ASSET PURCHASE AGREEMENT
among
Keo International, Inc.,
Comsa Acquisition Corp.
Com S.A.
and
Valurex, S.A
------------------
As of May 31, 2000
------------------
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT, (hereinafter referred to as the
"Agreement") is made and entered into as of the 31st day of May 2000 by and
among Keo International, Inc., a Delaware corporation (hereinafter referred
to as "Keo"), Valurex S.A., a societe anonyme formed under the laws of
Luxembourg and the sole shareholder of Com S.A. (the "Comsa Shareholder"),
Comsa Acquisition Corp., a Delaware corporation and wholly-owned
subsidiary of Keo, (hereinafter referred to as "Acquisition"), and Com S.A.,
a French Societe Anonyme (hereinafter referred to as "Comsa").
RECITALS
WHEREAS, the parties entered into a Stock Purchase and Exchange Agreement,
dated January 31, 2000, whereby Keo purchased, through its wholly-owned
subsidiary, Acquisition, all of the issued and outstanding capital stock of
Comsa held by the Comsa Shareholder (the "Stock Purchase and Exchange
Agreement");
WHEREAS, the parties now wish to rescind the Stock Purchase and Exchange
Agreement and the Ancillary Agreements and to enter into this Asset Purchase
Agreement whereby Comsa will assign all of its right title and interest in the
Contracts listed on Exhibit 1 to Acquisition.
NOW, THEREFORE, in consideration of the premises and mutual
representations, warranties and covenants herein contained, the parties hereby
agree as follows:
ARTICLE I
THE SALE AND PURCHASE OF THE CONTRACTS
SECTION 1.1 Rescission of the Stock Purchase and Exchange Agreement. The
Stock Purchase and Exchange Agreement is hereby rescinded. Capitalized terms not
defined herein shall have the meanings assigned to them in the Stock Purchase
and Exchange Agreement.
SECTION 1.2 Asset Sale and Purchase. Simultaneous with the execution
hereof, and subject to and upon the terms and conditions of this Agreement, the
DGCL and applicable French law, Comsa shall sell, assign and convey all of its
right, title and interest and Acquisition shall purchase, the contracts of Comsa
listed on Exhibit 1 (the "Assets"). As consideration for the sale of the Assets
to Acquisition, Comsa shall receive an aggregate of Two Million, Eight Hundred
Thirty-One Thousand, Twenty (2,831,020) shares (the "New Shares") of authorized
but previously unissued Keo common stock, par value $0.001 per share, which
shall represent 51% of the capital stock of Keo, determined on a pro forma basis
in accordance with Section 1.2(b).
(b) Pro Forma Basis for calculation. The percentage of the
shares issuable to Comsa shall be derived from a notional denominator based on
5,551,020 shares which represents the total number of Keo shares when the
existing 2,720,000 shares of Keo constitutes 51% of such
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total. This notional denominator of 5,551,020 does not and is not intended to
include shares issuable under the Stock Option Plan.
SECTION 1.3 Issuance of Shares.
(a) As soon as practicable from the date hereof, Keo shall cause to be
issued and delivered to Comsa or its designees, stock certificates evidencing
ownership of the New Shares.
(b) The New Shares to be issued hereunder are deemed "restricted
securities" as defined by Rule 144 promulgated by the U.S. Securities and
Exchange Commission (the "Commission") under the U.S. Securities Act of 1933, as
amended (the "Securities Act"), and the recipients shall represent that they are
acquiring the New Shares for investment purposes only and without the intent to
make a further distribution of the New Shares. All New Shares to be issued under
the terms of this Agreement shall be issued pursuant to exemptions from the
registration requirements of the Securities Act and the rules and regulations
promulgated thereunder. Certificates representing the restricted New Shares
shall bear the following, or similar legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE OFFERED FOR SALE,
SOLD OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE REGISTRATION
PROVISIONS OF SUCH ACT OR PURSUANT TO AN EXEMPTION FROM SUCH REGISTRATION
PROVISIONS, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE
SATISFACTION OF THE COMPANY.
