EQUITY PURCHASE AGREEMENT
Exhibit 10.1
This
EQUITY PURCHASE AGREEMENT (the “Agreement”) is
made and entered into as of October 25, 2018, by and among DSS Asia
Limited, a corporation existing and registered in Hong Kong
(“Purchaser”),
Guangzhou Hotapps Technology Ltd., a corporation existing and
registered in China (“Target”), HotApps
International Pte Ltd., a corporation existing and registered in
Singapore, the sole-stockholder of Target (“Principal”),
and Xx. Xxxx Xxxx Xxx Xxxxxxx, in his capacity as representative of
the Principal (the “Representative”).
The Purchaser, Target, Principal and Representative are each
individually referred to herein as a “Party” and
collectively as the “Parties.”
RECITALS
A. The
Principal collectively owns all of the issued and outstanding
equity securities of Target (collectively, the “Interests”).
B. The
Principal desires to sell to Purchaser, and Purchaser desires to
purchase from the Principal, all of the Interests on the terms and
subject to the conditions set forth herein.
NOW,
THEREFORE, the Parties hereby agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
1.1
Definitions. Unless the
context otherwise requires, capitalized terms used in this
Agreement have the meanings ascribed to such terms in Exhibit A attached hereto,
which is incorporated herein and made a part hereof.
1.2 Rules of
Construction. This Agreement is
the result of the joint efforts of Purchaser, Target and Principal,
and each of them and their respective counsel have reviewed this
Agreement and each provision hereof has been subject to the mutual
consultation, negotiation and agreement of the Parties, and the
language used in this Agreement will be deemed to be the language
chosen by the Parties to express their mutual intent, and therefore
there will be no construction against any Party based on any
presumption of that Party’s involvement in the drafting
thereof. Words of any gender include the other gender, as
appropriate. Whenever used herein, the words “include”,
“includes” and “including” mean
“include, without limitation”, “includes, without
limitation” and “including, without limitation”,
respectively. Terms defined in the singular have a comparable
meaning when used in the plural, and vice versa. The word
“or” is not exclusive. The word “days”
means calendar days unless otherwise specified. Except as otherwise
expressly provided herein all references to a specific time of day
refer to the specific time of day in the Eastern Time Zone of the
United States of America. The words “hereof”,
“herein” and “hereunder” and words of
similar import when used in this Agreement refer to this Agreement
as a whole (including any Schedules and Exhibits hereto) and not to
any particular provision of this Agreement, and all Article,
Section, Schedule and Exhibit references are to this Agreement
unless otherwise specified. Except as otherwise expressly provided
herein all references to “$” or “Dollars”
refer to the lawful money of the United States of America. Unless
the context otherwise requires any references in this Agreement
(but not in any Schedule to this Agreement, except to the extent
expressly set forth therein) to an agreement, instrument or other
document mean such agreement, instrument or other document as
amended, supplemented and modified from time to time to the extent
permitted by the provisions thereof and by this Agreement. Each
reference herein to any specific Governmental Entity shall include
any successor Governmental Entity. Each reference herein to a
statute or regulatory provision means such statute or regulatory
provision as amended from time to time and includes any successor
legislation or regulatory provision thereto, and in each case any
regulations promulgated thereunder. Each reference herein to
“written” or “in writing” includes in
electronic form.
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ARTICLE II
PURCHASE AND SALE OF INTERESTS; CLOSING
2.1 Purchase and Sale
of Interests. On the terms and
subject to the conditions of this Agreement, the Principal hereby
sells, transfers, conveys, assigns and delivers to Purchaser, and
Purchaser hereby purchases, acquires and accepts from such
Principal, all of the Interests owned by such Principal, free and
clear of all Liens.
(a) The aggregate
purchase price (the “Purchase
Price”) that the Purchaser shall pay to the Principal
for the Interests is:
(i) $100,000, in the
form of a two-year, interest free, demand promissory note in the
principal amount of $100,000 (the “Promissory
Note”) to be delivered to Principal at Closing in the
form attached hereto as Exhibit B.
2.3
Closing. The closing of
the sale of the Interests (the “Closing”) will
be held via the electronic transmittal of executed documents on the
date hereof or on such other date as Purchaser and the
Representative may mutually agree in writing, effective as of
[11:59 p.m.] on the Closing Date. The date on which the Closing
actually takes place and the Interests are transferred is referred
to herein as the “Closing
Date.”
2.4 Closing
Deliveries.
(a) At the Closing,
Target or the Principal, as applicable, will deliver, or cause to
be delivered, to Purchaser, the following:
(i) a closing statement
(the “Closing
Statement”) containing (1) the consolidated balance
sheet of Target as of 11:59 p.m. on the day prior to the Closing
Date (without giving effect to any of the Transactions), (2)
Target’s Net Working Capital, (3) Target Cash, and (4)
Transaction Expenses;
(ii) a certificate of
good standing for Target issued by Target’s legal
jurisidiction of formation and place of principal operation, and a
certificate of compliance pertaining to any Permits held by Target,
each to be dated within three (3) Business Days prior to the
Closing Date;
(iii) a certificate,
validly executed by an authorized officer of Target, certifying
that (A) the resolutions, as attached to such certificate,
were duly adopted by the board of directors and Principal of
Target, as applicable, authorizing and approving the execution of
this Agreement and the consummation of the Transactions, and that
such resolutions remain in full force and effect, (B) the
Charter Documents attached to such certificate are true and
correct, and include all amendments thereto, (C) Target has not
experienced a Material Adverse Effect since its organization or
formation, (D) the representations and warranties of Target in this
Agreement are true and correct as of the Closing Date, (E) all
actions and obligations to be performed by Target under this
Agreement have been performed as of the Closing Date, and (F) the
Disclosure Schedule is true and accurate as of the Closing
Date;
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(iv) copies reasonably
acceptable to Purchaser of all consents, approvals and notices
required to be obtained or made to consummate the
Transactions;
(v) payoff letters or
final invoices in a form reasonably acceptable to Purchaser from
each of the parties to which any of the Transaction Expenses are
payable;
(vi) executed documents
reasonably acceptable to Purchaser to allow Target, effective as of
the Closing, to transfer all Target bank account authorizations to
representatives designated by Purchaser;
(vii) the minute books
and all other books and records of Target and any of its
Subsidiaries; and
(viii) all other
certificates, instruments and other documents reasonably requested
by Purchaser to complete the Transactions.
(b) At the Closing,
Purchaser will deliver, or cause to be delivered, to the Principal,
the following:
(i) the executed
Promissory Note; and
(ii) all other
certificates, instruments and other documents reasonably requested
by the Representative to complete the Transactions.
ARTICLE III
Target
and Principal hereby jointly and severally represent and warrant to
Purchaser, as of the date hereof and as of the Closing Date, as
follows:
(a).
(a) Target is a
corporation duly organized, validly existing and in good standing
under the laws of China. Target is duly qualified, licensed or
registered to do business and is in good standing in each
jurisdiction in which the character of its properties owned,
operated or leased, or the nature of its business conducted, make
such qualification, license or registration necessary. Target has
the requisite corporate power and Permits to own, lease and operate
its properties and to carry on its business as currently conducted.
Target has delivered to Purchaser a true and correct copy of
Target’s [articles of incorporation and bylaws]
(collectively, the “Target Charter
Documents”), each as amended to date, and such Charter
Documents are in full force and effect. Target is not in violation
of any of the provisions of the Charter Documents. Section 3.1 of the Disclosure Schedule
lists the directors and officers of Target.
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3.2 Capitalization
(a).
(a) The authorized and
the issued capital of Target consists of SGD 3,000,000 and SGD
2,686,500, respectively, which constitutes all of the equity
ownership that has been issued by Target (the “Target
Shares”), which constitute the Interests. The
Interests are set forth in Section 3.2(a) of the
Disclosure Schedule. The Interests have been validly issued, are
fully paid and nonassessable and are owned of record and
beneficially by the Principal.
(b) Except for the
Interests, there are no other authorized or issued and outstanding
equity securities of Target of any kind, class or character. There
are no outstanding subscriptions, options, warrants, or other
agreements or commitments obligating Target to issue any additional
equity interests or any options or rights with respect thereto, or
any securities convertible into any equity or other ownership
interets. None of the Interests have been issued in violation of,
or are subject to, any preemptive or subscription rights. The
consummation of the transactions contemplated hereby shall convey
to Purchaser good and valid title to the Interests, free and clear
of all Liens. There are no outstanding or authorized share
appreciation, share unit, phantom stock or profit participation
rights or other similar rights, written or oral, with respect to
Target. The Interests will be offered, sold and delivered by Target
to Purchaser in compliance with all applicable securities Laws.
Target has not repurchased any of its capital stock except in
compliance with all applicable Laws and any agreements applicable
thereto. There are no declared or accrued but unpaid distributions,
dividends or similar payments with respect to the Interests. There
are no voting trusts, proxies, or other agreements or
understandings with respect to Target or Principal or the
Interests.
3.3 Subsidiaries
(a). Target does
not have, and has never had, any Subsidiary. The Principal is the
registered holder and beneficial owner of all of the issued equity
ownership of Target. Target (a) has not agreed and is not obligated
to make and is not bound by any Contract under which it is or may
become obligated to make any future investment in, or capital
contribution to, any other Person, and (b) does not, directly or
indirectly, own any equity or similar interest in or any interest
convertible, exchangeable or exercisable for, any equity or similar
interest in, any Person.
(a). Target has
all requisite legal and corporate power and all other necessary
authority to enter into this Agreement and to consummate the
transactions contemplated hereby (the “Transactions”).
The execution and delivery of this Agreement and the consummation
of the Transactions have been duly authorized by all necessary
action on the part of Target, and no further action is required.
