ASSET PURCHASE AND SALE AGREEMENT
By and Among
Power Direct, Inc.,
a Delaware corporation,
and
Rising Phoenix Development Ltd.,
a British Columbia corporation.
THIS ASSET PURCHASE AND SALE AGREEMENT ("Agreement") is nude and entered into in
duplicate this fifteenth day of November, 1999, by and among Power Direct, inc.,
a Delaware corporation ("Purchaser"), and Rising Phoenix Development Group Ltd.,
a British Columbia corporation ("Seller"), and provides for the Purchaser to
acquire all of the business assets of the Seller, subject to the liabilities
assumed pursuant to the provisions of this Agreement by the Purchaser and no
other liabilities, on the terms and subject to the conditions specified in this
Agreement.
RECITALS
A. The Purchaser desires to acquire, on the terms and subject to the
conditions specified in this Agreement, the business of the Seller insofar as
the same is conducted by the use of the Acquired Assets (as that term is defined
the provisions of Section 1.1 of this Agreement).
B. The Seller believes that it is in the best interests of the Seller, and,
therefore, it desires, to sell the Acquired Assets to the Purchaser, on the
terms and subject to the conditions specified in this Agreement.
NOW, THEREFORE, IN CONSIDERATION OF THE RECITALS SPECIFIED ABOVE THAT SHALL BE
DEEMED TO BE A SUBSTANTIVE PART OF THIS AGREEMENT, AND THE MUTUAL COVENANTS,
PROMISES, UNDERTAKINGS, AGREEMENTS, REPRESENTATIONS AND WARRANTIES SPECIFIED IN
THIS AGREEMENT AND OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND
SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, WITH THE INTENT TO BE OBLIGATED
LEGALLY AND EQUITABLY, THE PARTIES DO HEREBY COVENANT, PROMISE, AGREE, REPRESENT
AND WARRANT AS FOLLOWS:
ARTICLE I
DEFINITIONS
As used in this Agreement, the capitalized terms specified in this
Agreement shall have the meanings and definitions specified and indicated by the
provisions of this Article I, unless a
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different and common meaning of such a term is clearly indicated by the context,
and variants and derivatives of the those terms shall have correlative meanings.
To the extent that certain of the definitions specified in this Article I
suggest; indicate or express agreements between or among parties to this
Agreement, or contain representations, warranties or covenants of a party, the
parties agree to the same, by execution of this Agreement. Agreements,
representations, warranties and covenants specified in any part or provision of
this Agreement shall for all purposes of this Agreement be treated in the same
manner as other such agreements, representations, warranties and covenants
specified elsewhere in this Agreement, and the article, section or paragraph of
this Agreement within which such an agreement, representation, warranty, or
covenant appears shall have no separate meaning or effect on the same.
1.1 "Acquired Assets". The assets of the Seller being acquired by the
Purchaser pursuant to the provisions of this Agreement, as specified on Schedule
2.1 of this Agreement, and all other assets of the Seller, tangible or
intangible, including contractual, warranty and other rights, the use or value
of which will come within the Control (as that term is defined by the provisions
of Section 1.15 of this Agreement) by the Purchaser when the Transaction (as
that term is defined by the provisions of Section 1.36 of this Agreement) is
consummated.
1.2 "Acquired Business". The business conducted by the Seller in which the
Seller utilized the Acquired Assets, as described on Schedule 2.1 to this
Agreement.
1.3 "Acquired Facilities". All office space, warehouses, stores, plants,
production facilities, manufacturing facilities, fixtures, furniture, office
equipment, computer equipment, common areas, storage facilities, rights of way,
driveways, and improvements owned or leased by the Seller or otherwise used by
the Seller in connection with the operation of its business or leased or
subleased by the Seller to other person or Entities, but only to the extent that
the same consist of Acquired Assets.
1.4 "Affiliate". When used with respect to a person, an "Affiliate" of that
person is a person controlling, controlled by, or under common control with that
person.
1.5 "Agreement". This Asset Purchase and Sale Agreement, including all of
its schedules and exhibits and all other documents specifically referred to in
this Agreement that have been or are to be delivered by a party to this
Agreement to another such party in connection wit the Transaction or this
Agreement, and including, but not limited to, all duly and validly adopted
amendments, modifications, and supplements to or of this Agreement and such
schedules, exhibits and other documents.
1.6 "Assumed Liabilities". The Liabilities (as that term is defined by the
provisions of Section 1.22 of this Agreement) of the Seller being assumed by the
Purchaser pursuant to the provisions of this Agreement, as specifically
identified in Schedule 2.1 to this Agreement, and no other Liabilities of the
Seller or the Acquired Business.
1.7 "Audited Financial Statements". The balance sheet, income statement,
statement of
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stockholders' equity, and statement of cash flows or, in each instance,
equivalent statements of the respective, subject corporation as commonly
provided to such corporation's shareholders, as at December 31, 1998, and for
the three (3) years then ended, as reported on by Auditors.
1.8 "Auditors". Independent certified public accountants currently retained
for the purpose of auditing financial statements of the respective, particular
person.
1.9 "Business Day". Any day that is not a Saturday, Sunday or day on which
banks in Wilmington, Delaware are authorized to close.
1.10 "Closing". The completion and consummation of the Transaction, to
occur as contemplated in Article II of this Agreement.
1.11 "Closing Date". The date on which the Closing actually occurs, which
shall be no later than December__, 1999, unless otherwise agreed by the parties,
but shall not in any event be prior to satisfaction or waiver of the conditions
to Closing specified in Article VII of this Agreement.
1.12 "Closing Time". The time at which the Closing actually occurs. All
events that are to occur at the Closing Time shall, for all purposes, be deemed
to occur simultaneously, except to the extent, if at all, that a specific order
of occurrence is otherwise described.
1.13 "Code". The Internal Revenue Code of 1986, as amended and in effect on
the date the parties sign this Agreement.
1.14 "Consideration". (i) Three million eight hundred thousand (3,800,000)
shares of $.0001 par value common stock of the Purchaser to be issued by the
Purchaser to the Seller at the Closing ("Subject Shares"); and (ii) Seventy-Five
Thousand Dollars ($75,000.00), for which the Acquired Assets will be purchased
from the Seller.
1.15 "Control". Generally, the power to direct the management or affairs of
an Entity.
1.16 "Dollars" of the symbol "$" refers to and shall mean the currency of
the United States of America, unless otherwise specified.
1.17 "Entity". A corporation, trust, association, municipality,
partnership, sole proprietorship, joint venture, or other form of organization
formed for the conduct of a business, whether active or passive.
1.18 "ERISA". The Employee Retirement Income Security Act of 1974, as
amended and in effect at the time of execution of this Agreement.