THESE SHARES ARE ALSO SUBJECT TO THE TERMS OF A SHAREHOLDERS AND VOTING
AGREEMENT WHICH LIMIT THEIR VOTING POWER.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF KEO AND ACQUISITION
As an inducement for Comsa and the Comsa Shareholder to enter into this
Agreement, Keo and Acquisition hereby makes jointly and severally, as of the
date hereof and as of the Closing Date, the following representations and
warranties to Comsa and the Comsa Shareholder:
SECTION 2.1 Organization of Keo and Acquisition.. Each of Keo and
Acquisition is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware, is duly qualified and in good
standing as a foreign corporation in every jurisdiction in which such
qualification is necessary, and has the corporate power and authority to own its
properties and assets and to transact the business in which it is engaged. With
the exception of Acquisition, there are no corporations or other entities with
respect to which (i) Keo owns any of the outstanding stock or other interests,
or (ii) Keo may be deemed to be in control. There are no corporations or other
entities with respect to which (i) Acquisition owns any of the outstanding stock
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or other interests, or (ii) Acquisition may be deemed to be in control. Keo and
Acquisition have all requisite corporate power and authority to execute and
deliver this Agreement, the Ancillary Agreements (as defined below) and to
consummate the transactions contemplated hereby and thereby, and have taken all
corporate or other action necessary to consummate the transactions contemplated
hereby and thereby and to perform their respective obligations hereunder and
thereunder. This Agreement, upon its execution and delivery, is the legal, valid
and binding obligation of Keo and Acquisition, enforceable against Keo and
Acquisition in accordance with its terms, and each of the Ancillary Agreements,
upon its execution and delivery, is the legal, valid and binding obligation of
Keo in accordance with its terms, except to the extent that such enforcement may
be limited by applicable bankruptcy, insolvency and other similar laws affecting
creditors' rights generally.
SECTION 2.2 Capitalization of Keo and Acquisition. (a) The authorized
capital stock of Keo consists of Twenty Five million (25,000,000) shares of
common stock, par value $0.001 per share (the "Common Stock"), of which Two
Million, Seven Hundred Twenty Thousand (2,720,000) shares of Common Stock are
issued and outstanding, and five million (5,000,000) shares of preferred stock,
par value $0.001 per share, with such rights, privileges, preferences and other
terms and conditions as shall be approved by its Board of Directors pursuant to
a duly adopted resolution thereof, of which no shares are issued and
outstanding. All shares of Common Stock currently issued and outstanding have
been duly authorized and validly issued and are fully paid and non-assessable,
and have been issued in compliance with any and all applicable federal and state
laws or pursuant to appropriate exemptions therefrom. There are no options,
warrants, rights, calls, commitments or agreements of any character obligating
Keo to issue any shares of its capital stock or other securities or any security
representing the right to purchase or otherwise receive any such stock or other
securities. The New Shares, when issued, will be duly authorized, validly
issued, fully paid and non-assessable.
(b) To the best knowledge of Keo and Acquisition, Schedule 2.2(a)
sets forth the name of each holder of shares of Common Stock, as well as the
number of shares of Common Stock held by each such holder.
(c) Other than the transactions contemplated by this Agreement,
there is no outstanding vote, plan, pending proposal or right of any person to
cause any redemption of Common Stock or the merger or consolidation of Keo with
or into any other entity. Keo is not under any obligation under any agreement to
register any of its securities under federal or state securities laws.
(d) To the best knowledge of Keo and Acquisition, there are no
agreements among shareholders of Keo, or otherwise, voting trusts, proxies or
other agreements or understanding of any character, whether written or oral,
with respect to or concerning the purchase, sale, transfer or voting of the
Common Stock or any other security of Keo, other than the Voting Trust Agreement
entered into pursuant to the Stock Purchase and Exchange Agreement.
(e) None of Keo and Acquisition has any legal obligations, absolute
or contingent, to any other person to sell the assets or to sell any capital
stock or any other security of Keo or any of its subsidiaries or to effect any
merger, consolidation or other reorganization of Keo
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or any of its subsidiaries or to enter into any agreement with respect thereto,
except pursuant to the Stock Purchase and Exchange Agreement
(f) (i) Acquisition, a Delaware corporation, is the only subsidiary
of Keo, and Acquisition is a corporation duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation.
(ii) There are two hundred (200) shares of common stock, with
a par value of $0.001 per share (the "Acquisition Stock"), of Acquisition
authorized, which are all outstanding and held by Keo. The Acquisition Stock was
validly issued, fully paid and non-assessable and not subject to any preemptive
rights created by statute, Acquisition's Certificate of Incorporation or By-Laws
or any contract. There is no outstanding vote, plan, pending proposal or right
of any person to cover any redemption of the Acquisition Stock for the merger or
consolidation of Acquisition with or into any other entity. Acquisition holds no
assets and conducts no business.
SECTION 2.3 Charter Documents. Certified copies of the Keo and Acquisition
Certificate of Incorporation and By-Laws, as amended to date, as have been or
will be delivered to Comsa prior to the Closing Date are true, correct and
complete copies thereof.
SECTION 2.4 Corporate Documents. The Keo shareholders' list as set forth
on Schedule 2.2(a) and corporate minute books are complete and accurate in all
material respects and the corporate minute books contain the recorded minutes of
all corporate meetings or the written consents of shareholders and directors.
