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EXHIBIT 2
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made and entered
into as of November 20, 1997 by and among AmeriQuest/Kenfil, Inc., a Delaware
corporation (the "Seller"), AmeriQuest Technologies, Inc., a Delaware
corporation and the sole stockholder of Seller ("AmeriQuest") and Regentland
Holdings Ltd., a company incorporated in Hong Kong ("Purchaser").
RECITALS
A. Seller is the beneficial owner of 100% of the issued share
capital of Kenfil Distribution (Far East) Limited, a Hong Kong corporation
("Kenfil HK"). Kenfil HK is the sole stockholder of Kenfil Distribution (M)
Sdn. Bhd., a Malaysian Corporation ("Kenfil Malaysia"). Kenfil HK and Kenfil
Malaysia are sometimes hereinafter referred to collectively as "Kenfil Asia".
B. Seller desires to sell to the Purchaser; and the Purchaser
desires to purchase from Seller, all of the issued shares of capital stock of
Kenfil HK (the "Shares").
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter set forth and other good and valuable consideration, and upon the
terms and subject to the conditions contained herein, the parties hereto hereby
agree as follows:
AGREEMENT
ARTICLE I
SALE AND TRANSFER OF SHARES
Subject to the terms and conditions set forth herein, at the Closing
(as defined below), Seller shall sell, and the Purchaser shall purchase, all of
the Shares.
ARTICLE II
PURCHASE PRICE, PAYMENT, CLOSING AND TERMINATION
2.1 Purchase Price. The aggregate cash purchase price to be paid
by the Purchaser in exchange and as consideration for the Shares will equal
$450,000 (the "Purchase Price").
2.2 Payment of Purchase Price.
(a) The Purchase Price shall be paid by the Purchaser to the
Seller at the Closing (in full and without any deduction or set off
whatsoever).
(b) The signing and delivery of the agreements, documents and
instruments described in clause 2.4 and all payments to be delivered or made at
the Closing, and the consummation of all transactions contemplated to be
consummated at the Closing, shall take place simultaneously, and no signing,
delivery, payment or transaction shall be deemed to have occurred, been made or
taken place until all such signing, deliveries, payments and transactions have
been contemplated.
2.3 Stamp duty. The Purchaser and the Seller shall each bear one
half of the Hong Kong stamp duty payable on the transfer of the Shares. The
Purchaser shall be solely responsible for having the
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instruments of transfers and the bought and sold notes used in respect of the
transfer of the Shares adjudicated by the Stamp Office for the purpose of
determining the amount of stamp duty payable within the prescribed time.
2.4 Closing. The consummation of the transactions contemplated by
this Agreement (the "Closing") shall take place immediately after signing of
this Agreement (the "Closing Date"), at the offices of Xxxxx & Xxxxx, 0xx
Xxxxx, Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxx Xxxx or at such other date, time
and place as may be mutually agreed upon in writing by the parties. All
proceedings to take place at the Closing shall take place simultaneously, and
no delivery shall be considered to have been made until all such proceedings
have been completed. At the Closing:
(a) The Purchaser (i) shall pay to Seller the Purchase Price
as set forth in Section 2.2 and shall cause Kenfil HK to pay the Dividend (as
defined in Section 7.2(e) to Seller, (ii) shall execute and deliver to Seller
(A) a certificate executed by the Purchaser certifying that the conditions set
forth in Sections 7.2(a) and (b) have been satisfied as of the Closing and (B)
certified true copies of each of resolutions of the directors of the Purchaser
approving the entering into and performance of this Agreement, resolutions of
the shareholders of the Purchaser ratifying the actions of the Purchaser's
directors and resolutions of the directors of Kenfil HK approving the
transactions contemplated by this Agreement, in each case in a form approved by
the Seller (collectively, the "Purchaser Closing Documents and Deliveries");
and
(b) The Seller (i) shall deliver to the Purchaser duly
executed instruments of transfer and sold notes in respect of the Shares in
favor of the Purchaser (or its nominees) accompanied by declarations of loss
for the relevant certificates for the Shares and (ii) shall execute and deliver
to the Purchaser a certificate of an executive officer of Seller that the
conditions set forth in Sections 7.3 (a) and (b) have been satisfied as of the
Closing and (iii) shall deliver to the Purchaser Certificates of Good Standing
of Seller and AmeriQuest and a legal opinion of Xxxxxxx X. Xxxxx, counsel to
the Seller certifying, inter alia, (i) that AmeriQuest/Kenfil Inc. is validly
existing and in good standing in the State of Delaware and is the
successor-in-interest by merger to Kenfil Distribution, Inc. and (ii) that all
corporate proceedings required to be taken by or on behalf of the Seller to
authorize it to carry out this Agreement have been performed and that, upon due
execution, it will be valid and binding on the Seller (collectively, the
"Seller Closing Documents and Deliveries").