This Agreement has been duly executed and delivered by Target, and,
assuming the due authorization, execution and delivery by the other
parties hereto and thereto, constitutes the valid and binding
obligations of Target, enforceable against each entity in
accordance with its terms, except as such enforceability may be
subject to laws of general application relating to bankruptcy,
insolvency and the relief of debtors and rules of law governing
specific performance, injunctive relief or other equitable
remedies.
3.5 No
Conflict
(a). The
execution and delivery by Target of this Agreement and the
consummation of the Transactions will not (with or without notice
or lapse of time, or both): (a) contravene or result in any
violation of any provision of the Charter Documents;
(b) result in a material breach of, constitute a material
default under, result in the acceleration of any material
obligation under, create in any party the right to accelerate,
terminate, modify, or cancel, or require any notice or consent
under any material Contract to which Target is a party or by which
Target is bound or to which any of its assets is subject (or result
in the imposition of any Lien upon any such assets); (c) result in
any material violation of any Law to which Target is subject or (d)
require the consent, authorization or approval of, or require any
notification to, any Person.
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(a). No consent,
waiver, approval, order or authorization of, or registration,
declaration or filing with, any court, administrative agency or
commission or other federal, state, county, local or foreign
governmental authority, instrumentality, agency or commission
(each, a “Governmental
Entity”) is required by or with respect to Target in
connection with the execution and delivery of this Agreement or the
consummation of the Transactions.
(a).
Section
3.7 of the
Disclosure Schedule sets forth a true, correct and complete copy of
the financial statements of Target as of and for the year ended
December 31, 2017 and the nine months ended September 30, 2018,
consisting of a consolidated balance sheet, an income statement,
and a statement of cash flows (the “Financial
Statements”).
3.8 Liabilities
(a).
(a)
Target has no Liability, except Liabilities that (i) have been
reflected in the Financial Statements, (ii) have arisen in the
Ordinary Course of Business since the date of the Financial
Statements, or (iii) are executory obligations arising in the
Ordinary Course of Business under any Contracts (and not as a
result of any breach thereof).
(b) Target has no
Indebtedness.
(a). Except as
set forth in Section 3.9 of the Disclosure Schedule,
since June 30, 2018, Target has conducted its business and
operations in the Ordinary Course of Business and there has not
been any:
(a) capital expenditure
or commitment;
(b) payment, discharge
or satisfaction, in any amount of any claim or Liability, other
than payment, discharge or satisfaction of claims and Liabilities
in the Ordinary Course of Business or of Liabilities reflected or
reserved against in the Financial Statements;
(c) destruction of,
damage to, or loss of any assets of Target (whether tangible or
intangible), whether or not covered by insurance;
(d) change in
accounting methods or practices by Target;
(e) change in any
election in respect of Taxes, adoption or change in any accounting
method in respect of Taxes, agreement or settlement of any claim or
assessment in respect of Taxes, or extension or waiver of the
limitation period applicable to any claim or assessment in respect
of Taxes;
(f) declaration,
setting aside or payment of a distribution, dividend or other
payment (whether in cash, membership interest, stock or property)
in respect of any equity ownership of Target, or any split,
combination or reclassification in respect of any equity ownership
of Target;
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(g) increase in the
base salary or other compensation payable or to become payable by
Target to any Company Personnel, or the declaration, payment,
commitment or obligation of any kind for the payment by Target of a
severance payment, termination payment, bonus or other additional
salary or compensation to any such Person, or changes to any
benefit program of any type, or any changes in incentive
compensation;
(h) termination,
extension, material amendment or modification of the terms of any
material Contract to which Target is a party or by which it or any
of either of their assets are bound;
(i) sale, lease,
license or other disposition of any of the material assets (whether
tangible or intangible) or material properties of Target taken as a
whole, including the sale of any accounts receivable of Target, or
any creation of any security interest in any such material assets
or material properties;
(j) (i) loan made by
Target to any Person that is outstanding as of the date hereof
(other than accounts receivable, deposits and prepaid expenses in
the Ordinary Course of Business, including advances to Company
Personnel for travel and business expenses in the Ordinary Course
of Business), (ii) incurrence by Target of any Indebtedness, (iii)
guarantee by Target of any Indebtedness, (iv) issuance or sale of
any debt securities of Target or (v) guarantee of any Indebtedness
of others;
(k) grant of any waiver
or release by Target of any right or claim material to Target,
including any write-off or other compromise of any account
receivable of Target;
(l) acceleration of the
collection of or application of any discount to any accounts
receivable of Target or delay of the payment of any accounts
payable or deferment of any expenses of Target;
(m) commencement,
settlement, notice or, to the Knowledge of Target, threat, of any
claim, lawsuit or proceeding or other investigation against
Target;
(n) any event or
condition that has had or is reasonably likely to have a Material
Adverse Effect; or
(o) agreement by
Target, or any officer, Employee or director on behalf of Target,
to do any of the things described in the preceding clauses (a)
through (n) of this Section 3.9.
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3.10 Tax
Matters
(a).
(a) Target has
prepared and timely filed all returns, declarations, estimates,
claims for refunds, information statements and reports, including
schedules or attachments thereto and any amendment thereof,
relating to any and all Taxes concerning or attributable to Target
or its operations or otherwise required by Law (each a
“Tax
Return”), and such Tax Returns are true and correct
and have been completed in accordance with applicable
Law.
(b) Target has duly and
timely paid all Taxes due and owing (whether or not shown on a Tax
Return) that it is required to pay. Target has withheld with
respect to Company Personnel, contractors, principals,
shareholders, owners, creditors, customers, and other Persons;
timely paid over to the appropriate Tax authority all Taxes
required to be withheld and paid over; and complied with all
information reporting and backup withholding provisions of
applicable Law. Target is not and has not been delinquent in the
payment of any Tax, nor is there any Tax deficiency outstanding,
assessed or proposed against Target, nor has Target executed any
waiver of any statute of limitations on or extending the period for
the assessment or collection of any Tax.
(c) No audit or other
examination of Target in respect of Taxes is presently in progress,
nor has Target been notified by any Tax authority (orally or in
writing, formally or informally) of any intent or plan to request
or initiate such an audit or other examination. No adjustment
relating to any Tax Return filed by Target has been proposed by any
Tax authority. No claim has ever been made by a Governmental Entity
in a jurisdiction where Target does not currently file a particular
type of Tax Return or pay a particular type of Tax that Target is
or may be required to file such Tax Return or pay such Tax
(including obligations to withhold amounts with respect to Tax) in
that jurisdiction.
(d) Target has
delivered to Purchaser or its legal counsel copies of all foreign,
federal, state and local income and all state and local sales and
use and/or value added Tax Returns for Target filed for all periods
since January 1, 2017, together with all related workpapers and
analysis created by or on behalf of Target.
(e) There are (and,
immediately following the Closing Date, there will be) no Liens on
the assets of Target relating to or attributable to Taxes other
than statutory Liens for Taxes not yet due and payable. There is no
basis for the assertion of any claim relating or attributable to
Taxes, which, if adversely determined, would result in any Lien on
the assets of Target.
(f) Target is and has
at all times been resident for Tax purposes in China and is not and
has not at any time been treated as a resident in any other country
or jurisdiction outside of China for any Tax purpose (including any
double taxation arrangement). Target is not subject to and no Tax
authority has made a claim that Target is subject to, Tax in any
jurisdiction other than China and the soverign urisdiction of
China.
(a) Target has not made
any tax classification election for United States federal income
Tax purposes or, if applicable, any similar state or foreign
Laws.
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3.11 Real and Personal
Property
(a) Target does not
own any fee interest in any real property. Section 3.11(a) of the Disclosure
Schedule sets forth a correct and complete list of all real
property currently leased by Target or otherwise currently used or
occupied by Target (the “Leased Real
Property”). Section 3.11(a) of the Disclosure
Schedule lists all leases, lease guaranties, subleases, agreements
for the leasing, use or occupancy of, or otherwise granting a right
in or relating to the Leased Real Property, including all
amendments, terminations and modifications thereof (the
“Lease
Agreements”), and there are no other Lease Agreements
affecting the real property used by Target or to which Target is
bound. Target has provided Purchaser with correct and complete
copies of each Lease Agreement. Target has not received any notice
of a default, alleged failure to perform, or any offset or
counterclaim with respect to any Lease Agreement, which has not
been fully remedied and withdrawn. The Leased Real Property is in
good operating condition and repair, free from structural, physical
and mechanical defects and has been maintained in accordance with
applicable Law. As of the Closing, all Lease Agreements may be
terminated by Target, in accordance with their respective terms
without Liability.
(b) Target has good and
valid title to, or, in the case of leased properties and assets,
valid leasehold interests in, all of its tangible properties and
assets, real, personal and mixed, used or held for use in its
business, free and clear of any judgments or Liens. The tangible
properties and assets of Target are (i) in good operating condition
and properly maintained, subject to normal wear and tear, and (ii)
sufficient for the conduct of the Business. The assets of Target
constitute (x) all of the assets necessary for the operation of the
Business and (y) all of the assets currently used in the
Business.
(a).
