EXHIBIT 99.1
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STOCKHOLDERS' AGREEMENT
among
xxxxxxxxx.xxx Incorporated,
Prime Pro Group Limited,
Forthcoming Era Limited,
Potton Resources Limited
and
ULTIMATE PIONEER LIMITED
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DATED AS OF JUNE 5, 2001
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STOCKHOLDERS' AGREEMENT
THIS STOCKHOLDERS' AGREEMENT (this "AGREEMENT") is made as of June 5,
2001, by and among xxxxxxxxx.xxx Incorporated, a Delaware corporation (the
"COMPANY"), Prime Pro Group Limited, a British Virgin Islands corporation
("PPG") and wholly owned subsidiary of Xxxxxx Kong (Holdings) Limited, a Hong
Kong corporation ("CK"), Forthcoming Era Limited, a British Virgin Islands
corporation ("FEL") and wholly owned subsidiary of Xxxxxxxxx Whampoa Limited, a
Hong Kong corporation ("HW") (PPG and FEL are the "ORIGINAL PURCHASERS"), Potton
Resources Limited, a British Virgin Islands corporation and wholly owned
subsidiary of CK ("PRL"), and Ultimate Pioneer Limited, a British Virgin Islands
corporation and a wholly owned subsidiary of HW ("UPL") (PRL and UPL are the
"NEW PURCHASERS"; the Original Purchasers and the New Purchasers are the
"PURCHASERS"). WHEREAS, the Original Purchasers and the Company are parties to a
Stock Purchase Agreement dated as of February 15, 2001 (the "COMPANY PURCHASE
AGREEMENT"); the Original Purchasers and Xxx Xxxxxx and the Xxx X. Xxxxxx
Irrevocable Credit Trust (the "WALKER SELLERS") are parties to a Stock Purchase
Agreement dated as of February 15, 2001 (the "ORIGINAL XXXXXX PURCHASE
AGREEMENT"); and the New Purchasers and the Walker Sellers are parties to a
Stock Purchase Agreement dated as of the date hereof (the "NEW XXXXXX PURCHASE
AGREEMENT") (the Company Purchase Agreement, the Original Xxxxxx Purchase
Agreement and the New Xxxxxx Purchase Agreement are the "PURCHASE AGREEMENTS").
WHEREAS, the Company and the Purchasers wish to make certain amendments to
Sections 5.3 and 6.4 of the Company Purchase Agreement as provided herein
effective as of the closing under the New Xxxxxx Purchase Agreement.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. DEFINITIONS. Capitalized terms used and not defined herein shall have
the meanings assigned to such terms in the Company Purchase Agreement.
2. EFFECTIVENESS; EFFECT ON COMPANY PURCHASE AGREEMENT. This Agreement
shall take effect on the date hereof; PROVIDED, HOWEVER, that Sections 3, 4 and
6 hereof shall take effect as of the time of the Closing (as defined in the New
Xxxxxx Purchase Agreement). In the event of any termination of the New Xxxxxx
Purchase Agreement prior to such Closing, this Agreement will terminate
simultaneously without further action of the parties hereto. Effective as of
such Closing, Section 5.3 of the Company Purchase Agreement will be superseded
in its entirety by Section 3 hereof, and Section 6.4 of the Company Purchase
Agreement will be superseded in its entirety by Section 4 hereof. This Agreement
shall not be construed to effect any other amendment to or modification of the
provisions of the Company Purchase Agreement, which except as expressly provided
herein will continue in full force and effect.
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3. REPRESENTATION ON THE BOARD OF DIRECTORS.
