EXHIBIT 2.1
ASSET PURCHASE AGREEMENT
by and among
IA GLOBAL, INC.
and
IA GLOBAL ACQUISITION CO.
and
NANOCAT TECHNOLOGIES PTE LIMITED
dated as of
9 February , 2005
TABLE OF CONTENTS
1. DEFINITIONS................................................................4
2. PURCHASE AND SALE..........................................................8
2.1. Purchase and Sale of Assets.........................................8
2.2. Incidental Rights and Assets........................................9
2.3. Assumed Liabilities.................................................9
2.4. Retained Liabilities................................................9
2.5. Agreement to Purchase...............................................9
2.6. Consideration......................................................10
2.7. Liquidation of the Company.........................................11
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND IAO.....................11
3.1. Organization.......................................................11
3.2. Authorization, Execution and Enforceability........................11
3.3. Absence of Restrictions, Conflicts and Required Consents...........11
3.4. Restriction on Assignment or Sale of Assets........................11
3.5. Ownership of Assets and Related Matters............................11
3.6. Legal Proceedings..................................................12
3.7. Compliance with Legal Requirements.................................12
3.8. Intellectual Property..............................................12
3.9. Disclosure.........................................................13
3.10. Disclosure.........................................................14
3.11. Disclaimer of Other Representations and Warranties.................14
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER...............................14
4.1. Organization.......................................................14
4.2. Authorization, Execution and Enforceability........................14
4.3. Absence of Restrictions, Conflicts and Required Consents...........14
5. CERTAIN COVENANTS AND AGREEMENTS..........................................15
5.1. Access and Information.............................................15
5.2. Conduct of Business Pending Closing................................15
5.3. Notice; Efforts to Remedy; Reports.................................16
5.4. Taxes..............................................................16
5.5. Further Assurances.................................................16
5.6. Public Statements..................................................16
6. CONDITIONS PRECEDENT TO THE CLOSING.......................................16
6.1. Conditions to Each Party's Obligations.............................16
6.2. Conditions to the Obligations of the Company.......................17
6.3. Conditions to the Obligations of Purchaser.........................17
7. CLOSING...................................................................18
7.1. Closing Date.......................................................18
7.2. Closing Steps......................................................18
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8. INDEMNIFICATION...........................................................18
8.1. Survival...........................................................18
8.2. Indemnification Provisions for Benefit of the Purchaser............19
9. TERMINATION...............................................................19
9.1. Termination........................................................19
9.2. Effect of Termination..............................................20
10. NOTICES...................................................................20
11. MISCELLANEOUS.............................................................21
11.1. Attachments........................................................21
11.2. Entire Agreement...................................................21
11.3. Disclosure Schedules...............................................22
11.4. Enforcement of Agreement...........................................22
11.5. Succession and Assignment..........................................22
11.6. Number; Gender.....................................................22
11.7. Captions 22
11.9. Controlling Law; Integration; Amendment; Certain
Construction Rules...............................................22
11.9. Counterparts; Execution and Delivery of Signature Pages............23
11.10. No Third Party Beneficiary.........................................23
11.11. Waiver 23..........................................................23
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement"), is made and entered
into effective this 9th day of February, 2005, by and among IA GLOBAL, INC., a
corporation organized and existing under the laws of the State of Delaware
("IAO"), IA GLOBAL ACQUISITION CO., a corporation organized and existing under
the laws of that same state ("Company") and NANOCAT TECHNOLOGIES PTE LIMITED,
Reg No. 200206435N a corporation registered under the laws of the Republic of
Singapore ("Purchaser"). Each of IAO, the Company and the Purchaser shall
hereinafter be referred to individually as a "Party" and collectively as
"Parties".
W I T N E S S E T H T H A T :
WHEREAS, QuikCAT Australia Pty Limited of 0/00 Xxxxx Xxxxxx, Xxxx Xxxxx
XX 0000, Xxxxxxxxx ABN 82 106 946 043 ("QuikCAT Australia"), IAO and the Company
are parties to a non-binding letter agreement dated December 20, 2004 ("Letter
Agreement") which describes, subject to longer form definitive agreements to be
negotiated by them in good faith, the general terms on which the Purchaser will
acquire or have assigned to it certain of the assets or rights of the Company,
including:
(a) all assets and rights acquired by IAO from XxxxXXX.XXX Inc, a Delaware
corporation (being the then Debtor-In-Possession in Case No. 03-12179-H in the
United States Bankruptcy Court for the Northern District of Ohio), pursuant to
the Asset Purchase Agreement between those parties dated 13 April 2004 and
approved by that court (the "Bankruptcy Assets");
(b) any and all rights, including Intellectual Property rights or rights to
acquire Intellectual Property rights, obtained by IAO under the ICG Security
Documentation executed by Innovative Computing Group, Inc, a corporation
organized and existing under the laws of the State of Ohio ("ICG"), in favour of
IAO and dated 5 February 2004 (the "Miliki Supercompressor Rights"); and
(c) any additions, developments and modifications to the assets and rights of
the Company (including but not limited to the Bankruptcy Assets, the Kyocera
Project and the Miliki Supercompressor Rights (also known as "Shrink")); and
(d) all right, title and interest of the Company in certain agreed Contracts.
WHEREAS, the Parties desire to formalise the Letter Agreement by
entering into this Agreement pursuant to which the Company proposes to sell to
the Purchaser, and the Purchaser proposes to purchase, or have assigned to it,
the assets and rights referred to above and assume certain of the accounts
payable and other contractual liabilities and obligations of the Company as set
out in this Agreement.
WHEREAS, the Parties wish to make certain other agreements and
undertakings;
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NOW, THEREFORE, in consideration of the premises and the mutual
promises and agreements contained herein, the Parties hereto, intending to be
legally bound, hereby agree as follows:
1. DEFINITIONS.
For purposes of this Agreement, the following terms shall have the
following meanings:
"Affiliate" of any Person (as hereinafter defined) means (i) any
director, officer or employee of such Person, (ii) any direct or indirect holder
of five percent (5%) or more of the outstanding capital stock of such Person,
(iii) any spouse, parent, sibling, or descendant of such Person, (iv) any trust,
partnership, limited partnership or limited liability company, in whole or in
part, for the benefit of, or owned by, such Person or any Person specified in
clauses (i), (ii) or (iii) hereof, and (v) any other Person that, directly or
indirectly, controls, is controlled by or is under common control with such
Person. For the purposes of this definition, "control" (including with
correlative meanings, the terms "controlling," "controlled by," and "under
common control with") as applied to any Person, means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of that Person, whether through ownership of voting securities or
by contract or otherwise.
"Ancillary Documents" means, collectively, the Company Ancillary
Documents (as defined below) and the Purchaser Ancillary Documents (as defined
below).
"Assets" has the meaning given to it in clause 2.1.
"Bankruptcy Assets" has the meaning given to it in paragraph (a) of the
preamble to this Agreement.