The Purchaser agrees that as the share certificates for the Shares
have been lost, these need not be delivered.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller and, with respect to Sections 3.2(a), 3.2(c), 3.3, 3.6, 3.7,
3.8 and 3.11 only, AmeriQuest jointly and severally represent and warrant to
the Purchaser that:
3.1 Organization and Qualification. Kenfil HK is a corporation
duly organized, validly existing and in good standing under the laws of Hong
Kong. Kenfil Malaysia is a corporation duly organized, validly existing and in
good standing under the laws of Malaysia. Each of Kenfil HK and Kenfil Malaysia
has the requisite corporate power and authority to own, use or lease its
properties and to carry on its business as it is now being conducted.
3.2 Ownership.
(a) Seller is the sole beneficial owner of all of the
issued and outstanding shares of capital of Kenfil HK, free and clear of any
claims, liens, pledges, options, security interests, trusts, encumbrances or
other rights or interests of any person. No agreement or other document grants
or
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imposes on any such issued shares of Kenfil HK any right, preference, privilege
or restriction with respect to the transaction contemplated hereby (including,
without limitation, any rights of first refusal).
(b) As far as Seller is aware, Kenfil HK is the sole
beneficial owner of all of the issued and outstanding shares of capital stock
of Kenfil Malaysia and such shares are owned by Kenfil free and clear of any
claims, liens, pledges, options, security interests, trusts, encumbrances or
other rights or interests of any person.
(c) Seller has the absolute and unrestricted right,
power, authority and capacity to transfer the Shares to Purchaser and upon the
Closing, without exception, and Purchaser will acquire from Seller legal and
beneficial ownership of the Shares, free from any charge, lien, encumbrance or
adverse claim of any kind whatsoever.
3.3 Authority Relative to this Agreement. Seller has all
requisite power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby on
the part of Seller has been duly and validly authorized and no other
proceedings on the part of Seller are necessary, as a matter of law or
otherwise, to authorize this Agreement or to consummate the transactions so
contemplated. This Agreement has been duly and validly executed and delivered
by Seller and, assuming this Agreement constitutes a valid and binding
obligation of Purchaser, this Agreement constitutes a valid and binding
agreement of Seller, enforceable against it in accordance with its terms.
3.4 Broker's Commission or Finder's Fees. No person or entity has
acted for Seller in connection with the transactions provided for in this
Agreement in a way which would entitle such person to, and no person or entity
is entitled to, any broker's commissions or finder's fees (or other similar
fees or commissions) in connection with this Agreement. Seller is solely
responsible for the payment of any commissions and/or finder's fees and
fairness opinion fees due to Chase Securities Inc. in connection with this
Agreement.
3.5 Title to Assets. As far as Seller is aware, each of Kenfil HK
and Kenfil Malaysia has good and marketable title to all of its assets and
properties, whether tangible or intangible, real or personal, and such assets
and properties constitute all of the assets and interests in assets that are
used or useful in the conduct of the business of Kenfil Asia as currently being
conducted.