1.19 "GAAP". Generally Accepted Accounting Principles as applied
consistently in the United States of America, as in effect on the date of any
statement, report or determination that
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purports to be, or is required to be, prepared or made in accordance with GAAP.
All references in this Agreement to financial statements prepared in accordance
with GAAP shall mean in accordance with GAAP consistently applied throughout the
periods to which reference is made.
1.20 "Inventories". The stock of raw materials, work-in-process and
finished goods, including, but not limited to, finished goods purchased for
resale, held by the Seller for manufacturing, assembly, processing, finishing,
sale, or resale to others from time to time in the ordinary course of the
business of the Seller, in the form in which such inventories then are held or
after manufacturing, assembling, finishing, processing, incorporating with other
goods or items, refining, or similar processes.
1.21 "IRS". The United States Internal Revenue Service.
1.22 "Liabilities". At any time ("Determination Time"), the obligations of
a person or Entity, whether known or unknown, contingent or absolute, recorded
on its books or not, resulting in any way from facts, events, agreements,
obligations or occurrences that existed, occurred or transpired at a prior time,
or resulted from the passage of time to the Determination Time, but not
including obligations accruing or payable after the Determination Time to the
extent (but only to the extent) that such obligations (a) result from previously
existing agreements for services, benefits, or other considerations and (b)
accrue or become payable with respect to services, benefits, or other
considerations received by the person or Entity after the Determination Time.
1.23 "Multiemployer Plan". A "multiemployer plan," as defined in Section
3(37) of ERISA or Section 414(f) of the Code, or, in either case, successor
provisions to such provisions adopted by amendments to ERISA or the Code, as the
case may be, and including, in each case, other provisions of ERISA, of the
Code, or of other law, and regulations adopted pursuant to ERISA, or the Code,
or such other law, modifying, amending, interpreting, or otherwise affecting the
application of such provisions, either in general or as applied to the nature or
circumstances of a particular Entity that is a party to, or is affected by, or
is involved in, the Transaction and with respect to which Entity the use of the
term in this Agreement, or in the particular provision in this Agreement, is
relevant.
1.24 "Payables". Liabilities of a person or Entity resulting from the
borrowing of money or the incurring of obligations for merchandise or goods
purchased.
1.25 "Pension Plan". A "pension plan" or "employee pension benefit plan,"
as defined in Section 3(2) of ERISA or successor provisions to such provision
adopted by amendments to ERISA and including other provisions of ERISA; or of
other law, and regulations adopted pursuant to ERISA or such other law,
modifying, amending, interpreting, & otherwise affecting the application of such
provision, either in general or as applied to the nature or circumstances of a
particular Entity that is a party to, or is affected by, or is involved in, the
Transaction and with respect to which Entity the use of the term in this
Agreement, or in the particular provision in this Agreement, is relevant.
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1.26 "Projections". The projections of economic results of the Seller,
prepared quarterly through October 31, 1999, and delivered to the Purchaser
pursuant to the terms of this Agreement. The Projections include projected
financial results for the business operations of the Seller. The Purchaser
acknowledges that projections of future economic performance are necessarily
unreliable and subject to the occurrence or nonoccurrence of a variety of
events, but the Seller represents and warrants that the Projections have been
prepared on the basis of assumptions that are, in the judgment of the Seller,
reasonable in all respects and are not, to the knowledge of the Seller, contrary
in any material respect to fact or to events that have occurred or are presently
in existence.
1.27 "Proprietary Information". For example, but without any limitation,
any and all marketing and sales data, plans and strategies, financial
projections, customer lists, prospective customer lists, promotional ideas, data
concerning services, designs, methods, inventions, improvements, discoveries,
designs whether or not patentable, "know-how", training and sales techniques and
any other information of a similar nature.
1.28 "Proprietary Rights". Trade secrets, copyrights, patents, trademarks,
service marks, customer lists, and all similar types of intangible property
developed, created or owned by the person claiming ownership, proprietary or
similar, or used by such person in connection with such person's business,
whether or not the same are entitled to legal protection.
1.29 "Purchaser". Power Direct, Inc., a Delaware corporation, which,
pursuant to the provisions of this Agreement, is purchasing the Acquired Assets.
1.30 "Receivables". Accounts receivable, notes receivable, and other
obligations presented as assets on the books, records and financial statements
of an Entity or a person, in accordance with GAAP, indicating moneys owed, due
and payable to that Entity or person on whose financial statements such
receivables are presented.
1.31 "SEC". The Securities and Exchange Commission.
1.32 "Securities Act". The Securities Act of 1933, as amended to the date
as of which any reference thereto is relevant pursuant to this Agreement,
including any substitute or replacement statute adopted in place or lieu
thereof.
1.33 "Seller". Rising Phoenix Development Group Ltd., a British Columbia
corporation, which, pursuant to the provisions of this Agreement, is selling the
Acquired Assets.
1.34 "Seller Balance Sheet". The most recent balance sheet included in the
Audited Financial Statements of the Seller.
1.35 "Subsidiary" or "Subsidiaries". With respect to any Entity, another
Entity of which fifty percent (50%) or more of the effective voting power, or
the effective power to elect a majority of the board of directors or similar
governing body, or fifty percent (50%) or more of the woe equity interest, is
owned by such first Entity, directly or indirectly.
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1.36 "Transaction". The sale of the Acquired Assets, subject to the Assumed
Liabilities, for the consideration as contemplated by, and on the terms and
subject to the conditions of, this Agreement.
1.37 "Unaudited Financial Statements". The balance sheet, income statement,
statement of stockholders' equity and statement of cash flows or equivalent
statements of the respective, subject Entity or person, as commonly prepared, as
at October 31, 1999, with comparable statements for the similar period of the
prior fiscal year.
1.38 "Welfare Plan". A "welfare plan" or an "employee welfare benefit
plan," as defined in Section 3(1) of ERISA or successor provisions to such
provision adopted by amendments to ERISA and including other provisions of ERISA
or of other law, and regulations adopted pursuant to ERISA or such other law,
modifying, amending, interpreting, or otherwise affecting the application of
such provision, either in general or as applied to the nature or circumstances
of a particular Entity that is a party to, or is affected by, or is involved in,
the Transaction and with respect to which Entity the use of the term in this
Agreement, or in the particular provision in this Agreement, is relevant.