"Breach" means any violation or breach of, any misrepresentation or
inaccuracy in, any default under, any conflict with, or any failure to perform
or comply with any representation, warranty, covenant, obligation or other
provision of, or any event which results in Liability or Encumbrance under this
Agreement or any Ancillary Document, any Contract any Governing Document or
other instrument or any event which with the passing of time or the giving of
notice, or both, would constitute such a violation, breach, misrepresentation,
inaccuracy, default, conflict or failure. When used with respect to this
Agreement or any Ancillary Document, a "Breach" will also be deemed to include
any occurrence or circumstance that is or was inconsistent with any
representation, warranty, covenant, promise, obligation, duty under, or other
provision of, this Agreement or such Ancillary Document, respectively.
"Business" means the business of the Company in providing software that
accelerates the transfer of data using the Internet and compresses data for the
purposes of storage, and includes commercial activities concerning the use or
exploitation of the Assets and the performance of the Assumed Contracts.
"Business Day" means any day on which banks are not required to trade
or authorized to close in Fairfax, Virginia.
"Closing" has the meaning given to it in clause 7.1.
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"Closing Date" has the meaning given to it in clause 7.1.
"Company Ancillary Document" means each certificate, agreement,
document and instrument executed and delivered by the Company in connection with
the Contemplated Transactions.
"Consent" means any consent, approval, ratification, registration,
filing, application, notice, transfer, qualification, waiver or authorization of
any kind of any Person.
"Contemplated Transactions" means such transactions as are required to
be consummated by the Parties hereto pursuant to this Agreement and the
Ancillary Documents.
"Contract" means any contract, agreement, purchase order, mortgage,
promissory note, deed to secure debt, deed of trust, debt instrument, lease,
easement, franchise, lease, license, commitment, arrangement, warranty,
undertaking or understanding to which any Person is a party or bound or to which
his, her or its property is subject, whether written or oral, and including each
and every amendment, modification or supplement to any of them.
"Customary Enforceability Limitations" means bankruptcy, insolvency or
other similar laws affecting the enforcement of creditors' rights generally and
general principles of equity (regardless of whether enforcement is sought or
considered in a Proceeding in equity or at law).
"Disclosure Schedule" means each Schedule which relates to a
representation or warranty herein by any Party.
"Encumbrance" means any charge, claim, condition, equitable interest,
encumbrance, lien, option, pledge, security interest, mortgage, right of way,
easement, encroachment, servitude, right of first option, right of first refusal
or restriction of any kind, including any restriction on use, voting (in the
case of any security), transfer, receipt of income, or on the exercise of any
other attribute of ownership.
"Exhibit" means each written document which is labeled as an "Exhibit"
or which is attached to and referenced in a written document labeled as an
"Exhibit," and which is attached to, or placed underneath or adjacent to, the
executed version of this Agreement.
"Governing Documents" means, (a) with respect to the Company, the
Company's certificate of incorporation and bylaws; (b) with respect to the
Purchaser, the Purchaser's certificate of incorporation and bylaws; and (c) with
respect to the Company or the Purchaser or any other Person (other than an
individual natural person), any other indenture, trust, charter or similar
document adopted or filed in connection with the creation, formation or
organization of such Person; all securityholders' agreements, voting agreements,
voting trust agreements, joint venture agreements, registration rights
agreements or other agreements or documents relating to the organization,
management or operation of such Person, or relating to the rights, duties and
obligations of the stockholders, members, beneficiaries, trustees, partners or
other Persons having legal or beneficial interests in such aforementioned
Persons; and any amendment or supplement to any of the foregoing.
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"Governmental Authorization" means any Consent, license, registration,
plan, certificate or permit issued, granted, given or otherwise made available
by or under the authority of any Governmental Body (as defined below) or
pursuant to any Legal Requirement (as defined below).
"Governmental Body" means, with respect to any Jurisdiction (as defined
below) or combination of Jurisdictions, (i) any federal, state, local,
municipal, foreign or other government; governmental or quasi-governmental
authority of any nature (including any agency, branch, department, board,
commission, court, tribunal or other entity exercising governmental or
quasi-governmental powers); (ii) any multi-national organization or body; (iii)
any body exercising, or entitled to exercise, any administrative, executive,
judicial, legislative, police, regulatory or taxing authority or power over such
Jurisdiction, with respect to its Persons, properties or otherwise; and (iv) any
official of any of the foregoing.
"ICG Letter Agreement" means the letter agreement by and between IAO
and ICG dated 5 February 2004.
"ICG Security Agreement" means the Security Agreement dated 5 February
2004 between ICG and IAO executed in conjunction with the issuance of the
Secured Promissory Note.
"ICG Security Documentation" means the ICG Security Agreement, ICG
Letter Agreement and Secured Promissory Note.
"Intellectual Property" means (a) all discoveries, innovations,
inventions and all improvements thereto and all classes and types of patents,
including, without limitation, utility models, utility patents and design
patents, and all patent applications and patent disclosures, together with all
reissuances, continuations, continuations-in-part, revisions, extensions, and
reexaminations thereof, (b) all registered and unregistered trademarks, service
marks, trade dress and logos, including all goodwill associated therewith, and
all applications, registrations, and renewals in connection therewith, (c) all
works of authorship and all copyrights therein, whether such works are published
or unpublished works, and all applications, registrations and renewals in
connection therewith, (d) all trade secrets, know-how, product prototypes, and
all proprietary, technical and non-technical data and information, including,
without limitation, customer lists, supplier lists, pricing and cost
information, business and marketing plans and other confidential business
information, (e) all computer programs and related code and software other than
commercially available "off-the-shelf" software, (f) all domain name
registrations and URL addresses, (g) all other recognizable equivalent
proprietary rights, and (h) all copies and tangible embodiments of the
foregoing, whether arising under the laws of the United States or any other
Jurisdiction.
"Internet Accelerator Agreement Deed of Variation" shall mean the deed
of variation to the Internet Accelerator Agreement between IAO, the Company and
QuikCAT Australia dated the same date as this Agreement.
"Jurisdiction" means any nation, state, commonwealth, judicial circuit,
region, county, city, town, village, district or other jurisdiction;
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"Knowledge": An individual natural person shall be deemed to have
"Knowledge" of a particular fact or other matter if:
(a) such individual natural person is actually aware of such fact or
other matter; or
(b) a prudent individual natural person in a similar position could be
expected to discover or otherwise become aware of such fact or other matter in
the course of conducting a reasonable investigation regarding the accuracy of
any representations or warranties contained in this Agreement, which
investigation such prudent individual natural person shall be deemed to have
conducted.
A Person (other than an individual natural person) will be deemed to have
"Knowledge" of a particular fact or other matter if any individual natural
person who is serving, or who has at any time served, as a director, officer,
partner, manager, executor or trustee of such Person (or in any similar
capacity) has, or at any time had, Knowledge of such fact or other matter (under
the standards set forth in clauses (a) and/or (b) above), provided that in the
case of each of IAO and the Company such Persons shall be deemed to have
"Knowledge" of a particular fact or other matter only if Xxxx Xxxxxxxxxx or Xxxx
Xxxxx has Knowledge of such fact or matter under the standards set forth in
clauses (a) and/or (b) above.