3.6 Consent and Approvals, No Violation. As far as Seller and
AmeriQuest are aware, the execution and delivery of this Agreement by Seller,
the consummation by Seller of the transactions contemplated hereby or the
performance by Seller of its obligations hereunder, will not:
(a) require any consent, approval, authorization or
permit of, or outstanding filing with or notification to, any governmental or
regulatory authority;
(b) conflict with, result in the breach of or constitute
a default (or give rise to any right of termination, cancellation or
acceleration) under any of the terms, conditions or provisions of any material
note, lease, mortgage, license, agreement or other instrument or obligation to
which Seller is a party or by which Seller or any of its assets may be bound,
except for such defaults (or rights of termination, cancellation or
acceleration) as to which requisite waivers or consents have been obtained or
which, in the aggregate, would not have a material adverse effect on the
financial condition, business, properties, or results of operations of Seller;
or
(c) conflict with or violate the provisions of any order,
writ, injunction, judgment, decree, statute, rule or regulation applicable to
Seller, in such a manner as to result in a material adverse effect on the
financial condition, business, properties or results of operations of Seller
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3.7 No Adverse Litigation. Seller is not party to any litigation
that seeks to enjoin or restrict Seller's ability to sell or transfer the
Shares hereunder.
3.8 Existence. Seller has not initiated and has no intention to
initiate any liquidation, insolvency or other proceeding for the purpose of
winding up or terminating its legal existence for a period of 12 months from
the Closing Date. Neither Seller's board of directors nor its sole shareholder
has approved any such action and to the Seller's knowledge, no third party has
initiated any legal action with the purpose of causing any of the foregoing. As
far as the Seller's current directors are aware, no third party has threatened
to initiate any legal action for the purpose of causing the Seller to be wound
up or terminated. AmeriQuest undertakes that it will not institute any
liquidation of the Seller for a period of 12 months following the date of this
Agreement.
3.9 No Other Representations or Warranties. Purchaser
acknowledges and agrees that except as set forth specifically in this Article
III, neither the Seller nor AmeriQuest makes any representation or warranty as
to the business, condition (financial or otherwise) or prospects of Kenfil HK
or Kenfil Malaysia. Purchaser is purchasing the Shares subject to all
obligations of Kenfil HK and Kenfil Malaysia. Without limiting the foregoing,
no representation or warranty is given by the Seller or ArneriQuest regarding
any legal or regulatory consents which may be required by the purchaser or by
Kenfil HK or Kenfil Malaysia in each case in respect of or in consequence of
this Agreement and the transactions contemplated hereby.
3.10 Seller's and ArneriQuest's awareness. In giving the
representations and warranties contained in Sections 3.1, 3.2 (b) and 3.5,
neither the Seller nor AmeriQuest (nor any of their respective directors,
employees or agents) has made or caused to be made any inquiries whatsoever and
references to any representation or warranty being subject to the Seller's or
AmeriQuest's (or any of their directors') awareness shall be limited
accordingly.
3.11 Seller's representatives. Xxxxx Xxxxx, Xxxx Xxxxxx and Xxxxx
Xxxxxxxxx who were appointed as the directors of Kenfil HK pursuant to a
shareholders' resolution in writing dated 10th November, 1997 ("the said
resolution") have not, either alone or jointly among themselves, exercised any
power or authority, done any act or transactions in relation to any matter or
affairs of Kenfil HK or Kenfil Malaysia (other than in relation to filing
notices with the Registrar of Companies of their appointment as directors of
Kenfil HK and amendments to Kenfil HK's articles of association previously
disclosed to the Purchaser).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF PURCHASER
The Purchaser represents and warrants to Seller and AmeriQuest that:
4.1 Organization and Qualification. Purchaser is a corporation
duly organized, validly existing and in good standing under the laws of Hong
Kong.
4.2 Authority Relative to this Agreement. The Purchaser has all
requisite power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by the Purchaser and, assuming this
Agreement constitutes a valid and binding obligation of Seller, this Agreement
constitutes a valid and binding agreement of the Purchaser, enforceable against
Purchaser in accordance with its terms.