(a) Section 3.12 of the Disclosure Schedule
sets forth a correct and complete list of all of the following
Contracts to which Target is a party or by which Target or its
assets or properties are bound (collectively, the
“Material
Contracts”):
(i) Contracts with any
current or former owner, officer, director, member, representative
or Affiliate of Target or any Company Personnel;
(ii) Contracts related
to the sale or disposition of any of the assets of Target other
than in the Ordinary Course of Business;
(iii) Contracts
containing change of control or similar provisions or providing for
severance, notice of termination, termination pay, retention,
change in control or other similar payments;
(iv) Contracts for joint
ventures, strategic alliances, partnerships, licensing
arrangements, or sharing of profits or proprietary
information;
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(v) Contracts
containing covenants of Target not to compete in any line of
business or with any Person in any geographical area or not to
solicit or hire any person with respect to employment;
(vi) Contracts
containing any most-favored nations undertakings, rights of first
refusal, price protection mechanisms or any other similar
provisions restricting the business of Target;
(vii) Contracts relating
to the acquisition (by merger, purchase of stock or assets or
otherwise) by Target of any operating business or material assets
or the equity of any other Person;
(viii) Contracts relating
to the incurrence, assumption or guarantee of any Indebtedness or
imposing a Lien on any of the assets of Target, including
indentures, guarantees, loan or credit agreements, sale and
leaseback agreements, purchase money obligations incurred in
connection with the acquisition of property, mortgages, pledge
agreements, security agreements, or conditional sale or title
retention agreements;
(ix) Contracts
obligating Target to purchase, sell or provide a stated portion of
its requirements or outputs;
(x) Contracts for the
employment of any individual on a full-time, part-time or
consulting or other basis;
(xi) Contracts with
independent contractors or consultants (or similar arrangements)
that are not cancelable without penalty or further payment and
without more than 30 days’ notice;
(xii) Contracts providing
for indemnification, direct or indirect, by Target;
(xiii) Contracts that
require performance by any party more than six (6) months from the
date hereof and that are not cancelable without penalty or further
payment and without more than thirty (30) days’
notice;
(xiv) Contracts or plans
regarding rights to or the issuance of equity of Target or any
other profit sharing plan, including any stock option plan, stock
appreciation rights plan, phantom stock plan or stock purchase
plan;
(xv) the Lease
Agreements;
(xvi) Contracts with any
Governmental Entity;
(xvii) Contracts related
to the compromise or settlement of any litigation or arbitration or
other proceeding;
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(xviii) Contracts with any
labor union or any collective bargaining agreement;
(xix) Contracts involving
any outstanding powers of attorney executed by or on behalf of
Target;
(xx) any other Contracts
that involve $5,000 individually or $20,000 in the aggregate or
more and are not cancelable without penalty within thirty (30)
days;
(xxi) any other Contracts
that involve (i) minimum purchase commitments by Target, or (ii)
ongoing service or support obligations and is not cancelable
without penalty or refund within thirty (30) days; and
(xxii) any Contracts that
include any type of exclusive dealing arrangement.
(b) Target has not
materially breached, violated or defaulted under, or received
notice that it has materially breached, violated or defaulted
under, any of the terms or conditions of any Material Contract, nor
is Target aware of any event that would constitute such a breach,
violation or default with the lapse of time, giving of notice or
both. To the Knowledge of Target, no other party to any Material
Contract is in material default thereunder. Each Material Contract
is in full force and effect. The consummation of the Transactions
will neither violate nor result in the breach, modification,
cancellation, termination or suspension of any Material Contract.
The consummation of the Transactions will not require the consent
of any party to such Material Contracts. Following the Closing,
Purchaser and Target will all be permitted to exercise all of
Target’s rights under the Material Contracts to the same
extent Target would have been able to had the Transactions not
occurred and without being required to pay any additional amounts
or consideration other than fees, royalties or payments which
Target would otherwise be required to pay had such Transactions not
occurred.
(c) Other than as set
forth on Schedule
3.13(c), Target has not terminated any Contracts during the
immediately preceding twelve (12) month period.
3.13 Interested Party
Transactions
(a). No officer,
director, member or equity holder of Target (nor any ancestor,
sibling, descendant or spouse of any of such Persons, or any trust,
partnership, corporation or other entity in which any of such
Persons has or has had an interest) has or has had, directly or
indirectly, (i) an economic interest in any entity which
furnished or sold, or furnishes or sells, services, products or
technology that Target furnishes or sells, or proposes to furnish
or sell, or (ii) any economic interest in any entity that
purchases from or sells or furnishes to Target, any services,
products or technology, or (iii) a beneficial interest in any
Contract to which Target is a party, except in the case of clause
(iii) in any such Person’s capacity as an officer, director
or equity holder of Target.
3.14 Legal
Proceedings
(a). There is no
action, suit, claim or proceeding of any nature pending or
threatened against either Target, any of its properties (tangible
or intangible) or any of its Principals, officers, directors,
Employees, trustees or representatives in their respective
capacities as such. There is no investigation, inquiry or similar
proceeding pending or threatened against Target, any of its
properties (tangible or intangible) or any of its Principals,
officers, directors, Employees, trustees or representatives in
their respective capacities as such by or before any Governmental
Entity. No Governmental Entity has provided Target with written
notice challenging or questioning the legal right of Target to
conduct its operations as conducted at that time or as presently
conducted. There is no action, suit, claim or proceeding of any
nature pending, or which Target has commenced preparations to
initiate, by Target against any Person.
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3.15 Employee
Benefits
(a).
(a) Neither Target nor
any of its Affiliates has made any plan or commitment to establish,
adopt or enter into any Employee Plan or any new Employee
Agreement, or to modify any Employee Agreement.
3.16 Employees
(a).
(a) The Target:
(i) has complied in all
material respects with all applicable foreign, federal, state and
local Laws, collective agreements, works agreements, rules,
practices and regulations respecting employment, employment
practices, employment registration, life collective insurance,
medical coverage contributions, terms and conditions of employment,
employment standards, accessibility, and wages and
hours;
(ii) has correctly paid,
withheld and reported all amounts required by law or agreement to
be paid, withheld and reported with respect to wages (inclusive of
overtime and premium pay), salaries and other payments to Company
Personnel;
(iii) is not liable for
any arrears of wages, Taxes or penalties for failure to comply with
any of the foregoing, and
(iv) is not liable for
any payment to any trust or other fund governed by or maintained by
or on behalf of any Governmental Entity, with respect to
unemployment compensation benefits, pension plan, or other benefits
or obligations for Company Personnel (other than routine payments
to be made in the Ordinary Course of Business), except for any such
liability that would not, individually or in the aggregate, be
material to Target.
(b) There
are no actions, suits, claims, charges, labor disputes or
grievances pending or threatened or reasonably anticipated relating
to any labor, occupational health and safety, discrimination,
accessibility, pay equity or other matters involving any Company
Personnel. There are no notice, severance or other similar
obligations, by Law or Contract, with respect to the termination of
any Employee’s employment; no Employee is subject to an
employment Contract that is not terminable at will in accordance
with applicable Law; the engagement of Target’s consultants
and independent contractors may be terminated on thirty (30)
days’ notice or less at any time without liability; and there
are no Contracts with any Company Personnel providing for
severance, change in control benefits, cash, other compensation,
benefits or contingent rights on Closing.
3.17 Insurance
(a). All
insurance policies of Target are upon terms that are reasonable and
adequate for and are of the type and in amounts customarily carried
by Persons with businesses, operations, properties and locales
similar to those of Target. There is no claim by Target pending
under any of such policies and no facts or circumstances exist
which would give rise to a claim under such policies. All
potentially insurable claims have been properly tendered to the
appropriate insurance carrier in compliance with any applicable
insurance policy notice provisions. All premiums due and payable
under all such policies have been fully paid, and such policies are
in material compliance. All such insurance policies are valid and
binding in accordance with their terms, except as such
enforceability may be subject to laws of general application
relating to bankruptcy, insolvency and the relief of debtors and
rules of law governing specific performance, injunctive relief or
other equitable remedies, and are in full force and effect. There
is no threat of termination of, or premium increase with respect
to, any of such policies.
11
3.18 Compliance with
Laws; Permits
(a).
(a) Target (i) has been
and is currently in compliance in all material respects with all
Laws applicable to it or by which any of its property or assets is
bound and (ii) has not received any notices of material violation
with respect to any Laws.
(b) Target is in
possession of all Permits required under applicable Law for the
current operation of the Business and in compliance in all material
respects with the requirements and limitations included in such
Permits, each of which is in full force and effect. There is no
investigation or proceeding pending or threatened that would result
in the termination, revocation, suspension or restriction of any
Permit or the imposition of any fine, penalty or other sanctions
for violation of any legal or regulatory requirements relating to
any Permit. Target has not received written notice from a
Governmental Entity alleging the failure to hold any Permit or the
violation of any term thereof.
3.19 Anti-Bribery
Laws
(a). Target has
not made any payment, directly or indirectly, to any person in
violation of any applicable federal, state, local or foreign Laws,
including Laws relating to bribes, gratuities, kickbacks, lobbying
expenditures, political contributions and contingent fee payments.
Neither Target nor any third party acting on behalf of Target, has
offered, paid, promised to pay, or authorized, or will offer, pay,
promise to pay, or authorize, directly or indirectly, the giving of
money or anything of value to any appointed or elected official,
any government employee, any political party, party official, or
candidate for political office, or any officer, director or
employee of any Governmental Entity, or to any other Person for the
purpose of influencing any act or decision of such Person in his,
her or its official capacity or inducing such Person to use his,
her or its influence with any Governmental Entity to affect or
influence any act or decision of such Governmental Entity, or to
obtain an improper advantage in order to assist Target or any third
party in obtaining or retaining business for, or directing business
to, Target.
(a). Target has
complied in all material respects with, is not in material
violation of, and has not received any notices of violation with
respect to, any applicable Laws, including applicable Privacy Laws,
Contracts, privacy policies, database registry obligations, or any
other commitments, obligations or representations concerning
privacy and personal data protection, whether relating to its
Employees, customers, suppliers, service providers or any other
third parties from or about whom Target has obtained Personal
Information (“Privacy
Obligations”). Target has full right and authority to
transfer to Purchaser all personal data, including all Personal
Information, in the possession of Target. The consummation of the
Transactions will not violate any Privacy Obligation, nor require
Target to provide any notice to, or seek any consent from, any
Employee, customer, supplier, service provider, grower or other
third party under any privacy policy or Privacy Law.