"Legal Requirement" means any federal, state, local, municipal,
foreign, international, multinational or other constitution, law, statute, rule,
regulation, ordinance, principle of common law or treaty.
"Letter Agreement" has the meaning given to it in the preamble to this
Agreement.
"Liability" means, with respect to any Person, any claim, loss
(including diminution in value), cost, expense, penalty, fine, judgment, damage,
liability, loss of rights, or obligation of such Person of any kind, character
or description, whether known or unknown, absolute or contingent, accrued or
unaccrued, asserted or unasserted, 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 and whether or
not involving a third party claim.
"Material Adverse Effect" means any state of facts, event, development,
change or effect that either individually or together with any other state(s) of
fact, event(s), development(s), change(s) or effect(s) has had or could
reasonably be expected to have, a material adverse effect on the Assets taken as
a whole, or which could reasonably be expected to prevent or materially delay
the consummation of the Contemplated Transactions.
"Miliki Supercompressor Rights" has the meaning given to it in
paragraph (c) of the preamble to this Agreement.
"Non-Governmental Authorisation" has the meaning given to it in clause
3.6.
"Notice" has the meaning given to it in clause 9.
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"Order" means any order, injunction, judgment, decree, ruling, writ or
arbitration award of any Governmental Body or arbitrator.
"Ordinary Course of Business" means any action taken by the Company
with respect to the Business if such action is similar in nature, scope and
magnitude to actions customarily taken, without any separate or special
authorization, in the ordinary course of the normal day-to-day operations of
other Persons that are in the same line of business as the Business.
"Person" means any individual natural person and any partnership,
limited liability company, corporation, trust, government agency or governmental
subdivision and any other legal entity.
"Proceeding" means any claim, action, arbitration, audit, hearing,
investigation of which the Person making a representation or warranty has
Knowledge, litigation or suit (whether civil, criminal, administrative or
judicial, whether formal or informal, and whether public or private) commenced,
brought, conducted, or heard by or before, any Governmental Body or arbitrator,
or which seeks or requests the issuance of an Order.
"Purchase Price" has the meaning given to it in clause 2.6.2.
"Purchaser Ancillary Document" means each certificate, agreement,
document and instrument executed and delivered by the Purchaser in connection
with the Contemplated Transactions.
"Purchaser Security Agreement" means an agreement between the Purchaser
and IAO creating a first priority security over the Assets in favour of IAO in
the form contemplated in clause 2.6.
"Secured Promissory Note" means the secured promissory note executed by
ICG in favour of IAO dated 5 February 2004.
"Share Sale Agreement Deed of Variation" means the deed of variation to
the Share Sale Agreement between IAO, the Company, QuikCAT Australia and
Xxxxx-Xxxx Pontre dated the same date as this Agreement.
"Taxes" means all taxes, assessments, charges, duties, fees, levies or
other governmental charges (including interest, penalties or additions
associated therewith) and all other taxes of any kind for which a Person may
have any Liability imposed by a Governmental Body, whether disputed or not.
"Uncured Breach" means, with respect to any Breach of any
representation, warranty, covenant or agreement in this Agreement, a Breach
which is not cured within ten (10) Business Days following the receipt by the
Breaching Party of notice of such Breach.
2. PURCHASE AND SALE.
2.1. Purchase and Sale of Assets. Subject to the terms and conditions
of this Agreement, at the Closing Date, the Company shall grant, sell, convey,
assign, transfer and
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deliver to the Purchaser, and the Purchaser shall purchase, acquire and accept
from the Company, all of the Company's right, title and interest in and to:
2.1.1. the Bankruptcy Assets;
2.1.2. the Miliki Supercompressor Rights;
2.1.3. those additions, modifications and developments to the
above assets and rights of the Company that are the property of the Company as
at the date of this agreement and any further additions, modifications and
developments to the above assets and rights of the Company between the date of
this agreement and the Closing Date, as collectively to be documented by the
Parties in a document to be entitled "Agreed Additions, Modifications and
Developments prior to Closing" and initialed by the parties for identification
on Closing,
whether those rights are real, personal and mixed, tangible or intangible and
wherever situated (which assets, properties and rights are hereinafter
collectively referred to as the "Assets"), free and clear of any Encumbrances
other than the Assumed Liabilities.
2.2. Incidental Rights. Without limiting clause 2.1 above, the Parties
agree that the Assets shall include:
2.2.1. Without compromise to the obligation on the Company to deliver
the Assets free from any Encumbrance pursuant to clause 2.1, all rights to
causes in action, lawsuits, judgments, claims and demands of any nature
available to or being pursued by the Company with respect to the Assets or the
ownership, use, function or value of any Asset, whether arising by way of
counterclaim or otherwise; and
2.2.2. All rights in and under all express or implied
guarantees, warranties, representations, covenants, indemnities and similar
rights in favor of the Company relating to any Asset, and all rights to proceeds
under insurance policies with respect to any Asset.
2.3. Assumed Liabilities. Except as set forth in this Section 2.3, the
Purchaser shall not assume any Liabilities of the Company, whether or not
related to the Assets. As the sole exception to the foregoing, on the Closing
Date, the Purchaser shall assume and agree to discharge only the following
specifically enumerated obligations and liabilities of the Company
(collectively, the "Assumed Liabilities"):
2.3.1. Any Liability arising from the ownership, use or
operation of any Asset by the Purchaser after the Closing Date.
2.4. Retained Liabilities. "Retained Liabilities" shall mean every
Liability of the Company other than the Assumed Liabilities. All of the Retained
Liabilities shall remain the sole responsibility of and shall be retained, paid,
performed and discharged solely by the Company.
2.5. Agreement to Purchase. On the Closing Date, the Purchaser shall
purchase the Assets from the Company and assume the Assumed Liabilities, upon
and subject to the terms
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and conditions of this Agreement and in reliance on the representations,
warranties and covenants of the Company contained herein.
2.6. Consideration.
2.6.1. Deposit. The Purchaser shall deliver a deposit to the
Company of $25,000 by wire transfer of immediately available U.S. funds on
execution of this Agreement (the "Deposit"), which for the avoidance of doubt
comprises that part of the Purchase Price referred to in clause 2.6.2(a) below.
The deposit will be non-refundable unless: (1) this Agreement does not close due
to lack of good faith by or the default of the Company or IAO, or (2) any event
occurs or circumstance arises in relation to the Company subsequent to the date
of this Agreement and prior to Closing that has a Material Adverse Effect.