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4.3 Consent and Approvals: No Violation. As far as the Purchaser
is aware, the execution and delivery of this Agreement by the Purchaser, the
consummation of the transactions contemplated hereby or the performance by the
Purchaser of its obligations hereunder, will not:
(a) require any consent, approval, authorization or
permit of, or filing with or notification to, any governmental or regulatory
authority;
(b) conflict with, result in the breach of or constitute
a default (or give rise to any. right of termination, cancellation or
acceleration) under any of the terms, conditions or provisions of any material
note, lease, mortgage license, agreement or other instrument or obligation to
which the Purchaser is a party or by which the Purchaser or any of its assets
may be bound, except for such defaults (or rights of termination, cancellation
or acceleration) as to which requisite waivers or consents have been obtained
or which, in the aggregate, would not have a material adverse effect on the
financial condition, businesses or properties of the Purchaser; or
(c) conflict with or violate the provisions of any order,
writ, injunction, judgment, decree, statute, rule or regulation applicable to
the Purchaser, in such a manner as to result in a material adverse effect on
the financial condition, businesses or properties of the Purchaser.
4.4 Broker's Commission or Finder's Fees. No person or entity has
acted for the Purchaser or the Shareholders in connection with the transactions
provided for in this Agreement in a way which would entitle such person to, and
no person or entity is entitled to, any broker's commissions or finder's fees
(or other similar fees or commissions) in connection with this Agreement or the
transactions contemplated hereby.
4.5 Purchaser's Knowledge. Neither the Seller nor AmeriQuest
shall have any liability in respect of the warranties in clauses 3.1, 3.2 (b)
or 3.5 to the extent that the matter which would otherwise give rise to such
liability is within the actual or constructive knowledge of any of the
Purchaser, Xx. Xxxxx Xxx, or any of the Purchaser's direct or indirect
shareholders.
ARTICLE V
INDEMNIFICATION
5.1 Indemnification.
(a) Indemnification by Seller. AmeriQuest (in respect of
the warranties in clauses 3,2(a), 3.2(c), 3.3 3.6, 3.7, 3.8 and 3.11 only) and
Seller jointly and severally indemnify and hold. harmless the Purchaser and its
affiliates from and against any and all "Losses" (as defined below) incurred
by, imposed on, borne by or asserted against any of such indemnified parties in
any way relating to, arising out of or resulting from:
(i) The breach of any of the representations or
warranties made by Seller or AmeriQuest in this Agreement; and
(ii) The breach or the failure of performance by
Seller of any of the covenants, promises or agreements that it is to perform
under this Agreement.
The aggregate liability of the Seller and AmeriQuest under
this clause 5.1(a) shall not exceed the total of US $450,000 and the
Purchaser's costs and expenses of making a successful claim which are awarded
to the Purchaser by an arbitration tribunal.
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(b) Indemnification by Purchaser. The Purchaser shall
indemnify and hold harmless Seller and its affiliates from and against any and
all "Losses" (as defined below) incurred by, imposed on, borne by or asserted
against any of such indemnified parties in any way relating to, arising out of
or resulting from:
(i) The breach of any of the representations or
warranties made by the Purchaser in this Agreement; and
(ii) The breach or the failure of performance by
the Purchaser of any of the covenants, promises or agreements that it is to
perform under this Agreement.
Provided that there is no breach of the Purchaser's
undertaking in Section 8.1, the liability of the purchaser under clause 5.1,
shall not exceed the sum of US$450,000 and the Seller's and AmeriQuest's costs
and expenses of making a successful claim which are awarded to the Seller
and/or AmeriQuest by an arbitration tribunal.
(c) Definition of Losses. For purposes of this
Agreement, "Losses" shall mean any and all liabilities, obligations, losses,
damages, claims, deficiencies, penalties, taxes, levies, actions,
judgments, settlements, suits, costs, legal fees, accountants' fees,
disbursements or expenses. Losses shall exclude any amount which any party
actually receives under any insurance policy which provides coverage for the
liability in question.