3.21 Minute
Books
(a). The minutes
of the proceedings of meetings and written resolutions of the Board
of Directors of Target provided to Purchaser are the only minutes
and resolutions of Target as of the date of this Agreement and
contain accurate summaries of all meetings and written resolutions
passed by the Board of Directors (or committees thereof) of
Target.
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(a).
Section 3.22
of the Disclosure Schedule lists (a) the names of all banks, trust
companies, savings and loan associations and other financial
institutions at which Target maintains safe deposit boxes, checking
accounts or other accounts of any nature with respect to the
Business, and (b) the names of all persons authorized to draw
thereon, make withdrawals therefrom or have access
thereto.
3.23 Accounts
Receivable
(a). All
accounts receivable of Target are set forth in Section 3.24 of the Disclosure
Schedule. All accounts receivable of Target (a) are reflected
accurately on the Financial Statements, (b) arose from bona fide
sales of products or services to Persons not affiliated with Target
and in the Ordinary Course of Business and (c) constitute valid,
undisputed claims of Target not subject to valid claims of setoff
or other defenses or counterclaims.
3.24 Brokers
(a). Target has
not incurred or will incur, directly or indirectly, any liability
for investment banking fees or for brokerage or finders’ fees
or agents’ commissions or any similar charges in connection
with this Agreement or the Transactions.
3.25 Suppliers and
Customers
(a). All of the
customers and suppliers of Target are set forth in Section 3.25 of the Disclosure
Schedule. No licensor, vendor, supplier or material customer of
Target has canceled or otherwise modified its relationship with
Target in a materially adverse manner, and no such Person has
communicated (orally or in writing) to the officers, directors or
other senior managers of Target any intention to do so. The
consummation of the Transactions will not adversely affect any such
relationships, nor will the consummation of the Transactions
constitute a breach of any Contract with the licensors, vendors,
suppliers or customers of Target.
3.26 Representations
Complete
(a). None of the
representations or warranties made by Target or Principal (as
modified by the Disclosure Schedule) in this Agreement contains any
untrue statement of a material fact or omits to state any material
fact necessary in order to make the statements contained herein or
therein, in the light of the circumstances under which made, not
misleading.
ARTICLE IV
Principal hereby
represents and warrants to Purchaser as follows:
4.1 Authority.
Principal, as an entity, has all requisite corporate power and
authority to enter into this Agreement and to consummate the
Transactions. This Agreement has been duly executed and delivered
by Principal and constitutes the valid and binding obligations of
Principal, enforceable against such Principal in accordance with
its terms, except as such enforceability may be subject to the laws
of general application relating to bankruptcy, insolvency and the
relief of debtors and rules of law governing specific performance,
injunctive relief or other equitable remedies.
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4.2 No
Conflicts. The execution and
delivery by Principal of this Agreement and the consummation of the
Transactions, will not (with or without notice or lapse of time, or
both): (a) violate any organizational documents of Principal; (b)
result in a material breach of, constitute a material default
under, result in the acceleration of any material obligation under,
create in any party the right to accelerate, terminate, modify, or
cancel, or require any notice or consent under any material
Contract to which Principal is a party or by which Principal is
bound or to which any of Principal’s assets is subject; or
(c) result in any material violation of any Law to which Principal
is subject.
4.3 Title to
Interests. Principal is the
sole record and beneficial owner of the Interests, which constitute
all of the equity interests in the capital of Target held by
Principal. Principal has good and valid title to such Interests,
free and clear of all Liens, claims, demands and restrictions on
transfer, and has full power, right and authority to transfer such
Interests hereunder.
4.4 Litigation.
Principal is not a party to any pending litigation that seeks to
enjoin or restrict its ability to sell or transfer the Interests
hereunder, which, if decided adversely to Principal, could
reasonably be expected to adversely affect Principal’s
ability to consummate the transactions contemplated
hereby.
4.5 Brokers.
Principal has not incurred, nor will it incur, directly or
indirectly, any liability for investment banking fees or for
brokerage or finders’ fees or agents’ commissions or
any similar charges in connection with this Agreement or the
Transactions.
ARTICLE V
Purchaser hereby
represents and warrants to Principal as follows:
5.1 Organization.
Purchaser is a corporation duly organized, validly existing and in
good standing under the laws of Hong Kong. Purchaser has the
corporate power to own its properties and to carry on its business
as currently being conducted.
5.2 Authority.
Purchaser has all requisite corporate power and authority to enter
into this Agreement and the Promissory Note, and to consummate the
Transactions. The execution and delivery of this Agreement and the
Promissory Note have been duly authorized by all necessary action
on the part of Purchaser, and no further action is required. This
Agreement and the Promissory Note have been duly executed and
delivered by Purchaser and, assuming the due authorization,
execution and delivery by the other Parties hereto and thereto,
constitute the valid and binding obligations of Purchaser,
enforceable against it in accordance with their respective terms,
except as such enforceability may be subject to laws of general
application relating to bankruptcy, insolvency and the relief of
debtors and rules of law governing specific performance, injunctive
relief or other equitable remedies.
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5.3 No
Conflicts. The execution and
delivery by Purchaser of this Agreement and the Promissory Note,
and the consummation of the Transactions, will not (with or without
notice or lapse of time, or both): (a) contravene or result in any
violation of any provision of the organizational documents of
Purchaser; (b) result in a material breach of, constitute a
material default under, result in the acceleration of any material
obligation under, create in any party the right to accelerate,
terminate, modify, or cancel, or require any notice or consent
under any material Contract to which Purchaser is a party or by
which Purchaser is bound or to which any of Purchaser’s
assets is subject; (c) result in any material violation of any Law
to which Purchaser is subject or (d) require the consent,
authorization or approval of, or require any notification to, any
Person.
5.4 Litigation.
There is no action, suit, claim or proceeding of any nature
pending, or to the knowledge of Purchaser, threatened, against
Purchaser which, if adversely determined, would reasonably be
expected to prohibit or materially restrain the ability of
Purchaser to enter into this Agreement or the Promissory Note or to
consummate the Transactions.
5.5 Brokers.
Purchaser has not incurred, nor will it incur, directly or
indirectly, any liability for investment banking fees or for
brokerage or finders’ fees or agents’ commissions or
any similar charges in connection with this Agreement or the
Transactions.
ARTICLE VI
ADDITIONAL AGREEMENTS
6.1 Further
Assurances. Each Party
hereto, at the request of another Party hereto, will execute and
deliver such other instruments and do and perform such other acts
and things as may be reasonably necessary or proper for effecting
completely the consummation of the Transactions. In case, at any
time after the Closing Date, any further action is necessary or
desirable to carry out the purposes of this Agreement and the
Transactions, each Party will use commercially reasonable efforts
to take all such action.
6.2 Tax
Matters.
(a) Tax Returns for
Periods Ending Before the Closing Date. The Purchaser will prepare
or cause to be prepared and file or cause to be timely filed all
Tax Returns for Target for all periods ending on or before the
Closing Date (each a “Pre-Closing Tax
Period”) that are filed on or after the Closing Date,
which Tax Returns will be prepared (i) in accordance with
applicable Law and (ii) consistent with past practice of Target
except as otherwise required by applicable Law.
(b) Tax Returns for
Periods Beginning Before and Ending After the Closing Date.
Purchaser will prepare, or cause to be prepared, and file or cause
to be filed any and all Tax Returns of Target for a Tax period that
begins on or before the Closing Date and ends after the Closing
Date (each a “Straddle Tax
Period”), which Tax Returns will be prepared (i) in
accordance with applicable Law and (ii) consistent with the past
practices of Target except as otherwise required by applicable
Law.
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(c) Liability for
Taxes. The Principal will be liable for, pay and indemnify and hold
harmless the Purchaser Indemnified Parties from and against (i) any
Tax with respect to the Principal or Target that is attributed to,
relates to, or arises in respect of any Pre-Closing Tax Period or
that portion of a Straddle Tax Period through the end of the
Closing Date; (ii) any Tax attributable to any breach of or
inaccuracy in any representation or warranty made in Section 3.10; (iii) any Tax
attributable to any breach or violation of, or failure to fully
perform, any covenant, agreement, undertaking or obligation in this
Section 6.3; and
(iv) any and all Taxes of any person imposed on Target arising
under the principles of transferee or successor liability or by
contract, relating to an event or transaction occurring before the
Closing Date. In each of the above cases, together with any
out-of-pocket fees and expenses (including attorneys' and
accountants' fees) incurred in connection therewith. Any amount
payable by Principal pursuant to this Section 6.3(c) must be paid to
Purchaser no later than the earlier of (x) five (5) days after such
payments are requested by Purchaser and (y) five (5) days before
the Tax liability is required to be paid to the applicable Tax
authority. For the avoidance of doubt, this Section 6.3(c), and not
Article VII, will
control with respect to indemnification obligations of Principal
with respect to such Taxes. Notwithstanding any provision of this
Agreement to the contrary, the indemnification obligations of
Principal pursuant to this Section 6.3(c) will survive the
Closing until thirty (30) days after the expiration of the longest
applicable statute of limitations, including any extensions or
waivers thereof, for the Taxes involved.