(a) In addition to the designee of FEL elected to the Company's Board of
Directors pursuant to Section 5.3 of the Company Purchase Agreement, the Company
shall use commercially reasonable efforts to cause to be elected to the
Company's Board of Directors, effective as of the Closing under the New Xxxxxx
Agreement, two nominees designated by the Purchasers; PROVIDED, HOWEVER, that
the proposed nominees are Eligible Persons. "ELIGIBLE PERSON" means an
individual (i) who is reasonably acceptable to the Company's Board of Directors,
(ii) whose election to the Company's Board of Directors would not, in the
opinion of counsel for the Company, violate or be in conflict with, or result in
any material limitation on the ownership or operation of any business or assets
of the Company or any of its Subsidiaries under, any Applicable Law and (iii)
who has agreed in writing with the Company to comply with Section 4 of this
Agreement and to resign as a director of the Company if requested to do so
pursuant to this Section 3. With respect to each meeting of stockholders of the
Company at which a designee of the Purchasers comes up for reelection, the
Company shall use reasonable efforts to cause such designee (or another Eligible
Person designated by the Purchasers) to be included in the list of candidates
recommended by the Company's Board of Directors for election to the Company's
Board of Directors. Upon the resignation, removal or death of any designee of
the Purchasers on the Company's Board of Directors, the Company shall use
reasonable efforts to have the vacancy thereby created filled with an Eligible
Person designated by the Purchasers.
(b) The Purchasers will have the following rights to designate nominees to
serve on the Company's Board of Directors under Section 3(a):
(i) the Purchasers will have the right to designate three nominees
to serve on the Company's Board of Directors for so long as they and
their Affiliates continue to own beneficially at least twenty
percent (20%) of the Current Outstanding Shares (as defined below);
(ii) if the Purchasers beneficially own less than twenty percent
(20%) of the Current Outstanding Shares but at least ten percent
(10%) of the Current Outstanding Shares, the Purchasers will have
the right to designate two nominees to serve on the Company's Board
of Directors; and
(iii) if the Purchasers beneficially own less than ten percent (10%)
of the Current Outstanding Shares but at least five percent (5%) of
the Current Outstanding Shares, the Purchasers will have the right
to designate one nominee to serve on the Company's Board of
Directors.
Upon either (A) the violation in any material respect of this Section 3 or
any part of Article V of the Company Purchase Agreement by the Purchasers, or
(B) 30 days' prior written notice of termination from the Purchasers, the
Purchasers shall no longer be entitled to designate for election to the
Company's Board of Directors any nominees pursuant to this Section 3. At such
time, if requested by the Company, the designees of the Purchasers shall resign
from the Company's Board of Directors. For
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purposes of this Section 3, "CURRENT OUTSTANDING SHARES" shall mean 206,433,004
shares of Common Stock outstanding as of May 31, 2001, subject to adjustment
only for stock splits or combinations of shares and dividends of Common Stock
issued pro rata to all holders of Common Stock for no consideration. The number
of Current Outstanding Shares shall be increased by any additional shares of
Common Stock purchased by the Purchasers or their Affiliates from the Company,
either directly or in an underwritten offering, after the date hereof.
(c) Upon any designee of the Purchasers ceasing to be an Eligible Person
or the Purchasers having ceased to have the right to designate any of their
nominees to the Company's Board of Directors under Section 3(b), such designee
or designees shall, if requested by the Company, resign from the Company's Board
of Directors.
(d) Without in any way limiting the foregoing clauses (a) through (c), the
Company hereby agrees that in the event that a designee of the Purchasers is not
elected to the Company's Board of Directors, the Purchasers shall have the
ability to appoint a representative (the "BOARD REPRESENTATIVE") to attend all
meetings of the Company's Board of Directors or any committee thereof, and such
Board Representative shall be provided with notices of all meetings of the
Company's Board of Directors, as well as copies of minutes, resolutions and
other instruments of, or communications to, the Board of Directors; PROVIDED
that the Purchasers, their Affiliates and any such Board Representative shall
have no duties, responsibilities or liability by virtue of attendance at such
meetings or the failure to attend the same; and PROVIDED FURTHER, that this
Section 3(d) shall not be applicable to the Purchasers at any time when they are
not entitled to designate a nominee for election as director as a result of the
provisions of Section 3(b).