5.2 Third Party Claims. Notice and Opportunity to Settle.
(a) Within thirty (30) days after the receipt by the
party entitled to indemnity hereunder (the "Indemnified Party") of any claim
or demand (including but not limited to, notice of any action, suit or
proceeding) by any third party against an Indemnified Party which gives rise to
a right to indemnification for a Loss hereunder, the affected Indemnified Party
shall give each party who may be obligated to provide indemnity hereunder (the
"Indemnifying Party") written notice of such claim or demand; provided,
however, that the failure to give such notice shall not relieve the
Indemnifying Party of its obligations hereunder except to the extent that such
failure is materially prejudicial to the Indemnifying Party.
(b) The Indemnifying Party shall have the right (without
prejudice to the right of any Indemnified Party to participate at its own
expense through counsel of its own choosing), to defend against such claim or
demand at its expense and through counsel of its own choosing (the choice of
such counsel to be subject to the reasonable consent of the affected
Indemnified Parties) and to control such defense if it gives written notice of
its intention to do so within fifteen (15) days after the receipt of the notice
referred to in Section 5.2 (a) above. If the Indemnifying Party shall decline
to assume the defense of such claim or demand, the affected Indemnified Parties
shall have the right to assume control of such defense at the expense of the
Indemnifying Party. The Indemnified Parties shall cooperate fully in the
defense of such claim or demand and shall make available to the Indemnifying
Party or its counsel all pertinent information under their control relating
thereto. The Indemnifying Party agrees to cooperate with the Indemnified
Parties in order to enable their counsel to participate in the defense and to
deliver to the Indemnified Parties copies of all pleadings and other
information within the Indemnifying Party's knowledge or possession reasonably
requested by the Indemnified Parties that is relevant to the defense of any
such claim or demand. The Indemnified Parties and their counsel shall maintain
confidentiality with respect to all such information consistent with the
conduct of a defense hereunder.
(c) The Indemnifying Party shall have the right to elect
to settle any such claim or demand, for monetary damages only and including an
unconditional release, subject to the consent of the affected Indemnified
Parties; provided, however, if the affected Indemnified Parties fail to give
such consent within twenty (20) days of being requested to do so, the affected
Indemnified Parties shall, at their
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expense, assume the defense of such claim or demand and regardless of the
outcome of such matter, the Indemnifying Party's liability hereunder shall be
limited to the amount of any such proposed settlement.
(d) In the event the Indemnifying Party assumes the
defense of a claim or demand, the Indemnified Parties shall have the right to
assume control of the defense of any claim or demand from the Indemnifying
Party at any time and to elect to settle such claim or demand; provided,
however, the Indemnifying Party shall have no indemnification obligations with
respect to such claim, demand or settlement except for the costs and expenses
of such Indemnifying Party incurred prior to the assumption of the defense of
the claim or demand by the Indemnified Parties.
5.3 Non-Third Party Claims. In the event any Indemnified Party
should have a claim against any Indemnifying Party hereunder which does not
involve a Third party Claim, the Indemnified party shall transmit to the
Indemnifying Party a written notice (the "Indemnity Notice") describing in
reasonable detail the nature of the claim, an estimate of the amount of damages
attributable to such claim and the basis of the Indemnified Party's request for
indemnification under this Agreement. If the Indemnifying Party does not notify
the Indemnified Party within thirty (30) days from the Indemnifying Party's
receipt of the Indemnity Notice that the Indemnifying Party disputes such
claim, the claim specified by the Indemnified Party in the Indemnity Notice
shall be deemed a liability of the Indemnifying Party hereunder.