(d) Cooperation on Tax
Matters. Purchaser, Target and the Principal, will cooperate fully
in connection with the preparation and filing of Tax Returns and
any audit, litigation or other proceeding with respect to Taxes for
any Pre-Closing Tax Period and Straddle Period of Target. Such
cooperation will include the retention and (upon another
Party’s request) the provision of records and information
that are reasonably relevant to any such Tax Return, audit,
litigation or other proceeding and making employees available on a
mutually convenient basis to provide additional information and
explanation of any material provided hereunder, to the extent
reasonably available to such Party. Purchaser agrees to retain all
books and records with respect to Tax matters pertinent to Target
relating to any taxation period beginning before the Closing Date
until the expiration of the statute of limitations (and, to the
extent notified by the Principal, any extensions thereof) of the
respective taxation periods, and to abide by all record-retention
requirements under applicable Law and pursuant to agreements
entered into with any Governmental Entity.
(e) Audits and Contests
with Respect to Taxes. So long as taxation periods of Target ending
on or before, or including, the Closing Date remain open for an
assessment of Tax, Purchaser and the Principal will notify the
other in writing within fifteen (15) Business Days after receipt by
Purchaser or the Principal of written or oral notice of any pending
or threatened audit or assessment with respect to Taxes of Target
relating to any Pre-Closing Tax Period or Straddle Period. Within
fifteen (15) Business Days after the Principal’s receipt of
such a notice for a Pre-Closing Tax Period, the Principal may
elect, so long as Principal may reasonably be expected to have an
obligation to indemnify the Purchaser Indemnified Parties hereunder
with respect to such audit for the Pre-Closing Tax Period, by
written notice to Purchaser, to participate in the audit or
assessment in the name of Purchaser or Target, at the
Principal’s sole cost and expense. If the Principal so
elects, it will be solely responsible for the costs and expenses of
such participation. If the Principal elects to participate in such
a tax matter, Purchaser will inform the Principal of all material
developments and events relating to such matter (including
providing to the Principal copies of relevant portions of all
written or oral materials and communications relating to such
matter) and the Principal or its authorized representative will be
entitled, at the expense of the Principal, to attend and
participate in, all conferences, meetings and proceedings relating
to such defense. With respect to any such audit or assessment
that may reasonably be
expected to cause the Principal to have an obligation to indemnify
the Purchaser Indemnified Parties hereunder, Purchaser will not,
and will not permit Target to, compromise or otherwise settle such
audit or assessment without the prior written consent of the
Principal, which consent will not be unreasonably withheld,
conditioned or delayed.
16
(f) Transfer Taxes. All
transfer, documentary, sales, use, stamp, registration and other
such Taxes, and all conveyance fees, recording charges and other
fees and charges (including any penalties and interest) incurred by
Principal in connection with the consummation of the Transactions
must be paid by or on behalf of Principal when due, and Principal
will, at its own expense, file or cause to be filed all necessary
Tax Returns and other documentation with respect to all such Taxes,
fees and charges. If required by applicable law, the Parties will,
and will cause their Affiliates to, join in the execution of any
such Tax Returns and other documentation.
INDEMNIFICATION
7.1 Survival.
All of the representations, warranties and covenants of the Parties
contained in this Agreement will survive the Closing and continue
in full force and effect after the Closing Date.
(a) Subject to the
terms and conditions of this Article VII, from and after the
Closing, the Principal agree to defend, indemnify and hold harmless
Purchaser and its officers, directors, managers, Affiliates,
agents, representatives, successors and assigns (including, after
the Closing, Target) (each individually, a “Purchaser Indemnified
Party” and collectively, the “Purchaser Indemnified
Parties”) from, against and in respect of any claims,
losses, liabilities, damages, deficiencies, costs and expenses,
including reasonable attorneys’ fees and expenses of
investigation and defense (individually, a “Loss” and
collectively, “Losses”)
arising out of or resulting from:
(i) any breach or
inaccuracy of any representation or warranty made by Target or
Principal in Article
III of this Agreement;
(ii) any breach or
inaccuracy of any representation or warranty made by Principal in
Article IV of this
Agreement; or
(iii) any failure by
Principal to perform or comply with any of its covenants,
agreements or obligations contained in this Agreement.
(b) For purpose of this
Article VII, all
representations and warranties in Article III will be deemed to
have been made without giving effect to any limitation or
qualification as to materiality, including the word or phrase
“material” and “Material Adverse
Effect.”
(c) Principal agrees
that it will have no right of contribution from Target with respect
to any Loss claimed by a Purchaser Indemnified Party.
(d) The representations
and warranties made under this Agreement by Target or Principal
will not be affected or deemed waived by reason of any
investigation made by or on behalf of Purchaser (including by any
of its Affiliates or Purchaser’s or its Affiliates’
advisors, consultants, agents or representatives) or by reason of
the fact that Purchaser or any such Affiliates, advisors,
consultants, agents or representatives knew or should have known
that any such representation or warranty is or might be
inaccurate.
17
7.3 Indemnification by
Purchaser.
(a) Subject to the
terms and conditions of this Article VII, from and after the
Closing, Purchaser agrees to defend, indemnify and hold harmless
Principal, and its Affiliates, agents, representatives, successors
and assigns (each individually, a “Principal Indemnified
Party” and collectively, the “Principal Indemnified
Parties” and, each of the Principal Indemnified
Parties and the Purchaser Indemnified Parties being an
“Indemnified
Party”) for any Losses arising out of or resulting
from:
(i) any breach or
inaccuracy of any representation or warranty made by Purchaser in
Article V of this
Agreement; or
(ii) any failure by
Purchaser to perform or comply with any covenant or other agreement
applicable to it contained in this Agreement (including any
covenant by or with respect to Target after the Closing) or the
Promissory Note.
7.4 Claims for
Indemnification. The procedures
for indemnification under this Agreement are as
follows:
(a) The Indemnified
Party seeking indemnification hereunder (a “Claimant”)
will promptly give notice to the Parties from which indemnification
is claimed (the “Indemnifying
Party”) of any demand, suit, assertion of liability or
claim. If the claim relates to an action, suit or proceeding filed
by another Person against the Claimant (a “Third Party
Claim”), then such notice will be given by the
Claimant within twenty (20) Business Days after written notice of
such action, suit or proceeding is given to the Claimant and will
include true, correct and complete copies of all suit, service and
claim documents; provided, however, that the failure or
delay of the Claimant to provide any such notice or deliver such
copies will not release the Indemnifying Party from any of its
obligations under this Article VII unless (and then
solely to the extent that) the Indemnifying Party is materially
prejudiced thereby.
(b) With respect to
claims solely between the Parties, following receipt of notice from
the Claimant of a claim, the Indemnifying Party will have
forty-five (45) days to make such investigation of the claim as the
Indemnifying Party reasonably deems necessary or desirable, and the
Claimant agrees to make available to the Indemnifying Party and its
authorized representatives all information relevant and necessary
to substantiate the claim, except to the extent any attorney-client
privilege would thereby be violated. If the Claimant and the
Indemnifying Party agree at or prior to the expiration of such
forty-five (45)-day period to the validity and amount of such
claim, then the Indemnifying Party will promptly pay to the
Claimant the full amount of the claim, subject to the terms and
limitations hereof. If the Claimant and the Indemnifying Party do
not reach any such agreement within such forty-five (45)-day
period, then the Claimant may seek an appropriate remedy at law or
in equity, as applicable, subject to the terms and limitations
hereof.
18
(c) With respect to any
Third Party Claim, if (i) the Third Party Claim seeks solely
monetary damages, (ii) the Indemnifying Party confirms, in writing,
its obligation to indemnify and hold the Claimant harmless with
respect to such Losses, (iii) the Indemnifying Party reasonably
demonstrates that it has the financial resources necessary to
defend the matter and fulfill its indemnity obligation, (iv)
settlement of, or consent to entry of judgment with respect to, the
Third Party Claim is not likely to establish a precedent materially
adverse to the Claimant, and (v) the Indemnifying Party covenants
to and will defend the Third Party Claim actively, diligently and
in good faith, then the Indemnifying Party will, subject to the
rights of or duties to any insurer or other third Person having
liability therefor, be entitled to, and the Claimant will provide
the Indemnifying Party with the right to be exercised within thirty
(30) days after receipt of such notice to, assume and maintain
control of the defense and settlement of such Third Party Claim
(with counsel reasonably satisfactory to the Claimant, which
counsel will be at the sole expense of the Indemnifying Party);
provided,
however, that, if
the Indemnifying Party will have exercised such right to assume
such control, then the Claimant will be entitled to participate in
the defense, compromise or settlement of such Third Party Claim and
to employ counsel at its own expense to assist in the handling of
such Third Party Claim and, in such event, counsel selected by the
Indemnifying Party (and reasonably acceptable to the Claimant) will
be required to reasonably cooperate with such counsel of the
Claimant in such defense, compromise or settlement. If the
Indemnifying Party does not assume the defense of the Third Party
Claim, does not comply with the foregoing provisions of this
Section 7.4(c), or
is not entitled to assume such defense, then the Claimant will be
entitled to assume and control such defense and to settle or agree
to pay in full such Third Party Claim without the consent of the
Indemnifying Party without prejudice to the ability of the Claimant
to enforce its claim for indemnification against the Indemnifying
Party hereunder. So long as the Indemnifying Party that is
permitted and has assumed such control and defense is defending
actively, diligently and in good faith any such Third Party Claim
against the Claimant, and otherwise complying with the terms of
this Section
7.4(c), the Claimant will not settle or compromise such
claim or demand. If the Indemnifying Party is permitted and has
assumed and is diligently maintaining the defense of any such claim
or demand as set forth above, then it will have the power and
authority to settle or consent to the entry of judgment of such
Third Party Claim without the consent of the Claimant only if the
judgment or settlement results solely in the payment by the
Indemnifying Party of the full amount of money damages and includes
a full and complete release of the Claimant from any and all
liability thereunder; provided, that the Indemnifying Party will
have made arrangements for the payment of all such damages in a
manner reasonably satisfactory to the Claimant. In all other
events, the Indemnifying Party will not consent to the entry of
judgment or enter into any settlement without the prior written
consent of the Claimant.