ARTICLE II
THE TRANSACTION
2.1 The Transaction. On the Closing Date, and at the Closing Time, on, and
in all instances subject to, each of the terms, conditions, provisions and
limitations specified in this Agreement, the Seller shall sell, transfer,
convey, assign, deliver and set over to the Purchaser, by instruments
satisfactory in form and substance to the Purchaser, and the Purchaser shall
acquire from the Seller, the Acquired Assets, subject to the Assumed
Liabilities, and only those Liabilities and no others, in exchange for the
Consideration. The assets specified on Schedule 2.1 to this Agreement, the
provisions of which, by this reference, are made a part of this Agreement as
though specified completely and specifically at length in this Section 2.1, are
all the assets reasonably necessary for the conduct of the Acquired Business in
the ordinary course and in the same manner as that in which such business has
been conducted in the immediate past, including, but not limited to, all
Proprietary Rights of the Seller so used in the ordinary conduct of the Acquired
Business and all contract, warranty, and other intangible rights relating to or
resulting from such Acquired Business. Neither the Purchaser nor any of its
Affiliates is assuming, becoming liable for, agreeing to discharge or in any
manner becoming in any way responsible for, any of the Liabilities of the
Seller, other than those Liabilities expressly specified on Schedule 2.1 and
accepted by the Purchaser pursuant to this Section 2.1.
2.2 Delivery of Consideration. Pursuant this Transaction, the Purchaser
shall deliver or cause to be delivered on the Closing Dare (i) the certificate
evidencing and representing the Subject Shares. The Purchaser has, prior to the
execution of this Agreement, delivered to the Seller Seventy-Five Thousand
Dollars ($75,000.00) in partial performance of Purchaser's obligation to deliver
the Consideration.
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2.3 Closing. The Closing of the transaction shall occur at the offices of
Xxxxx & Xxxxxxxxx LLP, 0000 Xxxx Xxxxxx, Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxxxxx,
at 10:00 A.M., or at such other place as the Purchaser and the Seller may agree,
on the Closing Date.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to the Seller as follows:
3.1 Organization and Qualification. The Purchaser is a corporation duly
organized, validly existing and in good standing pursuant to the laws of its
jurisdiction of incorporation and has the requisite corporate power and
authority to conduct its business as that business is now being conducted. The
Purchaser is duly qualified as a foreign corporation to do business, and is in
good standing, in each jurisdiction where the character of the properties owned
or leased by it, or the nature of its activities, is such that qualification as
a foreign corporation in that jurisdiction is required by law.
3.2 Authority Relative to This Agreement. The Purchaser has the requisite
corporate power and authority to carry out its obligations specified by the
provisions of this Agreement. The execution and delivery of this Agreement and
the consummation of the Transaction have been duly authorized and approved by
the requisite corporate authority of the Purchaser and no other corporate
proceedings on the part of the Purchaser are necessary to approve and adopt this
Agreement or to approve the consummation of the Transaction, including the
issuance and delivery of the Subject Shares. The Purchaser has, and any officer,
director or representative executing this Agreement for and on behalf of the
Purchaser has, the legal capacity and authority to enter into and deliver this
Agreement. This Agreement is a valid and legally binding obligation of the
Purchaser and is enforceable completely against the Purchaser in accordance with
its terms, except as such enforceability may be limited by general principles of
equity, bankruptcy, insolvency, moratorium and similar laws relating to
creditors' rights generally, and subject to approval of any and all governmental
regulatory agencies and authorities having jurisdiction of the relationship
between the parties contemplated by the provisions of this Agreement and the
Transaction.
3.3 Absence of Breach; No Consents. The execution, delivery and performance
of this Agreement, and the performance by the Purchaser of its obligations
specified by the provisions of this Agreement (except for compliance with any
regulatory or licensing laws applicable to the business of the Purchaser, all of
which, to the extent applicable to the Purchaser (and to the extent within its
Control), will be satisfied in all material respects prior to the Closing) do
not (i) conflict with, and will not result in a breach of, any of the provisions
of the Certificate of Incorporation or Bylaws of the Purchaser; (ii) contravene
any law, rule or regulation of any state or commonwealth, the United States,
(except for compliance with regulatory or licensing laws, all of which, to the
extent applicable to the Purchaser (and to the extent within the Control of the
Purchaser), will be satisfied in all material respects prior to the Closing), or
any applicable foreign jurisdiction, or contravene any order, writ, judgment,
injunction, decree, determination, or award affecting or obligating the
Purchaser, in such a manner as to provide a basis for enjoining or otherwise
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preventing consummation of the Transaction; (iii) conflict with or result in a
material breach of or default pursuant to any material indenture or loan or
credit agreement or any other material agreement or instrument to which the
Purchaser is a party, in such a manner as to provide a basis for enjoining or
otherwise preventing consummation of the Transaction; or (iv) require the
authorization, consent, approval or license of any third party of such a nature
that the failure to obtain the same would provide a basis for enjoining or
otherwise preventing consummation of the Transaction.
3.4 Brokers. No broker, finder or investment banker is entitled to any
brokerage, finder's or other fee or commission in connection with this Agreement
or the Transaction or any related transaction based upon any agreements, written
or oral, made by or on behalf of Purchaser or any of its Subsidiaries.
3.5 Taxes. The Purchaser has properly filed or caused to be filed all
federal, state, local and foreign income and other tax returns, reports and
declarations that are required by applicable law to be filed by the Purchaser
and has paid, or made full and adequate provision for the payment of, all
federal, state, local and foreign income and other taxes properly due for the
periods for which such returns, reports and declarations are applicable.
3.6 Litigation. No investigation or review by any governmental agency with
respect to the Purchaser is pending or threatened (other than inspections and
reviews customarily made of businesses such similar to that the Purchaser), nor
has any governmental agency indicated to the Purchaser an intention to conduct
the same. There is no action, litigation matter or proceeding pending or
threatened against or affecting the Purchaser at law or in equity, or before any
federal, state, municipal or other governmental department, commission, board,
bureau, agency or instrumentality.
3.7 Employees, Etc. There are no collective bargaining, bonus, profit
sharing, compensation, or other plans, agreements, trusts, funds, or
arrangements maintained by the Purchaser for the benefit of directors, officers
or employees of, and there are no employment, consulting, severance, or
indemnification arrangements, agreements, or understandings between the
Purchaser, on the one hand, and any current or former directors, officers or
other employees (or Affiliates thereof), on the other hand, except as disclosed
to the Seller in writing. The Purchaser is not, and following the Closing will
not be, obligated by any express or implied contract or agreement to employ,
directly or as consultant or otherwise, any person for any specific period of
rime or until any specific age.
3.8 Compliance With Laws. The Purchaser is in compliance with all, and has
received no notice of any violation of any, laws or regulations applicable to
its operations, including, but nor limited to, the laws and regulations relevant
to the use or utilization of premises, or with respect to which compliance is a
condition of engaging in any aspect of the business of the Purchaser and the
Purchaser has all permits, licenses, zoning rights and other governmental
authorizations necessary to conduct its business as presently conducted.