SECTION 2.5 Financial Statements. Keo's unaudited financial statements
(the "Keo Financial Statements") for the period ended June 30, 1999, copies of
which have been delivered to Comsa, are true and complete in all material
respects, having been prepared by management and present without material
misstatement the financial condition of Keo and its subsidiaries, on a
consolidated basis, and results of its operations for the periods covered
thereby. Neither Keo nor any of its subsidiaries has engaged in any transaction,
maintained any bank account or used any corporate funds except for transactions
bank accounts or funds which have been and are reflected in the normally
maintained books and records. Except as set forth herein, there has been no
material adverse change in the business operations, assets, properties,
prospects or condition (financial or otherwise) of Keo taken as a whole (a
"Material Adverse Effect") from that reflected in the financial statements
referred to in this Section 2.5.
SECTION 2.6 Absence of Certain Changes or Events. Since June 30, 1999, and
except as disclosed otherwise herein, Keo has not (i) issued or sold any
promissory note, stock, bond, option or other security of which it was an issuer
or other obligor, (ii) discharged or satisfied any lien or encumbrance or paid
any obligation or liability, absolute or contingent, direct or indirect, (iii)
incurred or suffered to be incurred any liability or obligation whatsoever, (iv)
cause or permitted any lien, encumbrance or security interest to be created or
arise on or in any of its properties or assets, (v) declared or made any
dividend, payment or distribution to shareholders or purchased or redeemed or
agreed to purchase or redeem any shares of its capital stock, (vi) reclassified
its shares of capital stock, (vii) amended its Certificate of Incorporation or
By-Laws, (viii) acquired any equity interest
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in any other person, or (ix) entered into any agreement or transaction except in
connection with the execution and performance of this Agreement. Except for the
Stock Purchase and Exchange Agreement, neither Keo nor Acquisition has entered
into any Agreement to do any of the foregoing actions described in this Section
2.6.
SECTION 2.7 Assets and Liabilities. (a) Keo has good and marketable title
to all of its assets and property, free and clear of any and all liens, claims
and encumbrances. As of the date hereof, Keo does not have any debts,
liabilities or obligations of any nature, whether accrued, absolute, contingent,
or otherwise, whether due or to become due, that are not fully reflected in the
Keo Financial Statements.
(b) Acquisition has no assets and no liabilities.
SECTION 2.8 Tax Returns and Payments. (a) All of Keo's tax returns
(federal, state, city, county or foreign) which are required by law to be filed
on or before the date of this Agreement, have been duly filed and are complete
and accurate in all material respects. Keo has paid all taxes due on said
returns, any assessments made against Keo and all other taxes, fees and similar
charges imposed on Keo by any governmental authority (other than those, the
amount or validity of which is being contested in good faith by appropriate
proceedings). No tax liens have been filed and no claims are being assessed with
respect to any such taxes, fees or other similar charges. Keo and Acquisition
know of (i) no other tax returns or reports which are required to be filed which
have not been so filed and (ii) no unpaid assessment for additional taxes for
any fiscal period or any basis thereof.
(b) Acquisition, which was incorporated on September 29, 1999 has
not filed, and has not yet been required to file, any tax return.
SECTION 2.9 Required Authorizations. There have been or will be timely
filed, given, obtained or taken, all applications, notices, consents, approvals,
orders, registrations, qualifications waivers or other actions of any kind
required by virtue of execution and delivery of this Agreement by Keo or the
consummation by it of the transactions contemplated hereby. Prior to the
Closing, a majority of the shareholders of Keo and Acquisition shall have
approved this Agreement and the transactions contemplated hereunder and required
corporate filings, if any, shall have been made with the State of Delaware.
SECTION 2.10 Compliance with Law and Government Regulations. Keo and
Acquisition are in compliance with and are not in violation of, applicable
federal, state, local or foreign statutes, laws and regulations (including
without limitation, any applicable building, zoning or other law, ordinance or
regulation) affecting Keo, Acquisition, or either of their respective properties
or the operation of their respective businesses, except where failure to be in
compliance would not result in a Material Adverse Effect. To the best knowledge
of Keo and Acquisition, Keo and Acquisition are not subject to any order,
decree, judgment or other sanction of any court, administrative agency or other
tribunal.
SECTION 2.11 Litigation. There is no litigation, arbitration, proceeding
or
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investigation pending, or to the best knowledge of Keo and Acquisition,
threatened or anticipated, to which Keo or Acquisition is a party or which may
result in a Material Adverse Effect, or which might result in any liability on
the part of Keo or Acquisition, or which questions the validity of this
Agreement or of any action taken or to be taken pursuant to or in connection
with the provisions of this Agreement, and to the best knowledge of Keo and
Acquisition, there is no basis for any such litigation, arbitration, proceeding
or investigation. To the best knowledge of Keo and Acquisition, there are
presently no outstanding judgments, decrees or orders of any court or any
governmental or administrative agency against or affecting Keo or Acquisition or
any of either of their assets that is not disclosed herein.