7.5 Tax Treatment of
Indemnification Payments. All
indemnification payments under this Agreement will be treated as an
adjustment to the Purchase Price, except to the extent that
applicable tax Law does not permit such treatment.
7.6 No
Duplication. Any Losses for
which any Indemnified Party is entitled to indemnification under
this Article VII
will be determined without duplication of recovery by reason of the
state of facts giving rise to such Losses constituting a breach of
more than one representation, warranty, covenant or
agreement.
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ARTICLE VIII
GENERAL PROVISIONS
8.1 Fees and
Expenses. Except as
otherwise provided in this Agreement, each Party will pay its own
fees, costs and expenses incurred in connection with the
authorization, preparation, execution and performance of this
Agreement and the consummation of the transactions contemplated
hereby (including all fees and expenses of counsel, accountants,
agents and representatives).
8.2 Amendments and
Waivers. No amendment of
any provision of this Agreement will be valid unless the same is in
writing and signed by each of the Parties. No waiver by any Party
of any provision of this Agreement or any default,
misrepresentation, or breach of warranty or covenant hereunder,
whether intentional or not, will be valid unless the same is in
writing and signed by the party making such waiver nor will such
waiver be deemed to extend to any prior or subsequent default,
misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or
subsequent such occurrence.
8.3 Notices.
All notices and other communications hereunder will be in writing
and will be deemed duly delivered (i) three (3) Business Days
after being sent by registered or certified mail, return receipt
requested, postage prepaid, (ii) one (1) Business Day after
being sent for next Business Day delivery, fees prepaid, via a
reputable nationwide overnight courier service, or (iii) on
the first Business Day following the date of confirmation of
receipt of transmission by facsimile or electronic mail, in each
case to the intended recipient as set forth below:
(a) if to
Purchaser:
Xxxxx
0-00, 00/Xxxxx
Xxxxx
Xxxxxx XX
00 Xxx
Xxxx Street, Kowloon Bay, Kowloon, Hong Kong
Attention: Xxxxxxx
Xxx
E-mail:
xxxxxxx@xxxxxxxxx.xxx
(b) if to Principal or
the Representative:
0
Xxxxxxx Xxxxxxxxx #00-00X
Xxxxxx
Xxxxx Xxx
Xxxxxxxxx
000000
Attention: Xx. Xxx
X. Xxxx
Facsimile No.:
x00-0000-0000
E-mail:
xxx@xxx.xxx.xx
8.4 Counterparts;
Facsimiles. This Agreement
may be executed by facsimile and in one or more counterparts, all
of which will be considered one and the same agreement and will
become effective when one or more counterparts have been signed by
each of the Parties and delivered to the other Parties, it being
understood that all parties need not sign the same counterpart.
Signatures delivered by facsimile or by electronic data file will
have the same effect as originals.
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8.5 Entire Agreement;
Assignment. This Agreement,
the Disclosure Schedule, the Exhibits, the Promissory Note and the
documents and instruments and other agreements among the parties
hereto referenced herein: (i) constitute the entire agreement
among the parties with respect to the subject matter hereof and
supersede all prior agreements and understandings both written and
oral, among the parties with respect to the subject matter hereof;
(ii) are not intended to confer upon any other Person any
rights or remedies hereunder; and (iii) will not be assigned
by operation of law or otherwise without the prior written consent
of the parties hereto, except that Purchaser may assign its rights
and delegate its obligations hereunder to its Affiliates so long as
Purchaser remains obligated to perform those obligations required
to be performed by Purchaser hereunder. This Agreement will be
binding upon and inure to the benefit of the parties and their
respective successors and permitted assigns.
8.6 Severability.
In the event that any provision of this Agreement or the
application thereof, becomes or is declared by a court of competent
jurisdiction to be illegal, void or unenforceable, the remainder of
this Agreement will continue in full force and effect and the
application of such provision to other Persons or circumstances
will be interpreted so as reasonably to effect the intent of the
Parties. The Parties further agree to replace such void or
unenforceable provision of this Agreement with a valid and
enforceable provision that will achieve, to the extent possible,
the economic, business and other purposes of such void or
unenforceable provision.
8.7 Governing
Law. Except as
otherwise provided herein, this Agreement will be governed by and
construed in accordance with the Laws of Hong Kong without giving
effect to any choice or conflict of law provision or rule that
would cause the application of the Laws of any jurisdiction other
than Hong Kong. Each of the parties irrevocably agrees that any
legal action or proceeding arising out of or relating to this
Agreement brought by the other party or its successors or assigns
will be brought and determined in a court sitting in Hong Kong, and
each of the parties hereby irrevocably submits to the exclusive
jurisdiction of the aforesaid court for itself and with respect to
its property, generally and unconditionally, with regard to any
such action or proceeding arising out of or relating to this
Agreement and the Transactions contemplated hereby. Each of the
parties agrees not to commence any action, suit or proceeding
relating thereto except in the courts described above in Hong Kong.
Each of the parties further agrees that notice as provided herein
will constitute sufficient service of process and the parties
further waive any argument that such service is insufficient. Each
of the parties hereby irrevocably and unconditionally waives, and
agrees not to assert, by way of motion or as a defense,
counterclaim or otherwise, in any action or proceeding arising out
of or relating to this Agreement or the transactions contemplated
hereby, (a) any claim that it is not personally subject to the
jurisdiction of the courts in Hong Kong as described herein for any
reason, (b) that it or its property is exempt or immune from
jurisdiction of any such court or from any legal process commenced
in such courts (whether through service of notice, attachment prior
to judgment, attachment in aid of execution of judgment, execution
of judgment or otherwise) and (c) that (i) the suit, action or
proceeding in any such court is brought in an inconvenient forum,
(ii) the venue of such suit, action or proceeding is improper or
(iii) this Agreement, or the subject matter hereof, may not be
enforced in or by such courts.
8.8 WAIVER OF JURY
TRIAL. EACH OF THE
PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY
AND ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON
CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE ACTIONS OF ANY PARTY HERETO IN NEGOTIATION,
ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF.
[Remainder
of Page Intentionally Left Blank;
The Next Page is the Signature Page]
21
IN
WITNESS WHEREOF, the Parties have caused this Agreement to be
signed as of the date first above written.
PURCHASER:
DSS
Asia Limited
By:
/s/ Xxxxxxx
Xxx
Name:
Xxxxxxx Xxx
Title:
Director
TARGET:
Guangzhou
Hotapps Technology Ltd.
By:
/s/ Xxxx Xxxx Xxx
Xxxxxxx
Name:
Xxxx Xxxx Xxx Xxxxxxx
Title:
Director
PRINCIPAL REPRESENTATIVE:
By:
/s/ Xxxx Xxxx Xxx
Xxxxxxx
Name:
Xxxx Xxxx Xxx Xxxxxxx
Title:
Director
PRINCIPAL:
HotApps
International Pte Ltd.
By:
/s/ Xxxx Xxxx Xxx
Xxxxxxx
Name:
Xxxx Xxxx Xxx Xxxxxxx
Title:
Director
Exhibit
A
Defined
Terms
Capitalized terms
used in the Agreement to which this Exhibit A is attached will have
the following respective meanings, and all references to Sections,
Schedules or Exhibits in the following definitions will refer to
Sections, Schedules or Exhibits of or to such
Agreement:
“Affiliate”
means, with respect to any Person, any other Person directly or
indirectly through one or more intermediaries controlling,
controlled by or under common control with such other Person. For
purposes hereof, “control” means, as to any Person, the
possession of the power to direct or cause the direction of the
management and policies of such Person, whether through the
ownership of voting securities, by contract or
otherwise.
“Agreement” has
the meaning set forth in the preamble.
“Business”
means the business of Target as (a) conducted immediately prior to
the Closing and (b) the Parties presently anticipate will be
conducted following the Closing.
“Business Day”
means any day other than (a) a Saturday or Sunday or
(b) a day on which banking institutions located in New York,
New York are permitted or required by Law, executive order or
governmental decree to remain closed.
“Charter
Documents” has the meaning set forth in Section 3.1.
“Claimant” has
the meaning set forth in Section 7.4(a).
“Closing” has
the meaning set forth in Section 2.3.
“Closing Date”
has the meaning set forth in Section 2.3.
“Closing
Indebtedness” means the Indebtedness of Target as of
11:59 p.m. on the Closing Date.
“Closing
Statement” has the meaning set forth in Section 2.4(a)(i).
“Company
Personnel” means any current or former Employee,
independent contractor or consultant or director of Target or any
of its Affiliates.
“Confidential
Information” means any information of or concerning
Purchaser, Target, this Agreement and the Transactions that is
confidential or propriety by nature and not already generally
available to the public; provided, that Confidential
Information will not include: (a) information that at the time of
disclosure is generally available to the public or is otherwise
available to the receiving party other than on a confidential
basis; (b) information that, after disclosure, becomes generally
available to the public by publication or otherwise through no
fault of the receiving party; (c) information disclosed to the
receiving party by a third party not under an obligation of
confidentiality to the disclosing party; or (d) information that is
or has been developed by the receiving party independently of the
disclosures by the disclosing party.
A-1
“Contract”
means any contract, agreement, indenture, note, bond, mortgage,
loan, instrument, lease, license, commitment or other arrangement,
understanding, undertaking, commitment or obligation, whether
written or oral.