4. STANDSTILL.
Each Purchaser shall not (and shall cause its Affiliates not to), without
the prior written consent of the Company's Board of Directors:
(a) acquire, announce an intention to acquire, offer or propose to acquire
or agree to acquire, directly or indirectly, any voting securities of the
Company as a result of which acquisition the Purchasers (and their Affiliates),
collectively, would beneficially own more than 32.5% of the outstanding capital
stock of the Company on a fully diluted basis, other than acquisitions by way of
share dividends or other distributions pro rata to holders of voting securities;
(b) propose that the Purchasers or any Affiliates of the Purchasers enter
into, directly or indirectly, any merger or other business combination involving
the Company or propose to purchase, directly or indirectly, a material portion
of the assets of the Company or any of its Subsidiaries;
(c) make, or in any way participate in, directly or indirectly, any
"solicitation" of "proxies" (as such terms are used in Regulation 14A
promulgated under the Exchange Act) to vote or consent with respect to any
voting securities of the Company (whether or not such solicitation is subject to
regulation under Regulation 14A promulgated under the Exchange Act);
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(d) form, join or participate in or encourage the, formation of a "group"
with any person (within the meaning of Section 13(d)(3) of the Exchange Act),
other than with the Purchaser's Affiliates, any other Purchaser and such other
Purchaser's Affiliates;
(e) deposit any voting securities of the Company into a voting trust or
subject any such voting securities to any arrangement or agreement with respect
to the voting or disposition thereof (other than any that may be effected among
the Purchasers and their Affiliates);
(f) initiate, propose or otherwise solicit stockholders of the Company for
the approval of one or more stockholder proposals with respect to the Company as
described in Rule 14a-8 under the Exchange Act, or induce or attempt to induce
any other person to initiate any such stockholder proposal with respect to the
Company;
(g) except in accordance with Section 3 of this Agreement, seek election
to or seek to place a representative on the Company's Board of Directors or seek
the removal of any member of the Company's Board of Directors;
(h) (i) solicit, seek to effect, negotiate with or provide non-public
information to any other person with respect to, (ii) make any statement or
proposal, whether written or oral, to the Company's Board of Directors or any
director or officer of the Company with respect to, or (iii) otherwise make any
public announcement or proposal whatsoever with respect to, any form of business
combination transaction (with any person) involving a change of control of the
Company or the acquisition of a substantial portion of the equity securities or
assets of the Company or any of its Subsidiaries, including a merger,
consolidation, tender offer, exchange offer or liquidation of the Company's
assets, or any restructuring, recapitalization or similar transaction with
respect to the Company or any of its Subsidiaries; PROVIDED, HOWEVER, that the
foregoing shall not (A) apply to discussions between or among the Purchasers,
their Affiliates or any of their employees, agents or representatives or (B) in
the case of clause (ii) above, limit the ability of any designee of the
Purchasers on the Company's Board of Directors to make any such statement or
proposal or to discuss any such proposal with any officer or director of or
advisor to the Company or advisor to the Company's Board of Directors unless, in
either case, it would reasonably be expected to require the Company to make a
public announcement regarding such discussion, statement or proposal;
(i) otherwise act, alone or in concert with others, to seek to control or
influence the management or policies of the Company (except for (A) voting in
its full discretion as a holder of voting securities in accordance with the
terms of such voting securities and, if applicable, together with the other
Purchasers and the Purchasers' Affiliates and (B) actions taken as a director of
the Company);
(j) request, or take any action to obtain, any list of holders of voting
securities of the Company for the purpose of accomplishing any of the actions in
Sections 4(a)-(i) hereof;
(k) publicly disclose any intention, plan or arrangement inconsistent with
the foregoing, or make any such disclosure privately if it would reasonably be
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expected to require the Company to make a public announcement regarding such
intention, plan or arrangement; or
(l) advise, assist (including by knowingly providing or arranging
financing for that purpose) or knowingly encourage any other person in
connection with any of the foregoing.