SECTION 2.12 Trade Names and Rights. Keo does not use any trade xxxx,
service xxxx, trade name, or copyright in its business, nor does it own any
trade marks, trade xxxx registrations or applications, trade names, service
marks, copyrights, copyright registrations or applications. To the knowledge of
Keo and Acquisition, no person owns any trademark, trade xxxx registration or
application, service xxxx, trade name, copyright or copyright registration or
application, the use of which is necessary or contemplated in connection with
the operation of Keo's business.
SECTION 2.13 Governmental Consent. No consent, approval, authorization or
order of, or registration, qualification, designation, declaration or filing
with, any governmental authority on the part of Keo or Acquisition is required
in connection with the execution and delivery of this Agreement or the Ancillary
Agreements or the carrying out of any transactions contemplated hereby or
thereby.
SECTION 2.14 No Disqualifying Orders. Neither Keo or Acquisition nor any
of their respective affiliates, directors, officers or principals is subject to
any disqualifying order under the "Bad Boy" provisions of the federal or any
state securities law. As used herein, "Bad Boy" provisions include Rule 262 of
Regulation A, Rule 507 of Regulation D and other similar disqualifying
provisions of federal and state securities laws.
SECTION 2.15 No Conflict or Violation: Consent. None of the execution,
delivery or performance of this Agreement, the Ancillary Agreements, the
consummation of the transactions contemplated hereby or thereby, nor compliance
by Keo, Acquisition or any Principal Stockholder with any of the provisions
hereof or thereof, will (a) violate or conflict with any provision of the
governing documents of Keo, any of its subsidiaries or any Principal
Stockholder, (b) violate, conflict with, or result in a breach of or constitute
a default (with or without notice of passage of time) under, or result in the
termination of, or accelerate the performance required by, or result in a right
to terminate, accelerate, modify or cancel under, or require a notice under, or
result in the creation of any encumbrance upon any of their respective assets
under, any contract, lease, sublease, license, sublicense, franchise, permit,
indenture, agreement or mortgage for borrowed money, instrument of indebtedness,
security interest or the arrangement to which Keo, any of its subsidiaries or
any Principal Stockholder is a party or by which Keo, any of its subsidiaries or
any Principal Stockholder is bound or to which any of their respective assets
are subject, (c) violate any applicable regulation or court order or (d) impose
any encumbrance on any of their respective assets. No notices to, declaration,
filing or registration with, approvals or consents of, or assignments by, any
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person (including any federal, state or local governmental or administrative
authorities) are necessary to be made or obtained by Keo, any of its
subsidiaries or any Principal Stockholder in connection with the execution,
delivery or performance of this Agreement or the consummation of the
transactions contemplated hereby.
SECTION 2.16 Full Disclosure. None of the representations and warranties
made by Keo, Acquisition or the Principal Stockholders herein, or in any
Ancillary Agreement, exhibit, certificate or memorandum furnished or to be
furnished by Keo, Acquisition or the Principal Stockholders on their behalf
pursuant hereto or thereto, contains or will contain any untrue statement of
material fact, or omits any material fact, the omission of which would be
misleading. The information with respect to Keo and Comsa which is to be
included in any information statement or proxy statement to be sent to the
shareholders of Keo will not contain any untrue statement of material fact, or
omit to state any material fact necessary to make the statement or fact
contained herein or therein not misleading.
SECTION 2.17 Brokerage. No broker, finder or investment banker is entitled
to any brokerage, finder's or other fee or commission in connection with the
Exchange or with this Agreement based upon arrangements made by or on behalf of
Keo or Acquisition.
SECTION 2.18 Transactions with Affiliates. No director or officer of Keo
or Acquisition or any member of his or her immediate family, is a party to any
contract or other business arrangement or relationship of any kind with Keo, has
an ownership interest in any business, corporate or otherwise, which is a party
to, or in any property which is the subject of, business arrangements or
relationships of any kind with Keo.
SECTION 2.19 Environmental Matters.
(i) Keo and Acquisition are in compliance in all material
respects with all Environmental Laws (as defined below).
(ii) Keo has no knowledge of an existing or potential
Environmental Claim (as defined below), nor has Keo or any Principal Stockholder
received any notification or has knowledge of alleged, actual or potential
responsibility for, or any inquiry or investigation regarding, any disposal,
release, or threatened release at any location of any Hazardous Substance (as
defined below) stored, generated or transported by Keo or Acquisition.
(iii) To the best knowledge of Keo and Acquisition, (A) no
underground tank or other underground storage receptacle for Hazardous Substance
has leaked from any underground tank or related piping at any time; and (B)
there have been no releases of Hazardous Substances by Keo on, upon or into any
properties of Keo, any of its subsidiaries or any of their respective
predecessors.
(iv) To the best knowledge of Keo and Acquisition, there has
never been any PCBs or asbestos located at or on any owned or leased property by
Keo, any of its subsidiaries, or any of their respective predecessors.