5.4 Payments. Payments of all amounts owing by an Indemnifying
Party pursuant to this Article V relating to a Third Party Claim shall be made
within fifteen (15) days after the latest of (a) the settlement of such Third
Party Claim, the expiration of the period for appeal of a final adjudication of
such Third Party Claim or the expiration of the period for appeal of a final
adjudication of the Indemnifying Party's liability to the Indemnified Party
under this Agreement. Subject to Section 5.3, payments of all amounts owing by
an Indemnifying Party pursuant to this Section 5.4 shall be made within fifteen
(15) days after the later of (x) the expiration of the 30-day Indemnity Notice
period or the expiration of the period for appeal of a final adjudication of
the Indemnifying Party's liability to the Indemnified Party under this
Agreement.
ARTICLE VI
DISPUTE RESOLUTION.
6.1 Negotiation. The parties will attempt in good faith to
resolve any claim or controversy arising out of or relating to the execution,
interpretation and performance of this Agreement (including the validity, scope
and enforceability of this mediation and arbitration provision) promptly by
negotiations between the parties.
6.2 ARBITRATION.
(a) Any dispute, controversy or claim arising out of or
relating to the execution, interpretation and performance of this Agreement, or
the breach, termination or invalidity thereof shall be settled by arbitration
in accordance with the UNCITRAL Arbitration Rules and the Arbitration Ordinance
of Hong Kong as at present in force and as may be amended by the rest of this
clause.
(b) The place of Arbitration shall be in Hong Kong at the
Hong Kong International Arbitration Centre ("HKIAC").
(c) There shall not be more than three arbitrators. If
the parties fail to agree to the number of arbitrators in determining the
dispute arising from this Agreement, the number shall be one.
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(d) If a party determines to submit a dispute for
arbitration pursuant to Section 6.2, such party shall give to the other party a
notice of arbitration as provided in the UNCITRAL Arbitration rules ("the
Arbitration Notice"), which in addition to the items required by the UNCITRAL
Arbitration Rules, shall include a statement of claim, with reasonable detail,
of the dispute and the relief sought. A copy of the Arbitration Notice shall be
provided to the HKIAC along with a copy of this Agreement and a request to
appoint the Arbitrator. The commencement date of the arbitral proceedings
shall be established as provided in the UNCITAL Arbitration Rules.
(e) To the extent permissible under applicable law, the
parties agree that the award of the Arbitrator shall be final and shall be
subject only to the judicial review permitted by the Arbitration Ordinance in
Hong Kong.
ARTICLE VII
CONDITIONS PRECEDENT TO CLOSING
7.1 Conditions to the Obligations of All Parties. The respective
obligations of the parties to effect the transactions contemplated hereby shall
be subject to the satisfaction on or prior to the Closing of the following
conditions:
(a) No Action or Proceeding. No claim, action, suit
investigation or other proceeding shall be pending or threatened before any
court or governmental body that presents a substantial risk of the restraint or
prohibition of the transaction contemplated by this Agreement or the obtaining
of material damages or other relief in connection therewith.
(b) Statutes. No federal, state, local or foreign
statute, rule or regulation shall have been enacted which would make the
consummation of the transactions contemplated hereby illegal.
7.2 Further Conditions to the Obligations of the Seller. The
obligations of the Seller to effect the transactions contemplated hereby are
subject to the satisfaction on or prior to the Closing of the following
conditions, unless waived in writing by the Seller;
(a) Representations and Warranties. The representations
and warranties of the Purchaser set forth in this Agreement shall be true and
correct as of the date of this Agreement and as of the Closing as though made
at and as of the Closing.
(b) Performance of Obligations of the Purchaser. The
Purchaser shall have performed in all material respects all obligations
required to be performed by it under this Agreement prior to the Closing.
(c) Receipt of Purchaser Closing Documents and
Deliveries. Seller shall have received executed originals, dated the Closing
Date, of the Purchaser Closing Documents and Deliveries, as applicable, and
shall have received payment of the Purchase Price.
(d) Fairness Opinion. Seller shall have received from
Chase Securities, Inc. a fairness opinion in form and substance reasonably
satisfactory to Seller.