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3.9 Ownership of Assets. The Purchaser has good, marketable and insurable
title, or valid, effective and continuing leasehold rights in the case of leased
property, to all real property (as to which, in the case of owned property, such
title is fee simple) and all personal property owned or leased by the Purchaser
in such a manner as to create the appearance or reasonable expectation that the
same is owned or leased by the Purchaser; such ownership is free and clear of
all liens, claims, encumbrances and charges, except liens for ties not yet due
and minor imperfections of title and encumbrances, if any, which, singly and in
the aggregate, are nor substantial in amount and do not materially detract from
the value of the property subject thereto or materially impair the use thereof;
no other person or Entity has any ownership or similar right in, or contractual
or other right to acquire any such right in, any of such assets. The Purchaser
does not know of any potential action by any party, governmental or other, and
no proceedings with respect thereto have been instituted of which the Purchaser
has notice, that would materially affect the Purchaser's ability to use and to
utilize each of the Purchaser's assets. The Purchaser has received no notices
from any mortgagee regarding any of its leased properties.
3.10 Proprietary Rights. The Purchaser possesses full and complete
ownership of, or adequate and enforceable long-term licenses or other rights to
use (without payment), all of the Purchaser's Proprietary Rights; the Purchaser
has not received any notice of conflict which asserts the rights of others with
respect thereto; and the Purchaser has in all material respects performed all of
the obligations required to be performed by the Purchaser, and is not in default
in any material respect, pursuant to any agreement relating to any such
Proprietary Right.
3.11 Subsidiaries. All of the Subsidiaries of Purchaser; direct or
indirect, have been identified by the Purchaser to the Seller, and the Purchaser
has no other Subsidiaries.
3.12 Trade Names. The Purchaser has not utilized any fictitious business
names or similar names in the conduct of the Purchaser's business or in the
utilization of the Purchaser's assets.
3.13 Employee Benefit Plans. The Purchaser does not maintain or contribute
to any Pension Plan or any Welfare Plan, nor is the Purchaser presently, nor has
the Purchaser been within the last six (6) years, a participating employer in
any Multiemployer Plan, affecting, in any case, employees of the Purchaser.
3.14 Accounts Receivable. All accounts receivable of the Purchaser
represent transactions in the ordinary course of business and are current and
collectible.
3.15 Accounts Payable. The accounts payable of the Purchaser at the time of
the Closing will be all amounts owed by the Purchaser in respect of trade
accounts due and other Payables of the Purchaser.
3.16 Labor Matters. There are no activities or controversies, including,
but not limited to, any labor organizing activities, election petitions or
proceedings, proceedings preparatory thereto, unfair labor practice complaints,
labor strikes, disputes, slowdowns, or work stoppages, pending or, to the best
of the knowledge of the Purchaser, threatened, affecting employees of the
Purchaser.
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3.17 Insurance. The Purchaser has insurance policies in full force and
effect insuring the assets of the Purchaser and such insurance policies provide
for coverages which are usual and customary in the business of the Purchaser as
to amount and scope, and are adequate to protect the assets of the Purchaser
against any reasonably foreseeable risk of loss, including business
interruption. The Purchaser has not within the past three (3) years received any
notice of cancellation of any insurance agreement affecting the assets of the
Purchaser.
3.18 Full Disclosure. The documents, certificates and other writings
furnished or to be furnished by or on behalf of the Purchaser to the Seller
pursuant to the provisions of this Agreement, taken together in the aggregate,
do not and will not contain any untrue statement of a material fact, or omit to
specify any material fact necessary to make the information specified therein,
considering the circumstances pursuant to which such information was specified
not misleading.
3.19 Capitalization; the Subject Stock; Related Matters. The authorized
capital stock of the Purchaser consists of one hundred million (100,000,000)
shares of $.0001 par value common stock. As of the date of this Agreement, there
are eighteen million four hundred ninety-seven thousand five hundred
(18,497,500) shares of such common stock issued and outstanding. The Subject
Shares, when issued, will be duly, legally and validly issued and will be
non-assessable.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller represents and warrants to the Purchaser as follows:
4.1 Organization and Qualification. The Seller is a corporation duly
organized, validly existing and in good standing pursuant to the laws of its
jurisdiction of incorporation and has the requisite corporate power and
authority to conduct its business as that business is now being conducted. The
Seller is duly qualified as a foreign corporation to do business, and is in good
standing, in each jurisdiction where the character of the properties owned or
leased by it, or the nature of its activities, is such that qualification as a
foreign corporation in that jurisdiction is required by law.
4.2 Authority Relative to This Agreement. The Seller has the requisite
corporate power and authority to carry out its obligations specified by the
provisions of this Agreement. The execution and delivery of this Agreement and
the consummation of the Transaction have been duly authorized and approved by
the requisite corporate authority of the Seller and no other corporate
proceedings on the part of the Seller are necessary to approve and adopt this
Agreement or to approve the consummation of the Transaction, including the sale
and delivery of the Acquired Business and each of the Acquired Assets, except
for shareholder approval specified elsewhere in this Agreement. The Seller has,
and any officer, director or representative executing this Agreement for and on
behalf of the Seller has, the legal capacity and authority to enter into and
deliver this Agreement. This Agreement is a valid and legally binding obligation
of the Seller and is enforceable completely against the Seller in accordance
with its terms, except as such
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enforceability may be limited by general principles of equity, bankruptcy,
insolvency, moratorium and similar laws relating to creditors' rights generally,
and subject to approval of any and all governmental regulatory agencies and
authorities having jurisdiction of the relationship between the parties
contemplated by the provisions of this Agreement and the Transaction.
4.3 Absence of Breach; No Consents. The execution, delivery and performance
of this Agreement, and the performance by the Seller of its obligations
specified by the provisions of this Agreement, do not (i) contravene any law,
ordinance, rule or regulation of any State or Commonwealth or political
subdivision of the United States except for and compliance with regulatory or
licensing laws all of which, to the extent applicable to the Seller (and to the
extent within the Control of the Seller), will be satisfied in all material
respects prior to the Closing), or of any applicable foreign jurisdiction, or
contravene any order, writ, judgment, injunction, decree determination, or award
of any court or other authority having jurisdiction, or cause the suspension or
revocation of any authorization, consent, approval, or license, presently in
effect, which affects or obligates the Seller or all or any part of the Acquired
Business or any of the Acquired Assets or any material properties of the
Acquired Business, except in any such event when such contravention will not
have a material adverse effect on the business, condition (financial or
otherwise), operations or prospects of the Acquired Business or any of the
Acquired Assets and will not have a material adverse effect on the validity of
this Agreement or on the validity of the consummation the Transaction; (ii)
conflict with or result in a material breach of or default under any material
indenture or loan or credit agreement or any other material agreement or
instrument to which the Seller or any of part of the Acquired Business is a
party or by which any of the material properties of the Acquired Business may be
affected or obligated; (iii) require the authorization, consent, approval, or
license of any third party; or (iv) provide justification for the loss or
suspension of any permits, licenses, or other authorizations used in the
Acquired Business.