“Copyrights”
means any and all copyrights, copyrights registrations and
applications therefor, and all other rights corresponding thereto
throughout the world including moral and economic rights of authors
and inventors, however denominated.
“Disclosure
Schedule” means the disclosure schedule delivered by
Target to Purchaser simultaneously with the execution of this
Agreement and in connection herewith in form reasonably acceptable
to Purchaser.
“Domain Name”
means any or all of the following and all worldwide rights in,
arising out of, or associated therewith: domain names, uniform
resource locators and other names and locators associated with the
Internet.
“Employee”
means any employee of Target.
“Employee
Agreement” means each management, employment,
severance, notice of termination, termination pay, contractor,
consulting, relocation, repatriation, expatriation, visas, work
permit, non-competition, non-solicitation, intellectual property,
confidentiality or other agreement, or contract between Target or
any of its Affiliates and any Company Personnel.
“Employee Plan”
means any plan, program, policy, practice, contract, agreement or
other material arrangement providing for compensation, severance,
termination pay, change of control payments, deferred compensation,
bonus, incentive or performance awards, stock or stock-related
awards, statutory, fringe, pension, supplemental pension,
retirement, death, disability or medical benefits or any other
employee benefits or remuneration of any kind, whether written,
unwritten or otherwise, funded or unfunded.
“Financial
Statements” has the meaning set forth in Section 3.7.
“Governmental
Entity” has the meaning set forth in Section 3.6.
“Indebtedness”
means (a) any indebtedness for borrowed money, (b) any other
indebtedness evidenced by bonds, debentures, notes or other similar
instruments, (c) any obligations as lessee under leases for
personal property, (d) any indebtedness created or arising under
any conditional sale or other title retention agreement with
respect to acquired property, (e) any obligations, contingent or
otherwise, under acceptance credit, letters of credit or similar
facilities, (f) all obligations arising from cash/book overdrafts,
(g) all obligations secured by a Lien, (h) all indebtedness for the
deferred purchase price of property or services with respect to
which a Person is liable, contingently or otherwise, as obligor or
otherwise, (i) any liability for earned and unused vacation or
personal time off of the Employees, (j) all accrued interest,
prepayment premiums or penalties related to any of the foregoing,
(k) and (l) any guaranty of any of the foregoing.
“Indemnified
Party” has the meaning set forth in Section 7.3(a).
“Indemnifying
Party” has the meaning set forth in Section 7.4(a).
A-2
“Interests”
has the meaning set forth in the recitals.
“Knowledge of
Target” means the actual knowledge of Target’s,
Target’s officers and directors, Principal and
Principal’s officers and directors and the knowledge that
such Persons should have in performing their day-to-day duties for
Target.
“Law” means any
law, statute, ordinance, rule, regulation, code, order, judgment,
injunction, decree or other provision having the force or effect of
law enacted, issued, promulgated, enforced or ordered by a
Governmental Entity.
“Lease
Agreements” has the meaning set forth in Section 3.11(a).
“Leased Real
Property” has the meaning set forth in Section 3.11(a).
“Liability”
means, with respect to any Person, any liability or obligation of
such Person of any kind, character or description, whether known or
unknown, absolute or contingent, accrued or unaccrued, disputed or
undisputed, liquidated or unliquidated, secured or unsecured, joint
or several, due or to become due, vested or unvested, executory,
determined, determinable or otherwise, and whether or not the same
is required to be accrued on the financial statements of such
Person.
“Lien”
means any mortgage, deed of trust, pledge, security interest,
encumbrance, claim, Liability, adverse claim of ownership or use,
lease, option, easement, reversion, violation, adverse claim,
servitude, hypothecation, restriction on transfer (such as a right
of first refusal or other similar right), defect of title, lien or
charge of any kind, or restriction of any kind.
“Loss” has the
meaning set forth in Section 7.2.
“Material Adverse
Effect” means any event, condition, effect, change,
development or circumstance that, individually or when considered
together with all other events, conditions, effects, changes,
developments or circumstances, has had or would reasonably be
expected to have a materially adverse effect on (a) the business,
assets, financial condition or results of operations of Target, or
(b) the ability of Target or the Principal to consummate the
transactions contemplated by this Agreement or perform their
obligations under this Agreement; provided, however, that in no event will
any of the following, alone or in combination, be deemed to
constitute, nor will any of the following be taken into account in
determining whether there has occurred, a Material Adverse Effect:
(i) effects resulting from changes in applicable Law; (ii) effects
resulting from factors generally affecting the economy, financial
markets or capital markets; (iii) effects resulting from changes or
conditions generally affecting the industry in which Target
operates; (iv) effects of any war, act of terrorism, civil unrest
or similar event; or (v) effects resulting from any action taken,
or any omission to act, by Purchaser or any of its Affiliates other
than the closing of the Transactions; provided, further, however, that any effect
referred to in clauses (i), (ii) or (iii) may be taken into account
in determining whether or not there has been a Material Adverse
Effect to the extent any such Effect adversely affects Target in a
disproportionate manner relative to other companies in the same
industry.
“Material
Contracts” has the meaning set forth in Section 3.12(a).
A-3
“Net
Working Capital” means, as of the Closing Date: (i)
the total current assets of the Target, as determined in accordance
with Target’s financial statements, less (ii) the total
current liabilities of Target, excluding debt, as determined in
accordance with the Target’s compiled financial
statements.
“Ordinary Course of
Business” means the ordinary and usual course of
day-to-day operations of the Business through the date hereof
consistent with past custom and practice (including with respect to
quantity and frequency).
“Principal
Indemnified Party” has the meaning set forth in
Section 7.3(a).
“Principal” has
the meaning set forth in the preamble.
“Target
Cash” means all cash and cash equivalents of each of
Target as of 11:59 p.m. on the Closing Date (without giving effect
to any of the Transactions). For the avoidance of doubt, Target
Cash will be calculated net of issued but uncleared checks and
drafts and inclusive of deposits in transit.
“Target Charter
Documents” has the meaning set forth in Section 3.1(a).
“Party” and
“Parties” has
the meaning set forth in the preamble.
“Patents” means
any patents and applications therefor and all reissues, divisions,
renewals, extensions, provisionals, continuations and
continuations-in-part thereof throughout the world.
“Permits” means
any permits, consents, licenses, certificates, registrations,
certificate of occupancy or use, variances, orders, governmental
authorizations or approvals, or any other permits.
“Person” means
any natural person, company, corporation, limited liability
company, general or limited partnership, trust, proprietorship,
joint venture, or other business entity, unincorporated
association, organization or enterprise, or any Governmental
Entity.
“Personal
Information” means all information regarding or
capable of being associated with an individual person or device,
including: (a) information that identifies, could be used to
identify or is otherwise identifiable with an individual, including
name, physical address, telephone number, email address, financial
account number or government-issued identifier, medical, health or
insurance information, gender, date of birth, educational or
employment information, religious or political views or
affiliations, marital or other status, and any other data used or
intended to be used to identify, contact or precisely locate an
individual (e.g., geolocation data); (b) information that is
created, maintained, or accessed by an individual (e.g., videos,
audio or individual contact information); and (c) Internet Protocol
addresses, unique device identifiers or other persistent
identifiers. Personal Information may relate to any individual,
including a current, prospective or former customer, service user,
or employee of any Person. Personal Information includes
information in any form, including paper, electronic and other
forms.
“Pre-Closing Tax
Period” has the meaning set forth in Section 6.2(a).
A-4
“Privacy Laws”
means any Laws, legal requirements, and self-regulatory guidelines
and principles governing the receipt, collection, compilation, use,
storage, processing, transmission, sharing, safeguarding, security,
disposal, destruction, disclosure or transfer (including
cross-border transfers) of Personal Information.
“Privacy
Obligations” has the meaning set forth in Section 3.20.
“Purchase
Price” has the meaning set forth in Section 2.2(a).
“Purchaser” has
the meaning set forth in the preamble.
“Purchaser Indemnified
Party” has the meaning set forth in Section 7.2.
“Representative”
has the meaning set forth in the preamble.
“Restricted
Business” has the meaning set forth in Section Error! Reference
source not found..
“Restricted
Territory” means worldwide, but if the foregoing
definition is deemed by a court of competent jurisdiction to be too
broad to be enforced, the “Restricted Territory” will
mean the United States, China, Singapore and Hong
Kong.
“Software”
means all (a) software programs in all forms of expression,
including firmware, all versions of source code, object code,
assembly language, compiler language, machine code, and all other
computer instructions, code, and languages embodied in computer
software of any media, and whether for use in or in conjunction
with a mainframe computer, personal computer (desktop, laptop or
hand held), mobile device, personal digital assistant, smartphone
or any other programmable hardware or device, computer systems,
computer hardware, network infrastructure and related equipment,
and all error corrections, updates, upgrades, enhancements,
translations, modifications, adaptations, derivative works thereto,
and other changes or functionality additions thereto; and (b) all
designs and design documents (whether detailed or not), technical
summaries, and documentation (including flow charts, logic
diagrams, white papers, manuals, guides and specifications)
associated with the foregoing.
“Straddle Tax
Period” has the meaning set forth in Section 6.2(b).
“Subsidiary”
means any entity of which (i) a majority of the outstanding share
capital, voting securities or other equity interests are owned,
directly or indirectly, by Target or (ii) Target is entitled,
directly or indirectly, to appoint a majority of the board of
directors, board of managers or comparable governing body of such
Person.