5. CONSENT; COOPERATION.
(a) The Company expressly consents to the execution and performance by the
New Purchasers of the New Xxxxxx Agreement and agrees that such execution and
performance shall not constitute a breach or violation of Section 6.4(a) of the
Company Purchase Agreement prior to its amendment by this Agreement.
(b) The Company agrees to provide all reasonable cooperation in connection
with preparing and making necessary filings and obtaining necessary clearance
under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the
"HSR ACT"), in connection with the purchase of shares of Common Stock by the New
Purchasers under the New Xxxxxx Agreement. The Company agrees to request an
opinion of its counsel on the issue of the applicability of stockholder consent
in connection with the purchase of shares of Common Stock by the New Purchasers
under the New Xxxxxx Agreement in light of the rules of the National Association
of Securities Dealers, Inc. (the "NASD") and to provide reasonable cooperation
and assistance if it is mutually agreed by the parties hereto to seek the
guidance of the NASD on this issue. The Company also agrees to take reasonable
measures to carry out as soon as reasonably practicable any meeting or
solicitation of consents of its stockholders that may be required under the
rules of the NASD in order to permit the closing of the purchase of shares of
Common Stock by the New Purchasers under the New Xxxxxx Agreement. If such a
meeting or solicitation of consents is required, the Company agrees that it will
recommend to stockholders that they vote in favor of appropriate resolutions to
permit such purchase under the New Xxxxxx Agreement.
The New Purchasers agree to reimburse the Company for (i) any HSR Act
filing fees paid by the Company in connection with the acquisition by the New
Purchasers of Common Stock pursuant to the New Xxxxxx Purchase Agreement and
(ii) any out-of-pocket costs and expenses, including reasonable attorney fees,
incurred by the Company in connection with a "second request" issued pursuant to
the HSR Act. The reasonable out-of-pocket costs and expenses, including attorney
fees, incurred by the Company in connection with any shareholder meeting or
solicitation referred to above shall be borne one-half by the Company and
one-half by the New Purchasers. All of the parties hereto agree to pay their own
costs and expenses, including attorney fees, incurred in connection with the
negotiation and execution of this Agreement.
6. REGISTRATION RIGHTS AGREEMENT.
(a) The New Purchasers shall become parties to the Registration Rights
Agreement dated as of February 15, 2001, among the Company and the Original
Purchasers (the "Registration Rights Agreement"), and shall be Designated
Holders
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and Investors as defined therein, and the Shares acquired by the New Purchasers
pursuant to the New Xxxxxx Purchase Agreement shall be Registrable Securities as
defined therein. The following further amendments set forth in this Section 6
shall be made to the Registration Rights Agreement.
(b) The definitions in Section 1 shall be amended as follows:
(i) The definition of "Stock Purchase Agreement" shall be amended to read
in its entirety as follows:
"`STOCK PURCHASE AGREEMENT' means (i) in the case of PPGL and FEL, the
Stock Purchase Agreement dated as of February 15, 2001, among the Company, PPGL
and FEL and (ii) in the case of PRL and UPL, the Stock Purchase Agreement dated
as of June 5, 2001, among the Walker Sellers, PRL and UPL."
(ii) The following two definitions shall be added to Section 1:
"`PRL'" means Potton Resources Limited, a British Virgin Islands
corporation and wholly owned subsidiary of CKH."
"`UPL' means Ultimate Pioneer Limited, a British Virgin Islands
corporation and a wholly owned subsidiary of HWL."