4.4 Broker. No broker, finder or investment banker is entitled to any
brokerage, finder's, or other fee or commission in connection with this
Agreement or the Transaction or any related transaction based upon any
agreements, written or oral, made by or on behalf of Seller or any of its
Subsidiaries. The Seller does not have any obligation to pay finder's or
broker's fees or commissions in connection with the exercise of options to renew
or extend real estate leases to which the Seller is a party.
4.5 Financial Statements. On or before the Closing, the Seller will deliver
or cause to be delivered to the Purchaser the following:
1. Audited Financial Statements;
2. Unaudited Financial Statements;
3. All documents of the Seller filed with the SEC within the four (4)
years preceding the date of execution of this Agreement; and
4. The Projections.
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All of the historical financial statements contained in such documents were
prepared from the books and records of the Seller. The Audited Financial
Statements were prepared in accordance with GAAP, and fairly and accurately
present the financial situation and condition of the Seller as at the dates and
for the periods indicated. Without limiting the foregoing, at the date of the
Seller Balance Sheet, the Seller owned each of the assets specified on the
Seller Balance Sheet, and the valuation of such assets in the Seller Balance
Sheet is not more than their fair saleable value (on an item-by-item basis) at
that date; and the Seller had no Liabilities, other than those specified in the
Seller Balance Sheet, nor any Liabilities in amounts in excess of the amounts
included for them in the Seller Balance Sheet. The Unaudited Financial
Statements were prepared in a manner consistent with the basis of presentation
used in the Audited Financial Statements, and fairly present the financial
situation and condition of the Seller as at and for the periods indicated,
subject to normal year-end adjustments, none of which will be material. The
Projections reasonably anticipate the results of operations that the Seller
expects it will achieve, absent the occurrence of extraordinary events or
unusual conditions of which the Seller is not presently on notice. From the date
of this Agreement through the Closing Date the Seller will continue to prepare
financial statements on the same basis that it has done so in the past, will
promptly deliver the same to the Purchaser, and the foregoing representations
will be applicable to each financial statement so prepared and delivered.
4.6 No Undisclosed Liabilities. The Seller has no Liabilities which are not
adequately presented or reserved against on the Seller Balance Sheet, except
Liabilities incurred since the date of the Seller Balance Sheet in the ordinary
course of business and consistent with past practice. Without limiting the
foregoing, (a) there are no unpaid leasehold improvements at any of the Acquired
Facilities or locations for which the Seller is or will be responsible and (b)
there are no deferred rents due to lessors at or with respect to any of such
Acquired Facilities or locations.
4.7 No Material Adverse Change, Etc. Since the date of the Seller Balance
Sheet, other than as contemplated or caused by this Agreement, there has not
been (i) any material adverse change in the business, condition (financial or
otherwise), operations, or prospects of the Seller; (ii) any damage,
destruction, or loss, whether covered by insurance or not, having a material
adverse effect on the business, condition (financial or otherwise), operations
or prospects of the Seller; (iii) any entry into or termination of any material
commitment, contract, agreement or transaction (including, but not limited to,
any material borrowing or capital expenditure or sale or other disposition of
any material asset or assets) of or involving the Seller, other than this
Agreement and agreements executed in the ordinary course of business; (iv) any
redemption, repurchase or other acquisition for value of its capital stock by
the Seller, or any issuance of capital stock of the Seller or of securities
convertible into or rights to acquire any such capital stock or any dividend or
distribution declared, set aside or paid on capital stock of the Seller; (v) any
transfer of or right granted pursuant to any material lease, license, agreement,
patent, trademark, trade name or copyright of the Seller; (vi) any sale or other
disposition of any asset of the Seller, or any mortgage, pledge or imposition of
any lien or other encumbrance on any asset of the Seller, other than in the
ordinary course of business, or any agreement relating to any of the foregoing;
or (vii) any default or breach by the Seller in any material respect pursuant to
any
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contract, license or permit. Since the date of the Seller Balance Sheet, the
Seller has conducted its business only in the ordinary and usual course, and,
without limiting the foregoing, no changes have been made in (i) executive
compensation amounts, (ii) the manner in which other employees of the Seller are
compensated, (iii) supplemental benefits provided to any such executives or
other employees, or (d) inventory amounts in relation to sales amounts, except,
in any such event, in the ordinary course of business and, in any event, without
material adverse effect on the business, condition (financial or otherwise),
operations or prospects of the Seller.
4.8 Taxes. The Seller has properly filed or caused to be filed all federal,
state, local and foreign income and other tax returns, reports and declarations
that are required by applicable law to be filed by the Seller and that relate to
or in any way affect the Acquired Business or the Acquired Assets and has paid,
or made full and adequate provision for the payment of, all federal, state,
local and foreign income and other taxes properly due for the periods for which
such returns, reports and declarations are applicable.
4.9 Litigation. No investigation or review by any governmental agency with
respect to the Acquired Business or any of the Acquired Assets or the use
thereof is pending or threatened (other than inspections and reviews customarily
made of businesses such as the Acquired Business), nor has any governmental
agency indicated to the Seller an intention to conduct the same. There is no
action, litigation matter or proceeding pending or threatened against or
affecting the Acquired Business or the Acquired Assets at law or, in equity, or
before any federal, state, municipal, or other governmental department,
commission, board, bureau, agency or instrumentality.
4.10 Employees, Etc. There are no collective bargaining, bonus, profit
sharing, compensation or other plans, agreements, trusts, funds or arrangements
maintained by the Seller, and there are no employment, consulting, severance or
indemnification arrangements, agreements, or understandings between the Seller,
on the one hand, and any current or former employees of the Seller (or
Affiliates thereof), on the other hand. The Seller is not, and following the
Closing will not be, obligated by any express or implied contract or agreement
to employ, directly, or as a consultant or otherwise, any person for any
specific period of time or until any specific age.