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(v) No environmental lien has ever been attached to any real
property owned or leased by Keo, any of its subsidiaries or any of their
respective predecessors.
(vi) Definitions. For purposes of this Agreement,
"Environmental Laws" shall mean all federal, state, district, local and foreign
laws, all rules or regulations promulgated thereunder, and all orders, consent
orders, judgments, notices, permits, or demand letters issued, promulgated, or
entered pursuant thereto, relating to pollution or protection of the environment
(including without limitation ambient air, surface water, ground water, land
surface, or subsurface strata), including without limitation (x) laws relating
to emissions, discharges, releases or threatened releases, or threatened
releases of pollutants, contaminants, chemicals, materials, wastes or other
substances into the environment and (y) laws relating to the identification,
generation, manufacture, processing, distribution, use, treatment, storage,
disposal, recovery, transport or other handling of pollutants, contaminants,
chemicals, industrial materials, wastes or other substances.
For purposes of this Agreement, "Environmental Claims" shall mean all
accusations, allegations, notice of violations, liens, claims, demands, suits or
causes of action or any damage, including without limitation, personal injury,
property damage (including any depreciation of property values), lost use of
property, or consequential damages, arising directly or indirectly out of
Environmental Conditions or Environmental Laws.
For purposes of this Agreement, "Environmental Conditions" shall mean the state
of environment, including natural resources (e.g. flora and fauna), soil,
surface water, ground water, any present or potential drinking water supply,
subsurface strata, or ambient air, relating to or arising out of the use,
handling, storage, treatment, recycling, generation, transportation, release,
spilling, leaking, pumping, pouring, emptying, discharging, injection, escaping,
leaching, disposal, dumping, or threatened release of Hazardous Substances by
Keo, any of its subsidiaries or any of their respective predecessors or such
predecessors in interest, agents, representatives, employees, or independent
contractors.
For purposes of this Agreement, "Hazardous Substances" shall mean all
pollutants, contaminants, chemicals, wastes, and any other carcinogenic,
ignitable, corrosive, reactive, toxic, or otherwise hazardous substances or
materials (whether solids, liquids or gases), including but not limited to any
substances, materials, or wastes subject to regulation, control, or remediation
under Environmental Laws.
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ARTICLE III
[RESERVED]
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF COMSA AND THE COMSA SHAREHOLDER
Comsa and the Comsa Shareholder hereby represent, warrant and agree that:
SECTION 4.1 Organization of Comsa. Comsa is a societe anonyme duly
organized, validly existing and in good standing under the laws of France, is
duly qualified or will become duly qualified and in good standing in every
jurisdiction in which such qualification is necessary for performance under, or
enforcement of, the Sales Agreements. There are no corporations or other
entities with respect to which (i) Comsa owns any of the outstanding stock or
other interests, or (ii) Comsa may be deemed to be in control except as
otherwise disclosed in Schedule 4.1 annexed hereto and by this reference made a
part hereof.
SECTION 4.2 Share Ownership. All of the 7,500 issued and outstanding
shares of capital stock of Comsa are owned by Valurex S.A., a Societe Anonyme
organized under the laws of Luxembourg. There are no options, warrants, rights,
calls, commitments or agreements of any character obligating Comsa to issue, now
or at any future time or upon any circumstance whether or not existing, any
units of ownership, shares or other equity interest, except as otherwise
disclosed in Schedule 4.2 annexed hereto.
SECTION 4.3 Charter Documents. Complete and correct copies of the charter
documents and By-Laws (Statuts) of Comsa and all amendments thereto, have been
or will be delivered to Keo prior to the Closing Date.
SECTION 4.4 Required Authorizations. There have been or will be timely
filed, given, obtained or taken, all applications, notices, consents, approvals,
orders, registrations, qualifications waivers or other actions of any kind
required by virtue of execution and delivery of this Agreement by Comsa or the
consummation by it of the transactions contemplated hereby and appropriate
corporate filings shall have been made including performance under the Sales
Agreements with appropriate governmental authorities of France, as required.
SECTION 4.5 Governmental Consent. No consent, approval, authorization or
order of, or registration, qualification, designation, declaration or filing
with, any governmental authority on the part of Comsa is required in connection
with the execution and delivery of this Agreement or the Ancillary Agreements or
the carrying out of any transactions contemplated hereby or thereby other than
filing the Agreement and a declaration of foreign ownership of Comsa with
appropriate governmental authorities of France.