(c) The first sentence of Section 3(a) shall be amended to read in its
entirety as follows:
"At any time after the date of this Agreement, each of (i) PPGL and PRL (acting
jointly for the purposes of this Section 3(a)), (ii) FEL and UPL (acting jointly
for the purposes of this Section 3(a)), or (iii) one or more of the Demand
Stockholders, acting through its representative identified on the instrument
executed by it in the form attached hereto as EXHIBIT A or such representative's
written designee (the "Initiating Holders"), may make a written request to the
Company to register, under the Securities Act on any form for which the Company
then qualifies and deems appropriate (a "Demand Registration"), the number of
Registrable Securities stated in such request; PROVIDED, HOWEVER, that the
Company shall not be obligated to effect more than one Demand Registration for
each of PPGL, FEL, PRL, UPL and each of the Demand Stockholders pursuant to this
Section 3."
(d) The first sentence of Section 5(a) shall be amended to read in its
entirety as follows:
"At any time when the Company is eligible for use of Form S-3, in the event that
the Company shall receive from (i) PPGL, (ii) FEL, (iii) PRL, (iv) UPL or (v)
one or more of the Demand Stockholders, acting through its representative
identified on the instrument executed by it in the form attached hereto as
EXHIBIT A or such representative's written designee (the "S-3 Initiating
Holders"), a written request that the Company register, under the Securities
Act, on Form S-3 (or any successor form then in effect) (an "S-3 Registration"),
all or a portion of the Registrable Securities owned by such S-3 Initiating
Holders, the Company shall give written notice of such request to all of the
Designated Holders (other than S-3 Initiating Holders which have
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requested an S-3 Registration under this Section 5(a)) at least 30 days before
the anticipated filing date of such Form S-3, and such notice shall described
the proposed registration and offer such Designated Holders the opportunity to
register the number of Registrable Securities as each such Designated Holder may
request in writing to the Company, given within 15 days after their receipt from
the Company of the written notice of such registration."
(e) The first sentence of Section 5(c) shall be amended to read in its
entirety as follows:
"At any time after the date of this Agreement when an S-3 Registration could be
demanded with respect to Registrable Securities under Section 5(a), each of (i)
PPGL, (ii) FEL, (iii) PRL, (iv) UPL or (v) one or more of the Demand
Stockholders, acting through its representative identified on the instrument
executed by it in the form attached hereto as EXHIBIT A or such representative's
written designee (the "Shelf Initiating Holders") shall be entitled to request
the Company to file and maintain, in lieu of an S-3 Registration with respect to
such Registrable Securities under Section 5(a), a Shelf Registration with the
SEC under which all or any portion of the shares of Common Stock that are owned
by it at the time of such request may be resold at any time and from time to
time until such time and as all such Common Stock may be sold by the Shelf
Initiating Holders in a single transaction pursuant to Rule 144 under the
Securities Act in accordance with the volume limitations specified in paragraph
(e) thereof (and without giving effect to paragraph (k) thereof)."
(f) The first sentence of Section 10(d) shall be amended to read in its
entirety as follows:
"Except as otherwise provided herein, the provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given unless consented to in writing by (i) the
Company, (ii) PPGL, (iii) FEL, (iv) PRL, (v) UPL, (vi) the holders holding
Registrable Securities representing (after giving effect to any adjustments) at
least a majority of the aggregate number of Registrable Securities owned by each
Demand Stockholder and, if the amendment, supplement, modification, waiver or
consent adversely affects the rights or obligations of the Piggy-Back
Stockholders, then also by (vii) the holders holding Registrable Securities
representing (after giving effect to any adjustments) at least a majority of the
aggregate number of Registrable Securities owned by each Piggy-Back
Stockholder."
