 Assignment
13.1 Tiger Telematics, Inc. may assign any of its rights or delegate or
sub-contract any of its duties arising out of or under this Agreement
and shall be entitled to use the services of the Nominee in connection
with the performance of any of its duties or the enforcement of any of
its rights hereunder,
13.2 The Purchaser may not assign any of its rights or delegate or
sub-contract any of its duties arising out of or under this Agreement
without the prior written consent of Tiger Telematics, Inc. which
consent may be withheld by Tiger Telematics, Inc. in its absolute
discretion.
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13.3 In the event of a Change of Control the Purchaser shall immediately
notify Tiger Telematics, Inc. in writing giving full particulars of
such Change of Control.
14.0 On the request of Tiger Telematics, Inc., the Purchaser will execute,
acknowledge and deliver all such documents, deeds, agreements or other
instruments as may be requested by Tiger Telematics.
14.1 The Purchaser shall at its own expense ensure that all local and
national laws, rules, regulations and other requirements and codes of
practice applicable in the Territory and/or any other country where the
Products are manufactured and all policies and ethical and other
standards from time to time specified by Tiger Telematics, Inc. in
respect of the treatment of any persons involved in the manufacture or
sale of any Products hereunder or otherwise in respect of any human
rights or other issues are complied with in relation to all activities
of the Purchaser and/or its authorised sub-contractors under this
Agreement.
14.2 The Purchaser shall ensure that adequate records are maintained to
demonstrate compliance with the obligations contained in clause 0 and
shall as and when requested by Tiger Telematics, Inc.:-
(a) furnish or cause to be furnished to Tiger Telematics, Inc.
such proof of compliance with the obligations contained in
clause 0 as Tiger Telematics, Inc. may require;
(b) permit the Tiger Telematics, Inc. or procure Tiger Telematics,
Inc. to be permitted to undertake such inspection of any
activities of the Purchaser or any of its authorised
sub-contractors under this Agreement as Tiger Telematics, Inc.
may require;
(c) permit Tiger Telematics, Inc. or procure Tiger Telematics,
Inc. to be permitted to inspect any records required to be
maintained under this agreement.
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15.0 Local Law Compliance
15.1 The Purchaser shall at its own expense comply with all relevant
legislation and other requirements of the Territory in connection with
its activities under this Agreement The Purchaser shall furnish proof
of such compliance to Tiger Telematics, Inc. when and if Tiger
Telematics, Inc. requires.
16.0 Governing Law
16.1 The formation, construction, validity and performance of this Agreement
shall be governed in accordance with the laws of England and Wales.
16.2 The parties irrevocably submit to the exclusive jurisdiction of the
courts of England and Wales. Such submission shall not limit the right
of Tiger Telematics, Inc. to commence any proceedings arising out of
this Agreement in any jurisdiction it may consider appropriate.
16.3 The Purchaser waives any objection to the venue of any legal process on
the basis that the process has been brought in an inconvenient forum.
17.0 Force Majeure
17.1 Neither party shall be liable for delay or failure in the performance
of this Agreement arising from any one or more of the following causes,
the occurrence of which shall forthwith be notified to the other upon
such delay or failure:
(a) act of God or public enemy or war (declared or undeclared);
(b) acts of persons engaged in subversive activities or sabotage;
(c) fires, floods, explosions or other catastrophes;
(d) epidemics or quarantine restrictions;
(e) strikes, similar labour disruptions or public demonstrations
and unrest;
(f) freight embargoes;
(g) unusually severe weather;
(h) delays of a supplier of either party due to any of the above
causes or events; or
(i) any other causes, similar or dissimilar, beyond the reasonable
control of the party liable to perform.
PROVIDED THAT in any case due diligence is exercised to cure such
causes and resume performance and the time for performance by such
party shall be extended by a period equal to the duration of any such
delay.
17.2 If one or more causes of force Majeure are asserted by either party as
a basis for non-performance of this Agreement and such non-performance
continues for a consecutive period of ninety (90) days the other party
shall have the right to terminate this Agreement forthwith by giving
written notice to that effect.
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18.0 Whole Agreement
This Agreement contains the entire agreement and understanding between
the parties hereto with regard to its subject matter and supersedes all
prior agreements whether written or oral.
19.0 Agreement Severable
This Agreement is severable and if any provision shall be held invalid,
illegal or unenforceable, in whole or in part by a court of competent
jurisdiction or any other competent body in any jurisdiction (including
both by reason of the provisions of any legislation and also by reason
of any decision of any court or authority having jurisdiction over the
parties in the Territory), then that provision shall be severed in the
jurisdiction in question and such invalidity, illegality or
unenforceability shall not in any way whatsoever prejudice or affect
the validity or enforceability of the remainder. To the extent legally
permissible, an arrangement which reflects the original intent of the
parties shall be substituted for such invalid or unenforceable
provision provided always that if the reasonable opinion of either
party any such severance materially affects the commercial basis of
this Agreement and no agreement can be reached by the parties as to the
means by which such matters can be resolved, such party shall have the
right to terminate this Agreement with immediate effect upon giving 90
days written notice to the other containing the reason(s) why the
commercial basis has been materially affected.
20.0 Agreement to Co-operate
Each party hereto, upon the reasonable request of the other, will
execute, acknowledge and deliver, or cause to be executed, acknowledged
and delivered, all such further documents, deeds, assignments,
licenses, transfers or conveyances as may be required both to satisfy
the requisites of the law of the Territory and to give full effect to
the terms and conditions of this Agreement.
21.0 Waiver and Variation
A provision of or a right created under this Agreement may not be
waived or varied except in writing signed by a duly authorised
representative of the party or parties to be bound. No delay or failure
of either party in exercising or enforcing any of its rights or
remedies shall operate as a waiver thereof nor shall any partial
exercise of such right or remedy preclude any other or further exercise
of such right.
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22.0 Execution in Counterpart
This Agreement may be executed in any number of counterparts each of
which shall be deemed an original and all of such counterparts taken
together shall be deemed to constitute one and the same instrument.
23.0 Third Party Rights
Save as set out in this Agreement, this Agreement is not intended to
and shall not grant rights to any third party pursuant to the Contracts
(Rights of Third Parties) Xxx 0000. The parties agree that Section 2(1)
of the said Act shall not apply and the parties may rescind or vary
this Agreement without the consent of any third party.
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IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year first above written. Royalty Agreement signature page.
TIGER TELEMATICS, INC.
By:__________________________________
Name: Xxxxxxx X. Xxxxxxxxx
Title: CEO
Norrtulls Mobilextra Aktiebolag
By:__________________________________
Name: Xxxxxxxxx Xxxxxxx
Title: Managing Director
Tiger Telematics, Ltd..
By:__________________________________
Name:
Title: Managing Director
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