SECTION 4.6 Authority. Comsa and the Comsa Shareholder have approved this
Agreement and duly authorized the execution hereof. Comsa has full power,
authority and legal right to enter into this Agreement and to consummate the
transactions contemplated hereby, and all
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corporate action necessary to authorize the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby has been
duly and validly taken. The execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby and compliance by Comsa
with the provisions hereof will not (a) conflict with or result in a breach of
any provisions of, or constitute a default (or an event which, with notice or
lapse of time or both, would constitute a default) under, or result in the
creation of any lien, security interest, charge or encumbrance upon any of the
properties or assets of Comsa under, any of the terms, conditions or provisions
of the Certificate of Incorporation, By Laws, or any other constituent document
of Comsa, or any note, bond, mortgage, indenture, license, agreement or any
instrument or obligation to which Comsa is a party or by which it is bound; or
(b) violate any order, writ, injunction, decree, statute, rule or regulation
applicable to Comsa or any of its properties or assets.
SECTION 4.7 Investment Purpose. Comsa has received or shall receive
representations from the Comsa Shareholder that the recipients of the restricted
Shares are acquiring the shares for investment purposes only and acknowledge
that the New Shares to be issued hereunder are "restricted securities" and may
not be sold, traded or otherwise transferred without registration under the U.S.
Securities Act of 1933, as amended or an applicable exemption therefrom.
SECTION 4.8 Nonexistence of Disqualifying Orders. Neither Comsa nor any of
its affiliates, directors, officers or principals is subject to any
disqualifying order under the "Bad Boy" provisions of the federal or any state
securities law which are defined in Section 2.14.
SECTION 4.9 Rights under the Contracts. Comsa is the owner of the rights
under the Contracts listed on Exhibit ("Contracts"), and has not assigned,
pledged, or otherwise transferred any of the rights to the benefits from the
Contracts, nor has delegated any of Comsa's dutiues under the Contracts. None of
the execution, delivery or performance of this Agreement or the Ancillary
Agreements, or consummation of the transactions contemplated hereby or thereby,
nor compliance by Comsa with any of the provisions hereof or thereof, will
violate, conflict with, or result in a breach of or constitute a default (with
or without notice of passage of time) under, or result in the termination of, or
accelerate the performance required by, or result in a right to terminate,
accelerate, modify or cancel under, or require a notice under, or result in the
creation of any encumbrance upon any of Comsa's rights under the Contracts. No
notices to, declaration, filing or registration with, approvals or consents of,
or assignments by, any person (including any federal, state or local
governmental or administrative authorities) are necessary to be made or obtained
by Comsa in connection with the conveyance of the rights under the Contracts and
the delegation of the duties under the Contracts.
SECTION 4.17 Full Disclosure. None of the representations and warranties
made by Comsa herein, or in any Ancillary Agreement, exhibit, certificate or
memorandum furnished or to be furnished by, on its behalf pursuant hereto or
thereto, contains or will contain any untrue statement of material fact, or
omits any material fact, the omission of which would be misleading.
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ARTICLE V
[RESERVED]
ARTICLE VI
ADDITIONAL AGREEMENTS
SECTION 6.1 Expenses. All costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby shall be paid by the
party incurring such expense except as provided for in Section 11.1 herein.
SECTION 6.2. Brokers and Finders. Each of the parties hereto represents,
as to itself, that no agent, broker, investment banker or firm or person is or
will be entitled to any broker's or finder's fee or any other commission or
similar fee in connection with any of the transactions contemplated by this
Agreement.
SECTION 6.3 Necessary Actions. Subject to the terms and conditions herein
provided, each of the parties hereto agrees to use all reasonable efforts to
take, or cause to be taken, all action, and to do or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this Agreement.
In the event at any time after the Closing Date, any further action is necessary
or desirable to carry out the purpose of this Agreement, the proper managers,
officers and/or directors of Keo, Acquisition or Comsa, as the case may be,
shall take all such necessary action.
SECTION 6.4 Indemnification.
(a) General.
(i) Keo and Acquisition shall, jointly and severally,
indemnify Comsa, and the Comsa Shareholder (collectively, the "Comsa Indemnified
Parties") against, and hold each of the Comsa Indemnified Parties harmless from
any damage, claim, loss, cost, liability or expense, including without
limitation, interest, penalties, reasonable attorneys' fees and expenses of
investigation, diminution of value, response action, removal action or remedial
action (collectively "Damages") incurred by any such Comsa Indemnified Party,
that are incident to, arise out of, in connection with, or related to, whether
directly or indirectly, the breach of any warranty, representation, covenant or
agreement of Keo or Acquisition contained in this Agreement, the Ancillary
Agreements or any schedule hereto or thereto or in any certificate or instrument
of conveyance (including, without limitation, any notice to be delivered to the
shareholders of Keo) delivered by or on behalf of Keo or Acquisition pursuant to
this Agreement, the Ancillary Agreements or in connection with the transactions
contemplated hereby or thereby.