2.6.2. Purchase Price. On the terms and subject to the
conditions set forth in this Agreement, in consideration of the transfer of the
Assets and the other undertakings of the Company hereunder, the purchase price
(the "Purchase Price") for the Assets (in addition to the Purchaser's assumption
of the Assumed Liabilities, the variations described in sub-clause 2.6.4 below
and the creation of the security described in sub-clause 2.6.5 below) shall be
$650,000 comprised and paid by the Purchaser to the Company by wire transfer of
immediately available U.S. funds as follows (subject to satisfaction of the
conditions precedent described in clause 6 in so far as (b) through (e) below
are concerned):
(a) the Deposit, in accordance with clause 2.6.1 above;
(b) $105,000 on Closing;
(c) $220,000, within 15 days after Closing;
(d) $100,000, within 60 days after Closing; and
(e) $200,000, within 75 days after closing.
2.6.3. Deeds of Variation. Each Party agrees:
(a) to the extent it is a party, to execute; and
(b) otherwise, to use its best endeavours to procure the
execution of,
the Internet Accelerator Agreement Deed of Variation and the
Share Sale Agreement Deed of Variation, and comply with the terms set out in
those deeds in so far as those terms concern it as though a right, obligation or
undertaking affecting it under those deeds was a right, obligation or
undertaking affecting it under this Agreement.
2.6.4. Purchaser Security Agreement. The Purchaser will
promptly following Closing grant to IAO, if requested by IAO prior to or on the
Closing Date, a first priority, perfected security interest in the Assets to be
discharged when all installments of the Purchase Price are paid. Costs
associated with the Purchaser Security Agreement, including without
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limitation those associated with negotiation and execution or any Taxes levied
on or in respect of it or any supply made or deemed to be made under it, will be
paid by IAO.
2.7. Deactivation of the Company. IAO agrees to make best efforts to
deactivate Company no later than 31 December 2005.
3. REPRESENTATIONS AND WARRANTIES OF the coMPANY aND IAO.
Each of IAO and the Company jointly and severally hereby represent and
warrant to the Purchaser as follows:
3.1. Organization. Each is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
all requisite corporate power and authority to enter into and perform this
Agreement and the Company Ancillary Documents. IAO and the Company are each duly
qualified to transact business and are in good standing as foreign corporations
in each such Jurisdiction in which they are doing business.
3.2. Authorization, Execution and Enforceability. Each has all
corporate power to execute and deliver this Agreement and will have all
corporate authority necessary to consummate the Contemplated Transactions. This
Agreement has been duly and validly executed and delivered by IAO and the
Company, and assuming that this Agreement constitutes a valid and binding
agreement of the Purchaser, constitutes a valid and binding agreement on IAO and
the Company, enforceable against each of them in accordance with its terms,
except as such enforceability may be limited by Customary Enforceability
Limitations.
3.3. Absence of Restrictions, Conflicts and Required Consents. Neither
the execution and delivery of this Agreement by IAO or the Company, the
performance of its obligations hereunder nor the consummation of the
Contemplated Transactions will (a) conflict with or result in any breach of any
provision of their respective certificates of incorporation or bylaws, (b)
assuming that all consents, approvals and notices contemplated by this Agreement
have been obtained and all filings described therein have been made, (i)
conflict with or violate any Legal Requirement or Order or other binding
requirements of any Governmental Body applicable to them or by which their
properties are bound or affected; or (ii) result in any Breach or violation of
or constitute a default (or an event which with or without notice or lapse of
time or both could become a default) or result in the loss of a material benefit
under, or give rise to any right of termination, amendment, acceleration or
cancellation of, or result in the creation of an Encumbrance on any of the
properties or assets of IAO or the Company pursuant to any bond, Contract,
permit or other instrument or obligation to which either of them is a party or
by which either of them or any of their properties are bound or affected.
3.4. Restriction on Assignment or Sale of Assets . The Company warrants
that it is not aware of any restriction on assignment or sale of any Asset which
might reasonably be anticipated to impede the assignment or sale of that Asset
or any Government Authorization or Non-Government authorization that is required
to enable such assignment or sale to take place.
3.5. Ownership of Assets and Related Matters. The Company has good,
marketable and valid title to the Assets and each Asset is free and clear of any
Encumbrance. On the Closing Date, the Purchaser shall acquire all of the
Company's right, title and interest in, to
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and under (subject to such being assumed and assigned in accordance herein), all
of the Assets, in each case free and clear of Encumbrances other than the
Assumed Liabilities. Without limitation to the foregoing, the Company has
acquired from IAO and as at the date of this Agreement has good, marketable and
valid title to the Assets, free and clear of any Encumbrance.
3.6. Legal Proceedings. There are no pending Proceedings relating to or
involving the Assets or the Assumed Liabilities and, to the Knowledge of the
Company, no such Proceeding is threatened. No event has occurred or circumstance
exists that may (with or without notice or the passing of time or both) give
rise to or serve as the basis for any Proceeding against or involving or
relating to the Assets or the Assumed Liabilities that is likely to have a
Material Adverse Effect.
3.7. Compliance with Legal Requirements. The Company is in compliance
in all material respects with all applicable Legal Requirements to which the use
of the Assets is subject. The Company is neither presently charged with, and the
Company has not received any notice (whether written or oral) of, any actual or
alleged violation of any Legal Requirement involving or relating to the Assets,
nor under governmental investigation with respect to any such actual or alleged
violation.
3.8. Intellectual Property.
3.8.1. The Company owns, free and clear of all Encumbrances,
and has the right to convey, assign, transfer and deliver to the Purchaser
pursuant to clause 2, all of the Intellectual Property comprised in the Assets
("Assigned Intellectual Property").
3.8.2. Without limitation to 3.8.1, the Company warrants that
to the Knowledge of the Company:
(a) the Miliki Supercompressor Rights created in favour of IAO
under the ICG Security Documentation have, in their entirety and without
reservation, exclusion or exception, been assigned by IAO to the Company;
(b) the assignment referred to in sub-clause (a) above was
valid and permitted by all instruments previously dealing with or affecting the
creation, transfer and conveyance of the Miliki Supercompressor Rights,
including the ICG Security Documentation;
(c) it is as at the date of this Agreement the owner, free and
clear of all Encumbrances, and has the right to convey, assign, transfer and
deliver to the Purchaser pursuant to clause 2, the Miliki Supercompressor Rights
including any rights by which exercise the Miliki Supercompressor Rights may be
crystallised;
(d) there will, upon Closing, be no legal or other impediment
to the exercise by the Purchaser of all rights enjoyed by the Company under ICG
Security Documentation immediately prior to Closing and to the full extent that
those rights were so enjoyed by the Company; and
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(e) an Event of Default (as that term is used in the Secured
Promissory Note) exists as at the date of this Agreement and that Event of
Default entitles the Company to without further contingency or act, omission or
default of ICG or Xx Xxxxxxxx X. Xxxx, exercise its rights to the release of the
Security (as that term is defined in the ICG Letter Agreement) and the
Collateral (as that term is defined in the ICG Security Agreement) and
immediately enjoy the perpetual license to any patents to which that Security
relates, in the manner described in paragraph 3(b)(iii) of the ICG Letter
Agreement.