(e) Dividend. Kenfil HK shall have paid to Seller a
dividend in the amount of US$1,717,106.00 (the '"Dividend"'), the Dividend
shall have been duly approved by Kenfil HK's board of directors and the board
of directors shall have taken all such other actions as may be required under
Hong Kong law with respect to the approval and payment of the Dividend.
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7.3 Further Conditions to the Obligations of the Purchaser. The
obligation of the Purchaser to effect the transactions contemplated hereby are
subject to the satisfaction on or prior to the Closing of the following
conditions, unless waived in writing by the Purchaser;
(a) Representations and Warranties. The representations
and warranties of Seller set forth in this Agreement shall be true and correct
as of the date of this Agreement and as of the Closing as though made at and as
of the Closing.
(b) Performance of Obligations of Seller. Seller shall
have performed in all material respects all obligations required to be
performed by Seller under this Agreement prior to the Closing
(c) Receipt of Seller Closing Documents and Deliveries.
The Purchaser shall have received executed originals, dated the Closing Date,
of the Seller Closing Documents and Deliveries, as applicable.
ARTICLE VIII
ADDITIONAL UNDERTAKINGS
8.l Purchaser's Undertaking. The Purchaser undertakes that it
will not wind up or take any steps to wind up Kenfil HK and shall procure that
Kenfil HK shall not take any steps to wind up Kenfil Malaysia for a period of
at least 12 months following Closing.
8.2 Seller's Disclaimer. The Seller hereby disclaims all and any
rights it may have to use the "Kenfil" name anywhere in the world and,
particu1arly, in the United States of America, the People's Republic of China
(including Hong Kong), and Malaysia provided that it reserves the right to use
such name for the following purposes:
(a) maintaining the corporate existence of the Seller under its
pre-existing name;
(b) initiating, maintaining and defending law suits in the name of the
Seller;
(c) collecting and winding up the accounts, operations and existence
of the Seller; and
(d) any other purposes required in connection with or incidental to
any of (a), (b) or (c) above.
ARTICLE IX
GENERAL PROVISIONS
9.1 Survival of Representations and Warranties. Regardless of
the investigations, if any, any party shall have made prior to the Closing, the
representations and warranties contained herein shall survive the Closing and
will expire on the first (1st) anniversary of the Closing Date unless prior to
the stated time of expiration, a claim specifying a breach of any of the
representations or warranties described above is submitted in writing to the
indemnifying party and identified as a claim for indemnification pursuant to
this Agreement; provided that: the representations and warranties contained in
Sections 3.2(a), 3.2(c), 3.3, 3.6, 3.7, 3.8, 3.11 and 4.5 shall not expire For
the avoidance of doubt, other provisions of this Agreement conferring
continuing obligations shall survive the Closing.
9.2 Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given upon personal delivery,
facsimile transmission (with written or facsimile confirmation of
receipt), telex or delivery by a reputable overnight commercial
delivery service (delivery, postage or freight charges prepaid),
or on the fourth day following deposit in the United States mail
(if sent by registered or certified mail, return receipt
requested,
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delivery, postage or freight charges prepaid addressed to the
parties at the following addresses (or at such other address for a
party as shall be specified by like notice):
(a) if to the Purchaser, to:
c/o Mei Services Limited
Xxxx 000, 00X
Xxx Xxxxx Xxxxx
10 Ice House Street
Central
Hong Kong
(b) if to Seller, to: with a copy to.
AmeriQuest/Kenfil, Inc. Xxxxxx, Xxxx & Xxxxxxxx
000 Xxxxxx Xxxx Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000 4 Park Plaza
Attn: Xxx Xxxxxx Xxxxxx, XX 00000
Fax: (000) 000-0000 Attn: Xxxxxx X. Xxxxxx
Fax: (000) 000-0000
9.3 Interpretation. When a reference is made in this Agreement to
an Article, Section, Exhibit or Schedule, such reference shall be to an
Article, Section, Exhibit or Schedule to this Agreement unless otherwise
indicated. The words "include, "includes" and "including" when used herein
shall be deemed in each case to be followed by the words "without limitation."