(ii) Comsa and the Comsa Shareholder shall indemnify Keo and
Acquisition ("Keo Indemnified Parties"), against, and hold each of the Keo
Indemnified Parties harmless from, any Damages incurred by such Keo Indemnified
Party, that are incident to, arise out of, in connection with, or related to,
whether directly or indirectly, the breach of any warranty, representation,
covenant or agreement of Comsa and/or the Comsa Shareholder contained in this
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Agreement, the Ancillary Agreements, any schedule hereto or thereto or in any
certificate or instrument of conveyance delivered by or on behalf of Comsa
pursuant to this Agreement, the Ancillary Agreements or in connection with the
transactions contemplated hereby or thereto.
(iii) The term "Damages" as used in this Section 6.4 is not
limited to matters asserted by third parties against Comsa Indemnified Parties
or Keo Indemnified Parties, but includes Damages incurred or sustained by such
persons in the absence of third party claims.
(b) Procedure for Claims. If a claim for Damages (a "Claim') is to
be made by a person entitled to indemnification hereunder, the person claiming
such indemnification (the "Indemnified Party"), subject to clause (ii) below,
shall give written notice (a "Claim Notice") to the indemnifying person (the
"Indemnifying Party") as soon as practicable after the Indemnified Party becomes
aware of any fact, condition or event which may give rise to Damages for which
indemnification may be sought under this Section 6.4. The failure of any
Indemnified Party to give timely notice hereunder shall not affect rights to
indemnification hereunder, except and only to the extent that, the Indemnifying
Party demonstrates actual material damage caused by such failure. In the case of
a Claim involving the assertion of a claim by a third party (whether pursuant to
a lawsuit or other legal action or otherwise, a "Third-Party Claim"), if the
Indemnifying Party shall acknowledge in writing to the Indemnified Party that
the Indemnifying Party shall be obligated to indemnify the Indemnified Party
under the terms of its indemnity hereunder in connection with such Third-Party
Claim, then (A) the Indemnifying Party shall be entitled and, if it so elects,
shall be obligated at its own cost, risk and expense, (1) to take control of the
defense and investigation such Third-Party Claim and (2) to pursue the defense
thereof in good faith by appropriate actions or proceedings promptly taken or
instituted and diligently pursued, including, without limitation, to employ and
engage attorneys of its own choice reasonably acceptable to the Indemnified
Party to handle and defend the same, and (B) the Indemnifying Party shall be
entitled (but not obligated), if it so elects, to compromise or settle such
claim, which compromise or settlement shall be made only with the written
consent of the Indemnified Party, such consent not to be unreasonably withheld.
In the event the Indemnifying Party elects to assume control of the defense and
investigation of such lawsuit or other legal action in accordance with this
Section 6.4, the Indemnified Party may, at its own cost and expense, participate
in the investigation, trial and defense of such Third-Party Claim; provided
that, if the named persons to a lawsuit or other legal action include both the
Indemnifying Party and the Indemnified Party and the Indemnified Party has been
advised in writing by counsel that there may be one or more legal defenses
available to such Indemnified Party that are different from or additional to
those available to the Indemnifying Party, the Indemnified Party shall be
entitled, at the Indemnifying Party's cost, risk and expense, to separate
counsel of its own choosing. If the Indemnifying Party fails to assume the
defense of such Third-Party Claim in accordance with this Section 6.4 within 10
calendar days after receipt of the Claim Notice, the Indemnified Party against
which such Third-Party Claim has been asserted shall upon delivering notice to
such effect to the Indemnifying Party have the right to undertake, at the
Indemnifying Party's cost, risk and expense, the defense, compromise and
settlement of such Third-Party Claim on behalf of and for the account of the
Indemnifying Party; provided that such Third-Party Claim shall not be
compromised or settled without the written consent of the Indemnifying Party,
which consent shall not be unreasonably withheld. In the event the Indemnifying
Party assumes the defense of the claim, the Indemnifying Party shall keep the
Indemnified Party reasonably informed of the progress of any
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such defense, compromise or settlement, and in the event the Indemnified Party
assumes the defense of the claim, the Indemnified Party shall keep the
Indemnifying Party reasonably informed of the progress of any such defense,
compromise or settlement. The Indemnifying Party shall be liable for any
settlement of any Third-Party Claim effected pursuant to and in accordance with
this Section 6.4 and for any final judgment (subject to any right of appeal),
and the Indemnifying Party agrees to indemnify and hold harmless each
Indemnified Party from and against any and all Damages by reason of such
settlement or judgment.
(c) Specific Performance. Comsa and Keo shall be entitled to
specific performance and injunctive relief, without posting bond or other
security, for the purpose of asserting their respective rights under this
Section 6.4. The remedies described in this Section 6.4 shall be in addition to,
and not in lieu of, and any other remedies at law or in equity that the parties
may elect to pursue.
ARTICLE VII
[RESERVED]
ARTICLE VIII
[RESERVED]
ARTICLE IX
ANCILLARY AGREEMENTS
SECTION 9.1 Shareholders and Voting Agreement. Simultaneous with the
execution hereof, the Shareholders and Voting Agreement substantially in the
form of Exhibit 2 shall have been duly executed and delivered by each party
thereto.