3.8.3. To the Knowledge of the Company no Proceedings are
pending and none have been threatened against the Company by any Person with
respect to the Company's use of any of the Assigned Intellectual Property, or
challenging or questioning the validity or enforceability of any Contract
relating to the same. To the Knowledge of the Company the current use by the
Company of the Assigned Intellectual Property does not infringe or violate the
rights of any Person.
3.8.4. To the Knowledge of the Company the Company is not
obligated to make any payments by way of royalties, fees or otherwise to any
owner, licensor, or other claimant to any Intellectual Property rights for use
of the Assigned Intellectual Property.
3.8.5. The Company has not received any communications
alleging that it has Breached any Intellectual Property rights of any Person,
nor, upon due inquiry, is the Company aware of any basis for the foregoing. To
the Knowledge of the Company the Assigned Intellectual Property does not
infringe the Intellectual Property rights of any Person.
3.8.6. The execution, delivery and performance of this
Agreement will not constitute a Breach of any license or other Contract
involving the Assigned Intellectual Property, nor will it cause or give a right
of forfeiture or termination of any Assigned Intellectual Property.
3.8.7. To the Knowledge of the Company there is no
unauthorized use, infringement, or misappropriation of any of the Assigned
Intellectual Property by any Person, including any employee, former employee,
independent contractor, or consultant of the Company. The Company has taken
reasonable and practicable steps designed to safeguard and maintain the secrecy
and confidentiality of, and the proprietary rights in and to the Assigned
Intellectual Property. To the Knowledge of the Company each person having access
to or developing the Assigned Intellectual Property or otherwise performing
services, directly or indirectly, for the Company, have executed and delivered
an agreement regarding the protection of proprietary information of the Company,
and an assignment to the Company of all Intellectual Property rights arising
from the services performed by such Persons to the extent not already provided
for under applicable Legal Requirements. To the Knowledge of the Company no
current or prior officer, employee or consultant of the Company claims or has a
right to claim an ownership interest in any of the Assigned Intellectual
Property as a result of having been involved in the development or licensing of
any such rights while employed by or consulting to the Company.
3.9. Disclosure. The Company has made such written enquiries of Xx Xxx
Xxxx, Xxxxxx Xxxxxx and Xxxx Xxxxxx as a prudent individual natural person in
the position of the Company would be expected to make in the course of
conducting a reasonable investigation regarding
13
the accuracy of any representations or warranties contained in this Agreement,
and has provided a copy of the written responses to the Purchaser.
3.10. Disclosure. No representation or warranty or other statement made
by the Company in this Agreement (including the Schedules hereto) or in any
Company Ancillary Document contains any untrue statement of fact or omits to
state a fact required to be stated herein or therein or necessary to make the
statements contained herein or therein not misleading.
3.11. Disclaimer of Other Representations and Warranties. EXCEPT AS
EXPRESSLY SET FORTH IN THIS ARTICLE 3, THE COMPANY MAKES NO REPRESENTATION OR
WARRANTY, EXPRESS OR IMPLIED, AT LAW OR IN EQUITY, IN RESPECT OF ANY OF ITS
ASSETS (INCLUDING THE "ASSETS"), LIABILITIES OR OPERATIONS, INCLUDING, WITH
RESPECT TO MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, OR
NON-INFRINGEMENT, AND ANY SUCH OTHER REPRESENTATIONS OR WARRANTIES ARE HEREBY
EXPRESSLY DISCLAIMED. PURCHASER HEREBY ACKNOWLEDGES AND AGREES THAT, EXCEPT TO
THE EXTENT SPECIFICALLY SET FORTH IN THIS ARTICLE 3, PURCHASER IS PURCHASING THE
ASSETS ON AN "AS-IS" BASIS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING,
THE COMPANY MAKES NO REPRESENTATION OR WARRANTY REGARDING ANY ASSETS OTHER THAN
THE "ASSETS" AND NONE SHALL BE IMPLIED IN LAW OR IN EQUITY.
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
The Purchaser hereby represents and warrants to the Company as follows:
4.1. Organization. The Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the Republic of
Singapore and has all requisite corporate power and authority to own, lease and
operate its properties and to carry on its business as now being conducted. The
Purchaser is duly qualified to transact business and is in good standing as a
foreign corporation in each jurisdiction where the character of its activities
requires such qualification.
4.2. Authorization, Execution and Enforceability. The Purchaser has all
corporate power and authority necessary to execute and deliver this Agreement
and to consummate the Contemplated Transactions. The execution and delivery of
this Agreement and the consummation of the Contemplated Transactions have been
duly and validly authorized by all necessary corporate proceedings on the part
of the Purchaser. This Agreement has been duly and validly executed and
delivered by the Purchaser, and, assuming that this Agreement constitutes a
valid and binding agreement of the Company and IAO, constitutes a valid and
binding agreement of the Purchaser, enforceable against the Purchaser in
accordance with its terms, except for Customary Enforceability Limitations.
4.3. Absence of Restrictions, Conflicts and Required Consents. Neither
the execution and delivery of this Agreement by the Purchaser, the performance
of its obligations hereunder, nor the consummation of the Contemplated
Transactions will (a) conflict with or
14
result in any breach of any provision of the Purchaser's certificate of
incorporation or bylaws, (b) assuming that all consents, approvals and notices
contemplated by this Agreement have been obtained and all filings described
therein have been made, (i) conflict with or violate any Legal Requirement or
Order or other binding requirements of any Governmental Body applicable to the
Purchaser or by which its properties are bound or affected; or (ii) result in
any Breach or violation of or constitute a default (or an event which with or
without notice or lapse of time or both could become a default) or result in the
loss of a material benefit under, or give rise to any right of termination,
amendment, acceleration or cancellation of, or result in the creation of an
Encumbrance on any of the properties or assets of the Purchaser pursuant to any
bond, Contract, permit or other instrument or obligation to which the Purchaser
is a party or by which the Purchaser or any of its properties are bound or
affected.
5. CERTAIN COVENANTS AND AGREEMENTS.
Each of the Parties hereto shall comply with the following covenants
and agreements to the extent applicable to such Party (unless compliance is
hereafter waived in writing in accordance with this Agreement):
5.1. Access and Information. Prior to the Closing Date, the Purchaser
may make such investigation of the Assets, the Business, any of the Contracts of
the Company and the Company as the Purchaser may desire and, upon reasonable
notice, the Company shall give to the Purchaser and its counsel, accountants and
other representatives reasonable access, during normal business hours throughout
the period prior to the Closing, to all properties, equipment, Contracts, books
and records, and other information relating to the Business, and the Company
shall furnish to the Purchaser and its counsel, accountants and other
representatives all copies of documents and information relating to the Business
as such Persons may reasonably request, provided, however, that (i) any such
access shall be conducted in such a manner so as not to interfere unreasonably
with the operation of the Business and shall be at the expense of the Purchaser,
(ii) the Company shall not be required to take any action which would constitute
a waiver of the attorney-client privilege, and (iii) the Company need not supply
the Purchaser with any information which the Company is under a legal obligation
not to supply, and (iv) the Purchaser shall use its reasonable endeavours to
conduct such investigations, and the Company shall use its reasonable endeavours
to assist and facilitate those investigations occurring, promptly.