The table of contents and headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
9.4 Counterparts. This Agreement may be executed by one or more
of the parties hereto on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
agreement and shall become effective when all 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..
9.5 Integration. This Agreement and the Exhibits, Schedules,
documents, instruments and other agreements among the parties hereto that are
referred to herein constitute the entire. agreement among the parties with
respect to the subject matter. set forth herein or therein and supersede all
prior agreements and understandings, both written and oral, among the parties
with respect to the subject matter hereof or thereof
9.6 Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
9.7 Governing Law. This Agreement and the rights and
obligations of the parties hereunder shall be governed in all respects,
including validity, interpretation and effect, by the laws of the Hong Kong
Special Administrative Region and the parties hereto hereby irrevocably submit
to the non-exclusive jurisdiction of Hong Kong Courts as regards any claim or
matter arising under this Agreement.
9.8 Assignment. No party hereto shall assign or transfer or
permit the assignment or transfer of this Agreement without the prior written
consent of the other parties.
9.9 Severability. Any portion or provision of the Agreement which
is invalid, illegal or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability, without affecting in any way the remaining portions or
provisions
11
hereof in such jurisdiction or, to the extent permitted by law rendering that
or any other portion or provision of the Agreement invalid, illegal or
unenforceable. in any other jurisdiction.
9.10 Attorneys' Fees. If any party to this Agreement shall bring
any action, suit, counterclaim or appeal for any relief against any other
party, declaratory or otherwise, to enforce the terms hereof or to declare
rights hereunder (collectively, an "Action"), the prevailing party shall be
entitled to recover as part of any such Action its reasonable attorneys' fees
and costs, including any fees and costs incurred in bringing and prosecuting
such Action and/or enforcing any order, judgment, ruling or aware granted as
part of such Action. "Prevailing party" within the meaning of this section
includes, without limitation, a party who agrees to dismiss an Action upon the
other party's payment of all or a portion of the sums allegedly due or
performance of the covenants allegedly breached, or who obtains substantially
the relief sought by it. Each party shall bear its own costs and expenses in
relation to the preparation and execution of this Agreement.
9.11 Seller's Further Assurances. From time to time after the date
of this Agreement, Seller will execute and deliver to Purchaser such
instruments of sale, transfer, conveyance, assignment and delivery, consent,
assurance, powers of attorney and other instruments as may be reasonably
requested by Purchaser in order to vest in Purchaser good and marketable title
in and to the shares and otherwise in order to carry out the purpose and intent
of this Agreement.
9.12 Purchaser's Further Assurances. From time to time after the
date of this Agreement, Purchaser will execute and deliver to Seller such
instruments of sale, transfer, conveyance, assignment and delivery, consent,
assurance, powers of attorney and other instruments as may be reasonably
requested by Seller in order to carry out the purpose and intent of this
Agreement.
9.13 Process Agent. Seller and AmeriQuest will, as soon as
practicable, irrevocably appoint a process agent in Hong Kong to receive in
Hong Kong, for them and on their behalf, service of process in any legal action
or proceedings arising out of or in connection with this Agreement. Seller and
AmeriQuest agree that any writ, summons, order, judgment or other notice of
legal process shall be deemed sufficiently served on them if delivered to the
process agent at its office in Hong Kong for the time being (whether or not it
is not forwarded to or received by the appointee). Seller and AmeriQuest agree
and undertake that they will hereafter maintain a process agent in Hong Kong
for the purpose of this Agreement for a period of three years after Closing.
IN WITNESS WHEROF, the parties hereto have executed this Agreement as
of the day and year first above written.
AMERIQUEST/KENFIL, INC.
By:
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Name:
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Its:
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AMERIQUEST TECHNOLOGIES, INC.
By:
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Name:
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Its:
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REGENTLAND HOLDINGS LTD.
By:
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Name:
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Its:
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