SECTION 9.2 Indemnification Agreements. Keo shall have executed
indemnification agreements in favor of all directors of Keo (collectively, the
"Indemnification Agreements") execution and delivery of which is hereby
acknowledged..
SECTION 9.3 Management Agreement. Simultaneous with the execution hereof,
the Management Agreement substantially in the form of Exhibit 3 shall have been
duly executed and delivered by each party thereto.
SECTION 9.4 Ancillary Agreements. The Shareholders and Voting Agreement,
the Indemnification Agreements, and the Management Agreement are collectively
referred to herein as the Ancillary Agreements.
ARTICLE X
[RESERVED]
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ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Costs and Expenses. Each party hereto will bear its own
respective expenses.
SECTION 11.2 [Rerserved].
SECTION 11.3 Notices. Any notice to any party hereto pursuant to this
Agreement shall be in writing and given by Certified or Registered Mail, FedEx
or by facsimile, addressed as follows:
To Com S.A. or to the Comsa Shareholder:
00 Xxx xx Xxxxxxx
Xxxxx, Xxxxxx 75 008
Att.: Xx. Xxxxxx Xxxxxx
Keo International, Inc. and
Comsa Acquisition Corp.
c/x Xxxxxx Xxxxxxxxxx & Xxxxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Att.: Xxxx X. Xxxxxxxxxx, Esq.
Additional notices are to be given as to each party, at such other address
as should be designated in writing complying as to delivery with the terms of
this Section 11.3. All such notices shall be effective when sent, addressed as
aforesaid.
SECTION 11.4 Parties in Interest. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and the respective successors
and assigns. Nothing in this Agreement is intended to confer, expressly or by
implication, upon any other person any rights or remedies under or by reason of
this Agreement.
SECTION 11.5 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and together shall
constitute one document. The delivery by facsimile of an executed counterpart of
this Agreement shall be deemed to be an original and shall have the full force
and effect of an original executed copy.
SECTION 11.6 Severability. The parties hereto agree and affirm if any part
of this Agreement is deemed to be unenforceable, the remainder of the Agreement
shall remain in full force and effect.
SECTION 11.7 Headings and Schedules. The "Article" and "Section" headings
are provided herein for convenience of reference only and do not constitute a
part of this Agreement. The Schedules, on the other hand, are hereby expressly
incorporated into this Agreement.
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SECTION 11.8 Survival of Representations and Warranties. All terms,
conditions, representations and warranties set forth in this Agreement or in any
instrument, certificate, opinion, or other writing providing for in it, shall
survive the closing for a period of eighteen months regardless of any
investigation made by or on behalf of any of the parties hereto, or whether made
before or after the closing.
SECTION 11.9 Assignability. This Agreement shall not be assigned by any of
the parties hereto without the prior written consent of the other parties.
SECTION 11.10 Amendment. This Agreement may be amended with the consent of
Keo, Acquisition, Comsa and the Comsa Shareholder only by an instrument, in
writing, signed on behalf of each of the parties hereto.
SECTION 11.11 Choice of Law. This Agreement shall be construed,
interpreted and the rights of the parties determined in accordance with the laws
of the State of New York without consideration of principles of conflicts of
laws, except with respect to matters of law concerning the internal corporate
affairs of any corporate entity, or societe anonyme party hereunder as to which
the law of the jurisdiction under which the respective entity derives its powers
shall govern.
SECTION 11.12 Publicity. Except as required by law or on advice of
counsel, no party shall issue any press release or make any public statement
regarding the transactions contemplated hereby without the prior approval of the
other parties, and the parties hereto shall issue a mutually acceptable press
release as soon as practicable after the date hereof and after the closing.
SECTION 11.13 No Third Party Beneficiaries. This Agreement shall be
binding upon and inure solely to the benefit of each party hereto, and nothing
in this Agreement, express or implied, is intended to or shall confer upon any
other person any right, benefit or remedy of any nature whatsoever under or by
reason of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement in a manner legally binding upon them as of the date first above
written.
KEO INTERNATIONAL, INC.
By: /s/ XXXXXXX XXXXXXX
--------------------
Xxxxxxx Xxxxxxx, Vice President
COM S.A.
By: /s/ XXXXXXXX XXXXXX
--------------------------
Xxxxxxxx Xxxxxx, President
COMSA ACQUISITION CORP.
By: /s/ XXXXXXX XXXXXXX
--------------------------
Xxxxxxx Xxxxxxx, President
THE COMSA SHAREHOLDER: Attest:
Valurex S.A., a societe anonyme organized under the laws of Luxembourg
By: /s/ XXXX XXXXXX XXXXXXXX
--------------------------
Name: Xxxx Xxxxxx Xxxxxxxx
Title:
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[Schedules and Exhibits Omitted]