“Tax” or,
collectively, “Taxes” means
(a) any and all federal, provincial, state, local and foreign
taxes, assessments and other governmental charges, duties,
impositions and liabilities, including gross receipts, income,
profits, capital, sales, goods and services, harmonized sales, use,
occupation, value added, ad valorem, transfer, business, franchise,
environmental, minimum or add-on minimum, premium, stamp,
disability, withholding, payroll, recapture, employment, excise and
property taxes, duties or similar charges, public imposts, fees,
social security charges (including health, unemployment and pension
insurance), escheat or unclaimed property charges and obligations,
or other taxes, fees, assessment or charges of any kind whatsoever,
together with all interest, penalties, fines and additions imposed
with respect to such amounts, (b) any Liability for the payment of
any amounts of the type described in clause (a) of this paragraph
as a result of being a member of an affiliated, consolidated,
combined or unitary group for any period, and (c) any Liability for
the payment of any amounts of the type described in clauses (a) or
(b) of this paragraph as a result of any express or implied
obligation to indemnify any other Person or as a result of any
obligation under any agreement or arrangement with any other Person
with respect to such amounts and including any Liability for taxes
of a transferor or predecessor entity.
A-5
“Tax Return”
has the meaning set forth in Section 3.10(a).
“Third-Party
Claim” has the meaning set forth in Section 7.4(a).
“Trade Secrets”
means any and all trade secrets (including, those trade secrets
defined in the Uniform Trade Secrets Act and under corresponding
foreign statutory and common law) and proprietary business,
technical and know-how information, non-public information, and
confidential information and rights to limit the use or disclosure
thereof by any Person, including databases and data
collections.
“Trademarks”
means any and all trade names, logos, common law trademarks and
service marks, trademark and service xxxx registrations and
applications therefor and all goodwill associated therewith
throughout the world.
“Transaction
Expenses” means (a) all fees, costs and expenses of
any brokers, financial advisors, consultants, accountants,
attorneys or other professionals engaged by Target or Principal in
connection with the sale process for Target and the structuring,
negotiation or consummation of the Transactions and (b) any
bonuses, severance payments or similar compensation (including
Target’s portion of any employment or payroll Taxes or any
payments or charges under any Employee Plan arising in connection
with such payments) payable by Target to Employees, officers,
directors, independent contractors, consultants, representatives or
agents in connection with the Transactions, in each case to the
extent unpaid as of the Closing.
“Transactions”
has the meaning set forth in Section 3.4.
A-6
EXHIBIT
B
THIS
PROMISSORY NOTE HAS NOT BEEN REGISTERED UNDER ANY FEDERAL
SECURITIES ACT OR LAW, NOR ANY APPLICABLE FOREIGN OR STATE LAW, AND
MAY NOT BE SOLD, OFFERED FOR SALE, DISTRIBUTED, ASSIGNED, PLEDGED
OR OTHERWISE TRANSFERRED UNLESS (A) THERE IS AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE OR
FOREIGN SECURITIES LAWS COVERING ANY SUCH TRANSACTION OR (B) SUCH
TRANSACTION IS EXEMPT FROM REGISTRATION UNDER SUCH ACT AND
APPLICABLE STATE OR FOREIGN SECURITIES LAWS.
PROMISSORY NOTE
|
$100,000.00
|
October__,
2018
|
|
|
|
FOR
VALUE RECEIVED, DSS Asia Limited (the “Borrower”),
promises to pay to HotApps International Pte Ltd. (the
“Lender”), or to its order, the principal sum of
$100,000 (the “Principal Amount”), on the following
terms.
1. Maturity.
The aggregate outstanding Principal Amount shall be due and payable
in full on October __, 2020.
2. Interest.
This Note shall not accrue interest.
3.
Borrower Prepayment
Option. At any time on or before the Maturity Date, the
Borrower shall have the right to prepay all or part of the then
outstanding principal of this Note.
4. Late
Charge. If the Principal Amount is not received
within thirty (30) days of its due date, Borrower shall pay a late
charge equal to two and one-half percent (2.5%) of the delinquent
amount.
5. Collateral.
This Note is unsecured.
6. Replacement
of Note. If this Note is mutilated, lost, stolen or
destroyed, the Borrower shall issue or cause to be issued in
exchange and substitution for and upon cancellation hereof, or in
lieu of and substitution for this Note, a new Note, but only upon
receipt of evidence reasonably satisfactory to the Borrower of such
loss, theft or destruction and customary and reasonable bond or
indemnity, if requested.
7. Events
of Default. The following constitute an event of
default (“Event of Default”):
a. Borrower
fails to pay the Principal Amount when due, and said failure
continues for a period of thirty (30) days;
b. Borrower
fails or neglects to perform, keep or observe any of the covenants,
conditions or agreements contained in this Note, and such failure
continues for a period of thirty (30) days;
c. A
proceeding under any bankruptcy, reorganization, arrangement of
debt, insolvency, readjustment of debt or receivership law or
statute is filed against Borrower which is not dismissed within
sixty (60) days of its filing, or a proceeding under any
bankruptcy, reorganization, arrangement of debt, insolvency,
readjustment of debt or receivership law or statute is filed by
Borrower or the Borrower makes an assignment for the benefit of
creditors; and
d. Borrower
becomes insolvent or fails generally to pay its debts as they
become due, and said failure continues for a period of thirty (30)
days.
B-1
8. Purpose. The
Principal Amount constitutes the financial consideration for an
Equity Purchase Agreement entered into by the parties on October
__, 2018.
9. Miscellaneous.
a. Authority
and Enforceability; Etc. The Borrower hereby represents and
warrants to the Lender that:
i. it
has full power and authority and has taken or shall take all
required action necessary to permit it to execute, deliver, and
perform all of its obligations contained in this Note, and to
borrow hereunder, and such actions to the best of its knowledge
will not violate any provision of law applicable to the Borrower,
or result in the breach of or constitute a default under any
material agreement or instrument to which the Borrower is a party
or by which it is bound, which default has not been waived in
writing on or prior to the date hereof;
ii. this
Note has been duly authorized and validly executed by and is the
valid and binding obligation of the Borrower enforceable in
accordance with its terms, except as enforceability may be limited
by bankruptcy, insolvency, or other laws affecting creditors’
rights and remedies generally, and by general principles of equity
(regardless of whether enforceability is considered in a proceeding
in equity or at law); and
iii. neither
the execution and delivery by the Borrower of this Note, nor the
performance by the Borrower of its obligations hereunder, requires
the consent, approval or authorization of any person or
governmental authority, which consent, approval, or authorization
has not been obtained.
b. Notices.
All notices to any party required or permitted hereunder shall be
in writing and shall be sent to the mailing address or email
address set forth for such party as follows:
i. If
to Lender:
0
Xxxxxxx Xxxxxxxxx #00-00X, Xxxxxx Xxxxx Xxx, Xxxxxxxxx
000000
Xx.
Xxxx - xxx@xxx.xxx.xx
ii. If
to Borrower:
Xxxxx
0-00, 00/Xxxxx, Xxxxx Xxxxxx XX, 00 Xxx Xxxx Street
Kowloon
Bay, Kowloon, Hong Kong
Xx.
Xxxxxxx Xxx – xxxx@xxxxxxxxx.xxx
Any
such notice shall be deemed duly delivered (i) three (3)
Business Days after being sent by registered or certified mail,
return receipt requested, postage prepaid, (ii) one (1)
Business Day after being sent for next Business Day delivery, fees
prepaid, via a reputable nationwide overnight courier service, or
(iii) on the first Business Day following the date of
confirmation of receipt of transmission by facsimile or electronic
mail.
c. Waiver.
No failure to exercise, and no delay in exercising, on the part of
the Lender, any right, power, or privilege hereunder shall operate
as a waiver thereof; nor shall any single or partial exercise of
any right, power, or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, power,
or privilege. The rights and remedies herein provided are
cumulative and not exclusive of any rights or remedies provided by
law.
d. Amendments.
Any term, covenant, or condition of this Note may be amended or
waived only by written consent of the Borrower and the
Lender.
e. Expenses.
Any reasonable expense incurred by the Lender (including, without
limitation, reasonable attorneys’ fees and disbursements) in
connection with the administration or enforcement of this Note, or
the exercise of any right or remedy upon the occurrence of an Event
of Default, including, without limitation, the costs of collection
and reasonable attorneys’ fees and expenses, shall be paid by
the Borrower within fifteen (15) days of receiving written notice
thereof from the Lender. Any such expense incurred by the Lender
and not timely paid by the Borrower shall be added to the other
obligations hereunder and shall not earn interest but shall be
subject to the late charge as set forth in Section 4
hereof.
B-2
f. Governing
Law. This Note shall be governed by and construed in
accordance with the laws of Hong Kong without giving effect to any
conflict or choice of laws principles.
g. Transfer;
Successors and Assigns. The terms and conditions of this
Note shall inure to the benefit of and be binding upon the
respective successors and assigns of the parties. This Note shall
not be assignable by Lender without the prior written consent of
the Borrower, provided that the Lender may assign or transfer any
of its rights, privileges, or obligations set forth in, arising
under, or created by this Note to any entity controlled by,
controlling or under common control with the Lender. The Borrower
may not assign this Note without prior written consent of the
Lender.
h. Entire
Agreement. This Note contains the entire agreement of the
Borrower and the Lender with respect to the subject matter
hereof.
IN
WITNESS WHEREOF, the Borrower and Lender have caused this Note to
be executed as of the day and year first above
written.
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DSS Asia Limited
(Borrower)
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By:
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/s/ Xxxxxxx Xxx
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Name: Xxxxxxx Xxx
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Title:
Director
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HotApps
International Pte Ltd. (Lender)
|
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By:
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/s/ Xxxx Xxxx Xxx
Xxxxxxx
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Name: Xxxx Xxxx Xxx
Xxxxxxx
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Title:
Director
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B-3