(g) Clause (iv) of Section 10(e) shall be amended to read in its entirety
as follows:
"(iv) if to PRL:
Potton Resources Limited
x/x Xxxxxx Xxxx (Xxxxxxxx) Xxxxxxx
0/X, Xxxxxx Xxxx Center
0 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
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with a copy to:
Xxxxxx Kong (Holdings) Limited
8/F, Xxxxxx Kong Center
0 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
Telecopy: (000) 0000-0000
Attention: Xx. Xxxxxx Ip
(v) if to UPL:
Ultimate Pioneer Limited
Offshore Incorporations Limited
P.O. Box 957
Offshore Incorporations Centre
Road Town, Tortola
British Virgin Islands
with a copy to:
Xxxxxxxxx Whampoa Limited
00/X Xxxxxxxxx Xxxxx
00 Xxxxxxxx Xxxx Xxxxxxx
Xxxx Xxxx
Telecopy (000) 0000-0000
Attention: Company Secretary
(vi) if to any other Designated Holder, at its address as it appears on
the record books of the Company."
(h) Clause (ii) of the second sentence of Section 10(f) shall be amended
to read in its entirety as follows:
"(ii) automatically transferred upon any transfer of a number of Registrable
Securities representing 65% or more of the Investor's holding of Common Stock
purchased pursuant to the applicable Stock Purchase Agreement to a single
purchaser or `group' of purchasers (within the meaning of Section 13(d)(3) of
the Exchange Act) if in such transfer the purchaser(s) will receive `restricted
securities' within the meaning of Rule 144 (and such purchaser or group will
become a Demand Stockholder hereunder by executing and delivering an instrument
in the form attached hereto as Exhibit A); PROVIDED, HOWEVER, that for the
purposes of requesting a Demand Registration under Section 3(a), such
purchaser(s) shall be required to make any such request jointly with the other
Investor with which the transferor would have been required to make such
request."
7. MISCELLANEOUS.
(a) NOTICES. All notices, demands, requests, consents, approvals or other
communications (collectively, "NOTICES") required or permitted to be given
hereunder or which are given with respect to this Agreement shall be in writing
and shall be
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personally served, delivered by a reputable air courier service with tracking
capability, with charges prepaid, or transmitted by hand delivery or facsimile,
addressed as set forth below, or to such other address as such party shall have
specified most recently by written notice. Notice shall be deemed given on the
date of service or transmission if personally served or transmitted by
facsimile, provided the sender receives evidence of complete transmission
without error. Notice otherwise sent as provided herein shall be deemed given on
the third business day following delivery of such notice to a reputable air
courier service.
If to the Company, to it at:
xxxxxxxxx.xxx Incorporated
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Office of the General Counsel
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Attention: Xxxxxxx X. Xxxxxx, Xx., Esq.
Facsimile: (000) 000-0000
If to FEL or UPL, as follows:
Forthcoming Era Limited
Offshore Incorporations Limited
P.O. Box 957
Offshore Incorporations Centre
Road Town, Tortola
British Virgin Islands
Ultimate Pioneer Limited
Offshore Incorporations Limited
P.O. Box 957
Offshore Incorporations Centre
Road Town, Tortola
British Virgin Islands
with a copy to:
Xxxxxxxxx Whampoa Limited
00/X Xxxxxxxxx Xxxxx
00 Xxxxxxxx Xxxx Xxxxxxx
Xxxx Xxxx
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Attention: Company Secretary
Facsimile: (000) 0000 0000
and if to PPG or PRL to:
Prime Pro Group Limited
Potton Resources Limited
x/x 0/X, Xxxxxx Xxxx Xxxxxx
0 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
Attention: Xx. Xxxxxx Ip
Facsimile: (000) 0000 0000
(b) GOVERNING LAW. This Agreement and the rights and obligations of the
parties hereunder shall be governed by, and construed in accordance with, the
laws of the State of New York, and each party hereto submits to the
non-exclusive jurisdiction of the state and federal courts within the County of
New York in the State of New York.
(c) ENTIRE AGREEMENT. This Agreement (including all agreements entered
into pursuant hereto and all certificates and instruments delivered pursuant
hereto and thereto), together with the Company Purchase Agreement, constitutes
the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes all prior and contemporaneous agreements, representations,
understandings, negotiations and discussions between the parties or their
affiliates, whether oral or written, with respect to the subject matter hereof.