5.2. Conduct of Business Pending Closing. From the date of this
Agreement to the date that all of the Assets have been transferred to the
Purchaser (the "Transfer Date"), which date shall in no event be later than five
(5) days following the Closing Date, the Company shall Carry on the Business in
the Ordinary Course of Business as previously conducted, not enter into any
Contract which in any material way diminishes the ability of the Purchaser to
derive full commercial benefit subsequent to Transfer Date from the use and
enjoyment of the Assets or which otherwise gives rise to a Material Adverse
Change, not transfer, license or permit to lapse any rights to the use of any of
the Assigned Intellectual Property, and not take any action, or omit to take any
action, which would cause any of the representations or warranties in Section 3
to be untrue or incorrect in any respect; and not authorize any of, or commit or
agree to take any of, the foregoing actions that the Company has agreed not to
take.
15
5.3. Notice; Efforts to Remedy; Reports. Each Party shall promptly give
Notice to the other Party upon becoming aware of the impending occurrence of any
event which would cause or constitute a Breach of any of the representations,
warranties or covenants of such Party contained in this Agreement and shall use
commercially reasonable efforts to prevent or promptly remedy the same. During
the period from the date of this Agreement to the Closing Date, the Company
shall report to the Purchaser on the general status of the ongoing operations of
the Business.
5.4. Taxes. The Purchaser shall pay the Purchase Price free and clear
of withholding or deduction for any Taxes.
5.5. Further Assurances . Subject to the terms and conditions of this
Agreement, each of the parties hereto shall use commercially reasonable efforts
to take, or cause to be taken, all actions, and to do, or cause to be done, all
things reasonably necessary, proper or advisable under applicable Legal
Requirements to consummate and make effective the sale and assignment of Assets
in accordance with this Agreement, including using commercially reasonable
efforts to ensure timely satisfaction of the conditions precedent to each
Party's obligations hereunder. Neither the Company, on the one hand, nor the
Purchaser, on the other hand, shall without the prior written consent of the
other Party take any action which would reasonably be expected to prevent or
materially impede, interfere with, or delay the Contemplated Transactions. From
time to time, on or after the Closing Date, the Company shall use reasonable
efforts, at the Purchaser's expense, to execute and deliver such documents to
the Purchaser as the Purchaser may reasonably request in order to more
effectively vest in the Purchaser the Company's title to the Assets. From time
to time after the date hereof, the Purchaser shall use reasonable efforts, at
the Company's expense, to execute and deliver such documents to the Company as
the Company may reasonably request in order to more effectively consummate the
sale of the Assets or assignment of the Assigned Intellectual Property and the
assumption and assignment of the Assumed Liabilities and the Assumed Contracts
in accordance with this Agreement.
5.6. Public Statements. The Parties shall consult with each other prior
to issuing any public announcement, statement or other disclosure with respect
to this Agreement or the Contemplated Transactions, except that a Party may make
disclosures with respect to this Agreement and the Contemplated Transactions to
the extent required by law or by the rules or regulations of any securities
exchange or commission.
6. CONDITIONS PRECEDENT TO THE CLOSING.
6.1. Conditions to Each Party's Obligations. The respective obligations
of the Company and the Purchaser to effect the Contemplated Transactions shall
be subject to the satisfaction (or, to the extent permitted by applicable Legal
Requirements, waiver) on or prior to the Closing Date of each of the following
conditions:
6.1.1. The Internet Accelerator Deed of Variation and Share
Sale Agreement Deed of Variation shall have been validly executed.
16
6.1.2. No Proceeding by any Governmental Body or other Person
shall have been instituted and shall be pending on the Closing Date, which (i)
questions the validity or legality of any of the Contemplated Transactions; (ii)
seeks material damages against the Purchaser (or its Affiliates) or the Company,
or (iii) imposes any restraint or restriction on the Purchaser's ability to use
or exploit the Assets following the Closing.
6.2. Conditions to the Obligations of the Company. The obligations of
the Company to effect the Contemplated Transactions shall be subject to the
satisfaction on or prior to the Closing Date of each of the following conditions
unless waived by the Company:
6.2.1. (a) Each of the representations and warranties of the
Purchaser set forth in Section 4 shall be true and correct in all material
respects, without regard to whether the Purchaser has, had or hereafter acquires
Knowledge that any such representation or warranty is not true or correct, as of
the date hereof and as of the Closing Date, as though made again on the Closing
Date (except to the extent such representations and warranties expressly relate
to a specific date other than the date of this Agreement in which case such
representations and warranties shall be true and correct in all material
respects as of such date).
6.2.2. The Purchaser shall have performed in all material
respects all covenants and agreements required to be performed by the Purchaser
under this Agreement at or prior to the Closing Date.
6.2.3. The Purchaser shall have delivered or caused to be
delivered (and if applicable, shall execute or cause to be executed) the
documents, certificates and instruments required to be delivered or caused to be
delivered by the Purchaser at the Closing pursuant to Section 7.2.
6.2.4. Xxxxx-Xxxx Pontre of 0/00 Xxxxx Xxxxxx, Xxxxx, Xxxxxxx
Xxxxxxxxx 0000 Xxxxxxxxx, shall have transferred to IAO all of the shares owned
by her in the Company for $250.00.
6.3. Conditions to the Obligations of the Purchaser. The obligations of
the Purchaser to effect the Contemplated Transactions shall be subject to the
satisfaction on or prior to the Closing Date of each of the following conditions
unless waived by the Purchaser:
6.3.1. The Purchaser has completed, to its satisfaction, the
investigations described in clause 5.1.
6.3.2. (a) Each of the representations and warranties of the
Company set forth in Section 3 shall be true and correct in all material
respects, without regard to whether the Company has, had or hereafter acquires
Knowledge that any such representation or warranty is not true or correct, as of
the date hereof and as of the Closing Date, as though made again on the Closing
Date (except to the extent such representations and warranties expressly relate
to a specific date other than the date of this Agreement, in which case such
representations and warranties shall be true and correct in all material
respects as of such date).
17
6.3.3. The Company shall have performed in all material
respects all covenants and agreements required to be performed by it under this
Agreement at or prior to the Closing Date.
6.3.4. Between the date of this Agreement and the Closing
Date, no Material Adverse Effect shall have occurred.
6.3.5. The Company shall have delivered to the Purchaser
satisfactory evidence that any and all Encumbrances affecting the Assets (other
than Assumed Liabilities) have been released.
6.3.6. The documents, certificates, instruments and opinions
required to be delivered or caused to be delivered at the Closing pursuant to
Section 7.2 shall have been delivered.