4.11 Compliance With Laws. The Acquired Business and each of the Acquired
Assets is in compliance with all, and has received no notice of any violation of
any, laws or regulations applicable to the operations of the Acquired Business,
including, but not limited to, the laws and regulations relevant to the use or
utilization of premises, or with respect to which compliance is a condition of
engaging in any aspect of the business of the Acquired Business or utilizing any
of the Acquired Assets, and the Acquired Business has all permits, licenses,
zoning rights and other governmental authorizations necessary to conduct the
Acquired Business as presently conducted. All such permits, licenses, zoning
rights and other governmental authorizations will, as a part and consequence of
the Transaction, be transferred to the Purchaser at the Closing.
4.12 Ownership of Assets. The Seller has good, marketable and insurable
tide, or valid, effective and continuing leasehold rights in the case of leased
property, to all real property (as to
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which, in the case of owned property, such title is fee simple) and all personal
property owned or leased by the Seller and comprising any part of the Acquired
Assets or the Acquired Business, or used by it in the conduct of the Acquired
Business in such in manner as to create the appearance or reasonable expectation
that the same is owned or leased by the Seller; such ownership is free and clear
of all liens, claims, encumbrances and charges, except liens for taxes not yet
due and minor imperfections of title and encumbrances, if any, which, singly and
in the aggregate, are not substantial in amount and do not materially detract
from the value of the property subject thereto or materially impair the use
thereof; no other person or Entity has any ownership or similar right in, or
contractual or other right to acquire any such right in, any of such assets; and
such ownership will be conveyed to the Purchaser at the Closing pursuant to the
Transaction. The Seller does not know of any potential action by any party,
governmental or other, and no proceedings with respect thereto have been
instituted of which the Seller has notice, that would materially affect the
Purchaser's ability to use and to utilize each of such assets in the business of
the Acquired Business. The Seller has received no notices from any mortgagee
regarding any leased properties of the Acquired Business or the leasehold
interest in which comprises any part of the Acquired Assets.
4.13 Proprietary Rights. The Seller possesses full and complete ownership
of, or adequate and enforceable long-term licenses or other rights to use
(without payment), all Proprietary Rights used in the Acquired Business or
utilized in conjunction with the Acquired Assets, and all such ownership,
license or other rights shall be conveyed to the Purchaser at the Closing
pursuant to the Transaction; the Seller has not received any notice of conflict
which asserts the rights of any other person or Entity with respect thereto; and
the Seller has in all material respects performed all of the obligations
required to be performed by the Seller, and is not in default in any material
respect, pursuant to any agreement relating to any such Proprietary Right.
4.14 Trade Names. The Seller has nor utilized any trade name, fictitious
business name, or other similar name to conduct any part of the Acquired
Business or to utilize any of the Acquired Assets during the ten (10) years
preceding the date of this Agreement.
4.15 Employee Benefit Plans. The Seller does not maintain or contribute to
any Pension Plan or Welfare Plan, nor is the Seller presently, nor has the
Seller been within the last six (6) years, a participating employer in any
Multiemployer Plan, affecting, in any case, employees of the Acquired Business
or employees of the Seller.
4.16 Facilities. The Acquired Facilities are (as to physical plant and
structure) structurally sound and none of the Acquired Facilities, nor any of
the vehicles or other equipment used by the Seller in connection with the
Acquired Business, has any material defects and all of them are in all material
respects in good operating condition and repair and are adequate for the uses to
which they are being put; none of such Acquired Facilities, vehicles or other
equipment is in need of maintenance or repairs except for ordinary, routine
maintenance and repairs which are not material in nature or cost. The Seller is
not in breach, violation or default of any lease affecting the Acquired Business
or the Acquired Assets with respect to, or as a result of, which the other party
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(whether lessor, lessee, sublessor, or sublessee) thereto has the right to
terminate the same, and the Seller has not received notice of any claim or
assertion that the Seller is or may be in any such breach, violation or default.
4.17 Accounts Receivable. All accounts receivable of the Seller, whether or
not specified on the Seller Balance Sheet, represent transactions in the
ordinary course of business, and are current and collectible net of any reserves
specified on the Seller Balance Sheet (which reserves are adequate and were
calculated consistent with past practice).
4.18 Inventories. All Inventories of the Seller are of a quality and
quantity usable and salable in the ordinary course of business, except for
obsolete items and items of below-standard quality, all of which, in the
aggregate, are immaterial in amount. Items included in such Inventories are
carried on the books of the Seller at the lower of cost or market and, in any
event, at not greater than their net realizable value, on an item by item basis,
after appropriate deduction for costs of completion, marketing costs,
transportation expenses and allocation of overhead.
4.19 Contracts. The Schedule 4.19 to this Agreement specifies all
contracts, agreements, or understandings, whether express or implied, written or
verbal, to which the Seller is a party. Schedule 4.19 to this Agreement also
specifies a brief summary of each such contract, agreement or understanding
identified therein. Without in any respect limiting the foregoing, Schedule 4.19
to this Agreement specifies a description of all leases of properties by the
Seller, including all amendments, supplements, extensions and modification
thereof, identifying, inter alia, the dare each such document was executed and
its effective period. The Seller is not a party to any executory contract to
sell or transfer any part of any leasehold interest of the Seller. True and
accurate copies of all leases, and of all amendments, supplements, extensions,
modifications thereof, have heretofore been delivered to the Purchaser by the
Seller.
4.20 Accounts Payable. The accounts payable specified on the Seller Balance
Sheet do, and those specified in the most recent balance sheet included in the
Unaudited Financial Statements do, and those specified on the books and records
of the Seller at the time of the Closing will, specify all amounts owed by the
Seller in respect of trade accounts due and other Payables, and the actual
Liabilities of the Seller in respect of such obligations was not, and will not
be, on any of such dates, in excess of the amounts so specified on the balance
sheets or the books and records of the Seller, as the case may be.
4.21 Labor Matters. There are no activities or controversies, including,
but not limited to, any labor organizing activities, election petitions or
proceedings, proceedings preparatory thereto, unfair labor practice complaints,
labor strikes, disputes, slowdowns, or work stoppages, pending or, to the best
of the knowledge of the Seller, threatened, affecting employees of the Seller.
4.22 Insurance. The Seller has insurance policies in full force and effect
insuring the Acquired Assets and the Acquired Business, and such insurance
policies provide for coverages which are usual and customary `in the business of
the Acquired Business as to amount and scope,
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and arc adequate to protect the Acquired Business and the Acquired Assets
against any reasonably foreseeable risk of loss, including business
interruption. The Seller has not within the past three (3) years received any
notice of cancellation of any insurance agreement affecting the Acquired Assets
or the Acquired Business.