(d) MODIFICATIONS AND AMENDMENTS. No amendment, modification or
termination of this Agreement shall be binding upon any other party unless
executed in writing by the parties hereto intending to be bound thereby.
(e) WAIVERS AND EXTENSIONS. Any party to this Agreement may waive any
right, breach or default which such party has the right to waive, PROVIDED that
such waiver will not be effective against the waiving party unless it is in
writing, is signed by such party, and specifically refers to this Agreement.
Waivers may be made in advance or after the right waived has arisen or the
breach or default waived has occurred. Any waiver may be conditional. No waiver
of any breach of any agreement or provision herein contained shall be deemed a
waiver of any preceding or succeeding breach thereof nor of any other agreement
or provision herein contained. No waiver or extension of time for performance of
any obligations or acts shall be deemed a waiver or extension of the time for
performance of any other obligations or acts.
(f) TITLES AND HEADINGS. Titles and headings of sections of this Agreement
are for convenience only and shall not affect the construction of any provision
of this Agreement.
(g) EXPENSES; BROKERS. Each party shall pay its own costs and expenses in
connection with the negotiation and execution of this Agreement and the
transactions
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contemplated hereby, including without limitation, fees and disbursements of
counsel, financial advisors and accountants. Each of the parties represents to
the others that neither it nor any of its affiliates has used a broker or other
intermediary, in connection with the transactions contemplated by this Agreement
for whose fees or expenses any other party will be liable and respectively
agrees to indemnify and hold the others harmless from and against any and all
claims, liabilities or obligations with respect to any such fees or expenses
asserted by any person on the basis of any act or statement alleged to have been
made by such party or any of its affiliates.
(h) PRESS RELEASES AND PUBLIC ANNOUNCEMENTS. All press releases and
similar public announcements relating to the transactions contemplated by this
Agreement shall be made only if mutually agreed upon by the Company and each of
the Purchasers, except to the extent that such disclosure is, in the opinion of
counsel, required by law or by stock exchange regulation; PROVIDED that any such
required disclosure shall only be made, to the extent consistent with law, after
consultation with each of the Purchasers.
(i) ASSIGNMENT; NO THIRD PARTY BENEFICIARIES. This Agreement and the
rights, duties and obligations hereunder may not be assigned or delegated by
either the Company or the Purchasers without the prior written consent of the
other parties hereto; PROVIDED that each Purchaser may assign or delegate its
rights, duties and obligations hereunder to a Permitted Transferee or to such
other person as may be reasonably satisfactory to the Company. Except as
provided in the preceding sentence, any assignment or delegation of rights,
duties or obligations hereunder made without the prior written consent of the
other parties hereto shall be void and of no effect. This Agreement and the
provisions hereof shall be binding upon and shall inure to the benefit of each
of the parties and their respective successors and permitted assigns. This
Agreement is not intended to confer any rights or benefits on any persons that
are not party hereto other than as expressly set forth in this Section 7(i).
(j) 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 possible and be valid and enforceable.
(k) COUNTERPARTS; FACSIMILE. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all of which taken
together shall constitute one and the same instrument. Executed signature pages
may be delivered via facsimile; PROVIDED, that the originally executed signature
pages are delivered to the appropriate parties within five (5) business days
following delivery via facsimile.
(l) FURTHER ASSURANCES. Each party hereto, upon the request of any other
party hereto, shall do all such further acts and execute, acknowledge and
deliver all such further instruments and documents as may be necessary or
desirable to carry out the transactions contemplated by this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
XXXXXXXXX.XXX INCORPORATED
By:
------------------------------------
Name:
Title:
PRIME PRO GROUP LIMITED
By:
------------------------------------
Name:
Title:
FORTHCOMING ERA LIMITED
By:
------------------------------------
Name:
Title:
POTTON RESOURCES LIMITED
By:
------------------------------------
Name:
Title:
ULTIMATE PIONEER LIMITED
By:
------------------------------------
Name:
Title:
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