7. CLOSING.
7.1. Closing Date. The closing of the Contemplated Transactions (the
"Closing") shall take place at the offices of Xxxxxx & Xxxxxx LLP, 0000 Xxxxxx
Xxxxxxxxx, Xxxxx 000, XxXxxx, Xxxxxxxx 00000 or an alternative location
acceptable to the Purchaser. The Closing shall occur within five (5) Business
Days following the satisfaction or waiver of the conditions set forth in Section
6, or on such other date as the Parties may agree (such date, the "Closing
Date"). The Parties shall use their reasonable endeavours to achieve Closing on
or by 28 February 2005.
7.2. Closing Steps. The following actions shall be taken, in the
following order:
7.2.1. Delivery of the Xxxx of Sale and Assignment and
Assumption Agreement. The Company and the Purchaser shall each execute and
deliver to the other a xxxx of sale for those components of the Assets which are
tangible personal property and an acceptable assignment of all of the Assets
which are intangible personal property.
7.2.2. Delivery of Intellectual Property Assignment. The
Company shall execute and deliver to the Purchaser acceptable assignments of all
Assigned Intellectual Property assets, copyrights, marks and patents.
7.2.3. Delivery of Other Ancillary Documents. The Company
shall execute and deliver all Company Ancillary Documents not otherwise
identified in this Section 7.2 and the Purchaser shall execute and deliver all
other Purchaser Ancillary Documents not otherwise identified in this Section
7.2.
8. INDEMNIFICATION.
8.1. Survival All representations, warranties, covenants and
obligations in this Agreement or in any agreement, instrument or other document
delivered in connection herewith shall survive the execution and delivery
hereof, the consummation of the transactions contemplated and any investigation
or audit conducted by any Party hereto. Notwithstanding the preceding sentence,
neither party may make or assert any claim under any representation or
18
warranty of the other Party contained herein later than six months after the
Closing Date, except a claim under any representation or warranty of the other
Party that arises out of gross negligence or wilful misconduct or fraud of that
other Party, provided that any claims made or asserted by a Party within the
applicable time period prescribed above shall survive such expiration until such
claim is finally resolved and all obligations with respect thereto are fully
satisfied. All statements contained in any officer's certificate delivered by or
on behalf of any Party hereto to this Agreement shall constitute and have the
same force and effect as the representations and warranties of such party set
forth herein.
8.2. Indemnification Provisions for Benefit of the Purchaser (a).
8.2.1. IAO and the Company jointly and severally shall
indemnify, defend and hold harmless the Purchaser and its Affiliates from and
against any and all Liability the Purchaser or any such Affiliate may suffer
through and after the date of the claim for indemnification (including any
Liability the Purchaser or such Affiliate may suffer after the end of any
applicable survival period) resulting from, arising out of, or caused by any
breach of a representation or warranty of IAO or the Company contained in this
Agreement; provided however, that in no event shall the total obligation of IAO
and the Company jointly and severally to indemnify the Buyer and its Affiliates
from and against Liabilities exceed $650,000 in the aggregate and the Purchaser
shall not be entitled to assert a claim until the Purchaser's total damages
exceed $50,000 and then only for the excess above $50,000..
8.2.2. IAO and the Company shall indemnify, defend and hold
harmless the Purchaser and its Affiliates from and against any and all
Liabilities the Purchaser and such Affiliate may suffer through and after the
date of the claim for indemnification to the extent resulting from, arising out
of, relating to, or caused by any Retained Liability.
8.2.3. The right to obtain indemnification from IAO and the
Company pursuant to the indemnification provisions of this Section 8.2 shall be
Purchaser's exclusive remedy for any breach by IAO or the Company of the terms
of this Agreement or Liabilities described in Section 8.2.1, except for gross
negligence or wilful misconduct or fraud or for any breach or Liabilities
arising out of or related to gross negligence or wilful misconduct or fraud.
9. TERMINATION.
9.1. Termination. This Agreement may be terminated at any time prior to
the Closing, under the provisions of any of the following sub-sections of this
Section 9.1 which are applicable:
9.1.1. By mutual written agreement of the Purchaser and the
Company;
9.1.2. By the Company by Notice to the Purchaser, if the
Purchaser is in Uncured Breach in any material respect of any of its
representations, warranties, covenants or agreements contained in this
Agreement;
19
9.1.3. By the Purchaser, by Notice to the Company if the
Company is in Uncured Breach in any material respect of any of its
representations, warranties, covenants or agreements contained in this
Agreement;
9.1.4. By either the Company on the one hand, or the
Purchaser, on the other hand, by Notice to the other, if a Governmental Body or
any other Person enters an Order holding, or if a Governmental Body or any other
Person initiates a Proceeding seeking to deem any portion of this Agreement
unenforceable or to prohibit or adversely affect the Contemplated Transactions;
or
9.1.5. By either the Company on the one hand, or the
Purchaser, on the other hand, by Notice to the Purchaser, or to the Company, as
applicable, if for any reason other than due to lack of good faith by or the
default of the party giving the notice the Closing has not occurred on or before
31 May 2005 (the "Termination Date");
The Termination Date may be extended by agreement of each of the Parties hereto.
9.2. Effect of Termination. Except as provided in this Section 8.2, in
the event of termination of this Agreement pursuant to this Section 8, this
Agreement shall forthwith become void, and there shall be no Liability on the
part of any Party or its respective Affiliates, except for the obligations under
Sections 5,8 and 9, all of which shall survive any such termination. Upon
termination, all filings, applications and other submissions made pursuant to
this Agreement, to the extent practicable, shall be withdrawn from the agency or
other Person to which they were made. Notwithstanding the foregoing, nothing
contained herein shall relieve any Party from Liability for any Breach of any
covenant or agreement in this Agreement by such Party occurring prior to the
termination of this Agreement.
10. Notices.
All notices, communications and deliveries required or permitted
hereunder ("Notices") shall be made in writing signed by the Party making the
same, shall specify the Section hereunder pursuant to which the same is given or
being made, and shall be delivered personally or sent by telecopy transmission,
registered or certified mail, or by any internationally recognized overnight
delivery service (with postage and other fees prepaid) as follows:
To IAO: IA Global, Inc.
Attn.: Xxxx Xxxxx
000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000, X.X.X.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000 0000
To the Company: IA Global Acquisition Co.
Attn.:Xxxx Xxxxx
000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000, X.X.X.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000 0000
20
with a required copy transmitted in like, simultaneous copy transmitted in like
manner to:
Xxxxxx & Xxxxxx LLP
Attn.: Xxxxx X. Xxxxx, Esq.
manner to: 0000 Xxxxxx Xxxxxxxxx, Xxxxx 000
XxXxxx, XX 00000, X.X.X.
Telephone No.: x0 000 000-0000
Facsimile No.: x0 000 000-0000
To the Purchaser: NANOCAT Technologies Pte Limited.