4.23 Title to and Utilization of Real Properties. The Seller owns fee,
simple, insured title to all real property included in the Acquired Assets and
has the unfettered right to use the same, and is not aware of any claim, notice
or threat to the effect that the Seller's right to own and use such property is
subject in any way to any challenge, claim, assertion of rights, proceeding
toward condemnation or confiscation, in whole or in part, or is otherwise
subject to challenge. Each parcel of real property the ownership of, or
leasehold interest in, which is included among the Acquired Assets is free of
any and all hazardous wastes, toxic substances, or other types of contamination
or matters of environmental concern, and the Seller is not subject to any
liability resulting from or related to any such wastes, substances, contaminants
or matters of environmental concern in connection with any such property. The
Seller has, in conjunction with acquiring ownership of, or any leasehold
interest in, each parcel of real property the ownership of, or leasehold
interest in, which is included among the Acquired Assets, (i) caused an audit
and examination to be made as to the existence of any hazardous wastes, toxic
substances or other types of contamination or matters of environmental concern
affecting each such property, which examination indicated that such property was
free of any such wastes, substances, contaminants or other matters of
environmental concern, and the Seller has delivered a copy of the report of such
audit and examination to the Purchaser; and (ii) obtained an appropriate policy
of title insurance insuring the interest of the Seller in such property, which
insurance policy was not subject to any exceptions not reasonably acceptable in
the ordinary course of business, and a copy of which has been delivered to the
Purchaser.
4.24 Full Disclosure. The documents, certificates, and other writings
furnished or to be furnished by or on behalf of the Seller to the Purchaser
pursuant to the provisions of this Agreement, taken together in the aggregate,
do not and will not contain any untrue statement of a material fact, or omit to
specify any material fact necessary to make the information specified,
considering the circumstances pursuant to which such information was specified,
not misleading.
4.25 Actions Since Seller Balance Sheet Date. Since the date of the Seller
Balance Sheet, the Seller has taken no actions that would be prohibited pursuant
to the provisions of this Agreement (without the prior consent of the Purchaser)
after the date of this Agreement.
4.26 The Seller's Acquisition Intention. Seller represents and confirms to
the Purchaser that it (i) is an "accredited investor" within the meaning of Rule
501(a) pursuant to the Securities Act or, if not such an accredited investor,
has, alone or together with a purchaser representative within the meaning of
Rule 501(b) pursuant to the Securities Act, such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of an investment in the Purchaser's securities; (ii) is aware of the
limits on resale of the Subject Shares imposed because of the nature of the
Transaction (Rule 144); and (iii) is receiving the Subject
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Shares without registration pursuant to the Securities Act, in reliance on that
exemption from registration and prospectus delivery requirements of the
Securities Act specified by Regulation S promulgated pursuant to the Securities
Act for investment, and without any intent to sale, resale, or otherwise
distribute the Subject Shares in any manner that is in violation of the
Securities Act. The certificates representing the Subject Shares, when delivered
to the Seller at the Closing, may have appropriate orders restricting transfer
placed against them on the records of the transfer agent for such securities,
and may have placed upon them the following legend:
THE SECURITIES REPRESENTED BY THIS INSTRUMENT OR DOCUMENT HAVE BEEN
ACQUIRED FOR INVESTMENT ONLY AND HAVE NOT BEEN REGISTERED PURSUANT TO THE
PROVISIONS OF THE SECURITIES ACT OF 1933 AS AMENDED ("ACT"), AND HAVE BEEN
OFFERED AND SOLD IN RELIANCE UPON THE EXEMPTION SET FORTH IN REGULATION S
PROMULGATED PURSUANT THERETO. WITHOUT SUCH REGISTRATION AND UNTIL THE COMPANY
BECOMES A "REPORTING COMPANY", SUCH SECURITIES MAY NOT BE SOLD, TRANSFERRED,
ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF, EXCEPT IN A MANNER
ALLOWED BY REGULATION S AND UPON DELIVERY TO THE COMPANY OF AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED FOR
SUCH TRANSFER OR THE SUBMISSION TO THE COMPANY OF SUCH OTHER EVIDENCE AS MAY BE
SATISFACTORY TO THE COMPANY TO THE EFFECT THAT ANY SUCH TRANSFER SHALL NOT BE IN
VIOLATION OF THE ACT, APPLICABLE SECURITIES LAWS OR ANY RULE OR REGULATION
PROMULGATED THEREUNDER.
Seller shall not transfer or attempt any transfer of any the Subject Shares
without first complying with the substance of that legend, and satisfaction of
the Purchaser may, if the Purchaser so requests, depend in part upon an opinion
of counsel acceptable in form and substance to the Purchaser, a no-action letter
of the SEC, or equivalent evidence. Seller acknowledges, without limitation,
that the foregoing agreement and representation shall apply to the Subject
Shares issued to Seller.
ARTICLE V
COVENANTS OF THE PURCHASER
5.1 Affirmative Covenants. From the date of this Agreement through the
Closing Date, the Purchaser will take every action reasonably required of the
Purchaser in order to satisfy the conditions to Closing set forth in this
Agreement and otherwise to ensure the prompt and expedient consummation of the
Transaction, substantially as contemplated by this Agreement and will exert all
reasonable efforts to cause the Transaction to be consummated; provided,
however, in all instances that the representations and warranties of the Seller
in this Agreement are and remain true and accurate and that the covenants and
agreements of the Seller in this Agreement are honored and that the conditions
to the obligations of the Purchaser set forth in this Agreement are not
incapable of satisfaction.
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5.2 Cooperation. The Purchaser shall cooperate with the Seller and its
counsel, accountants and agents in every way in closing and consummating the
Transaction and in delivering all documents and instruments deemed reasonably
necessary or useful by counsel to the Seller.
5.3 Expenses. Whether or not the Transaction is consummated, all costs and
expenses incurred by the Purchaser in connection with this Agreement and the
Transaction shall be paid by the Purchaser.
5.4 Publicity. Prior to the Closing any written news releases by the
Purchaser pertaining to this Agreement or the Transaction shall be submitted to
the Seller for review and approval prior to release by the Purchaser, and shall
be released only in a form approved by the Seller; provided, however, that (i)
such approval shall not be unreasonably withheld, and (ii) such review and
approval shall not be required of releases by the Purchaser, if prior review and
approval would prevent the timely and accurate dissemination of such press
release as required to comply, in the judgment of counsel, with any applicable
law, rule or policy.