Attn.: Xxxxx Xxxxx
000X Xxxxxxx Xxxxx Xxxx
Xxxxxxxxx
Telephone No.: (00) 0000 0000
Facsimile No.: (00) 0000 0000
with a required copy transmitted in like, simultaneous copy transmitted in like
manner to:
Xxxxxxx + Xxxxx Lawyers
Attn.: Xxxxx X. Xxxxxxx.
0 Xxxx Xxxxxx
Xxxxxx 0000, XXX,
Telephone No.: x00 0 0000 0000
Facsimile No.: x00 0 0000 0000
or to such other representative or at such other address of a Party of which a
Party hereto may hereafter give Notice to the other Party in writing. Notices
shall be effective upon the date of delivery or refusal of delivery, if given by
personal delivery, registered, certified or express mail or courier delivery, or
upon transmission by facsimile transmission, if (i) the addressee confirms by
telephone or electronic means that the facsimile transmission in question was
received in legible form or (ii) responds to the communication in the facsimile
transmission in question without indicating that it was not received in legible
form.
11. MISCELLANEOUS.
11.1. Attachments. All Schedules attached hereto are hereby
incorporated into this Agreement and are hereby made a part hereof as if set out
in full in this Agreement.
11.2. Entire Agreement. This Agreement (including the documents
referred to herein) constitutes the entire agreement among the Parties hereto
and supersedes any prior understandings, agreements, or representations by or
among the Parties hereto, written or oral, to the extent they related in any way
to the subject matter hereof. Notwithstanding the foregoing, this Agreement
shall not supersede any other Contracts between or among the Parties hereto
entered into on or after the date hereof, whether or not relating in any way to
the subject matter hereof.
22
11.3. Disclosure Schedules. The statements in the Disclosure Schedules
relate only to the representations and warranties in the Section of the
Agreement to which they expressly relate and not to any other representation or
warranty in this Agreement. In the event of any inconsistency between the
statements in this Agreement and those in the Disclosure Schedules (other than
an exception expressly set forth as such in the Disclosure Schedules with
respect to a specifically identified representation or warranty), the statements
in this Agreement will take priority.
11.4. Enforcement of Agreement. The Parties hereto acknowledge and
agree that each other Party would be damaged irreparably in the event any of the
provisions of this Agreement are not performed in accordance with their specific
terms and that any Breach of this Agreement by any Party could not be adequately
compensated by monetary damages. Accordingly, the Parties agree that, in
addition to any other right or remedy to which a Party may be entitled, at law
or in equity, it shall be entitled to enforce any provision of this Agreement by
a decree of specific performance and to temporary, preliminary and permanent
injunctive relief to prevent Breaches or threatened Breaches of the provisions
of this Agreement, without posting any bond or other undertaking.
11.5. Succession and Assignment. This Agreement shall be binding upon
and inure to the benefit of the Parties named herein and their respective
successors and permitted assigns. No Party may assign either this Agreement or
any of its rights, interests, or obligations hereunder without the prior written
approval of the other Parties hereto; provided, however, that the Purchaser may
(i) assign any or all of its rights and interests hereunder to one or more of
its Affiliates and (ii) designate one or more of its Affiliates to perform its
obligations hereunder (in any or all of which cases the Purchaser nonetheless
shall remain responsible for the performance of all of its obligations
hereunder).
11.6. Number; Gender. Whenever the context so requires, the singular
number shall include the plural and the plural shall include the singular, and
the gender of any pronoun shall include the other gender.
11.7. Captions. The Section, Subsection and other titles and captions
contained in this Agreement, the Schedules and the Exhibits to this Agreement,
and any table of contents contained in this Agreement, are inserted herein only
as a matter of convenience of reference, shall not be deemed part of this
Agreement and shall in no way define, limit, extend or describe the scope of
this Agreement or the intent of any provision hereof. Unless otherwise specified
to the contrary, all references to Sections are references to sections of this
Agreement, and all references to Schedules and Exhibits are references to
Schedules and Exhibits to this Agreement.
11.8. Controlling Law; Integration; Amendment; Certain Construction
Rules. This Agreement shall be governed by and construed and enforced in
accordance with the internal laws of the State of Virginia without regard to
such jurisdiction's choice of law rules. This Agreement may not be amended,
modified or supplemented except by a written agreement of the Parties. No
provision of this Agreement shall be construed against or interpreted to the
disadvantage of any Party hereto by any Governmental Body by reason of such
Party's or such Person's counsel having or being deemed to have structured or
drafted
22
such provision. Except as otherwise expressly provided herein, all
representations and warranties contained herein shall be deemed to have been
made as of the date hereof.
11.9. Counterparts; Execution and Delivery of Signature Pages. This
Agreement may be executed in multiple counterparts and by the Parties hereto on
separate counterparts which, taken together, shall constitute one binding
agreement. This Agreement shall also be deemed duly executed, delivered and in
full force and effect if (a) each of the Parties hereto has properly executed a
signature page to this Agreement, designated as such (a "Signature Page") on
which such Party's signature is called for, and (b) each Party has transmitted
such executed Signature Page by facsimile transmission or courier service to
each of the other Parties to this Agreement. Each Party to this Agreement
undertakes to the other Parties that, in the event such Party executes this
Agreement by means of executing and transmitting by facsimile transmission a
Signature Page, such Party shall forthwith after such execution send by courier
service to the other Parties to this Agreement a copy of the Signature Page
hand-signed by such Party, provided, however, that any failure to dispatch such
Signature Page by courier as aforesaid shall not affect the validity and
enforceability of this Agreement, and it shall be deemed to be in full force and
effect.
11.10. No Third Party Beneficiary. Nothing expressed or implied in this
Agreement is intended, or shall be construed, to confer upon or give any Person
other than the Parties hereto and their successors or permitted assigns, any
rights, remedies, obligations or Liabilities under or by reason of this
Agreement, or result in any Person's being deemed a third party beneficiary of
this Agreement.
11.11. Waiver. Any agreement on the part of a Party hereto to any
extension or waiver of any obligation of any other Party hereunder shall be
valid only if set forth in an instrument in writing signed on behalf of the
Party entitled to enforce the obligation. A waiver by one Party of the
performance of any covenant, agreement, obligation, condition, representation or
warranty shall not be construed as a waiver of any other covenant, agreement,
obligation, condition, representation or warranty or as a waiver by any other
Party. A waiver by any Party of the performance of any act shall not constitute
a waiver of the performance of any other act or an identical act required to be
performed at a later time.
IN WITNESS WHEREOF, each of the Parties hereto has executed this
Agreement as of the date and year first above written.
IA GLOBAL, INC.
By: /s/ Xxxx Xxxxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Chief Executive Officer
February 9, 2005
------------------------------------
Date
23
IA GLOBAL ACQUISITION CO.
By: /s/ Xxxx Xxxxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Chief Executive Officer
February 9, 2005
------------------------------------
Date
NANOCAT TECHNOLOGIES PTE LIMITED.
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
Title: Authorised Representative
February 9, 2005
------------------------------------
Date
24