5.5 Access and Information. The Purchaser shall provide to the Seller and
to the Seller's accountants, counsel, and other representatives reasonable
access during normal business hours throughout the period prior to the Closing
to all of the Purchaser's properties, books, contracts, commitments, records
(including, but not limited to, tax returns) and personnel relating to the
Purchaser and, during such period, the Purchaser shall furnish promptly to the
Seller (i) all written communications relating to the business of the Purchaser,
(ii) internal monthly financial statements of the Purchaser when and as
available, and (iii) all other information relating to the business of the
Purchaser, as the Seller may reasonably request, but no investigation pursuant
to this Section 5.5 shall affect any representations or warranties of the
Purchaser or the conditions to the obligations of the Seller to consummate the
Transaction. In the event of the termination of this Agreement, the Seller will,
and will cause its representatives to, deliver to the Purchaser or, upon
Purchaser's request, destroy all documents, work papers and other material, and
all copies thereof, obtained by the Seller or on the Seller's behalf from the
Purchaser as a result of this Agreement or in connection with this Agreement or
the Transaction, whether so obtained before or after the execution of this
Agreement, and will hold in confidence all confidential information that has
been designated as such by the Purchaser in writing or by appropriate and
obvious notation and will not use any such confidential information, except in
connection with the Transaction, until such time as such information is
otherwise publicly available. Seller and its representatives shall assert their
rights pursuant to this Section 5.5 in such manner as to minimize interference
with the business of the Purchaser.
5.6 Conduct of Business Pending the Transaction. Prior to the consummation
of the Transaction or the termination of this Agreement pursuant to its terms,
unless the Seller shall otherwise consent in writing, which consent shall not be
unreasonably withheld or delayed, and except as otherwise contemplated by this
Agreement, the Purchaser will comply with each of the following:
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(1) The business of the Purchaser will be conducted only in the ordinary
and usual course, the Purchaser shall keep intact the business
organization and goodwill of the Purchaser's business, keep available
the services of the employees of the Purchaser and maintain good
relationships with suppliers, lenders, creditors, distributors,
employees, customers and others having business or financial
relationships with the Purchaser, and the Purchaser shall immediately
notify the Seller of any event or occurrence or emergency material to,
and not in the ordinary and usual course of business of, the
Purchaser;
(2) The Purchaser shall not create, incur or assume any long-term or
short-term indebtedness for money borrowed or make any capital
expenditures or commitment for capital expenditures, affecting the
business of the Purchaser;
(3) The Purchaser shall not (a) adopt, enter into, or amend any bonus,
profit sharing, compensation, stock option, warrant, pension,
retirement, deferred compensation, employment, severance, termination,
or other employee benefit plan, agreement, trust fund, or arrangement
for the benefit or welfare of any employees of the Purchaser or (b)
agree to any material (in relation to historical compensation)
increase in the compensation payable or to become payable to, or any
increase in the contractual term of employment of, any such employee;
(4) The Purchaser shall not sell, lease, mortgage, encumber, or otherwise
dispose of or grant any interest in any of its assets;
(5) The Purchaser shall not enter into, or terminate, any material
contract, agreement, commitment, or understanding relating to or
affecting the business of the Purchaser;
(6) The Purchaser shall not enter into any agreement, commitment, or
understanding, whether in writing or otherwise, with respect to any of
the matters referred to in subparagraphs (1) through (5) above;
(7) The Purchaser will continue properly and promptly to file when due all
federal, state, local, foreign and other tax returns, reports and
declarations required to be filed by the Purchaser, and will pay, or
make full and adequate provision for the payment of, all taxes and
governmental charges due from or payable by the Purchaser;
(8) The Purchaser will comply with all laws and regulations applicable to
the operations of the Purchaser;
(9) The Purchaser shall not issue or agree to issue any additional shares
of, or rights of any kind to acquire any shares of, the Purchaser's
capital stock of any class, or
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enter into any contract, agreement, commitment, or arrangement with
respect to any of the foregoing; and
(10) The Purchaser will maintain in full force and effect insurance
coverage relating to the Purchaser's business of a type and amount
customary in the business of the Purchaser (but not less than that
presently in effect).
5.7 Updating of Exhibits. The Purchaser shall notify the Seller of any
changes, additions or events which may cause any change in or addition or events
to any schedules or exhibits delivered by the Purchaser pursuant to this
Agreement, promptly after the occurrence of the same and at the Closing by the
delivery of updates of all schedules and exhibits. No notification made pursuant
to this section shall be deemed to cure any breach of any representation or
warranty made in this Agreement, unless the Seller specifically agrees thereto
in writing nor shall any such notification be considered to constitute or be a
waiver by the Seller of any condition set forth in this Agreement.
5.8 Issuance and delivery of the Subject Shares. On the Closing, the
Purchaser shall issue and deliver or caused to be issued and delivered to the
Seller a certificate evidencing three million eight hundred thousand (3,800,000)
shares of the Purchaser's $.0001 par value common stock; which certificate shall
specify appropriate legend regarding the restricted nature of those shares;
ARTICLE VI
COVENANTS OF THE SELLER
6.1 Affirmative Covenants. From the date of this Agreement through the
Closing Date, the Seller will take every action reasonably required of the
Seller to satisfy the conditions to closing set forth in this Agreement and
otherwise to ensure the prompt and expedient consummation of the Transaction
substantially as contemplated hereby and will exert all reasonable efforts to
cause the Transaction to be consummated; provided, however, in all instances
that the representations and warranties of the Purchaser in this Agreement are
and remain true and accurate and that the covenants and agreements of the
Purchaser in this Agreement are correct and that the conditions to the
obligations of the Seller set forth in this Agreement are not incapable of
satisfaction.
6.2 Name. The Seller agrees that following consummation of the Transaction,
neither the Seller nor any Entity the Seller Controls or Affiliate of the Seller
shall make any attempt to make any use of any name pursuant to which the Seller
has conducted the Acquired Business, or authorize any other person or Entity to
do so, without the consent of the Purchaser.
6.3 Access and Information. The Seller shall provide to the Purchaser and
to the Purchaser's accountants, counsel and other representatives reasonable
access during normal business hours throughout the period prior to the Closing
to all of its properties, books, contracts,
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commitments, records (including, but not limited to, tax returns) and personnel
relating to the Acquired Assets or the Acquired Business and, during such
period, the Seller shall furnish promptly to the Purchaser (i) all written
communications relating to the Acquired Assets or the Acquired Business, (ii)
internal monthly financial statements of the Acquired Business when and as
available, and (iii) all other information relating to the Acquired Assets or
the Acquired Business as the Purchaser may reasonably request, but no
investigation pursuant to this Section 6.3 shall affect any representations or
warranties of the Seller, or the conditions to the obligations of the Purchaser
to consummate the Transaction. In the event of the termination of this
Agreement, the Purchaser will, and will cause the Purchaser's representatives
to, deliver to the Seller or, upon Seller's request, destroy all documents, work
papers, and other material, and all copies thereof, obtained by the Purchaser or
on the Purchaser's behalf from the Seller as a result of this Agreement or in
connection with this Agreement or the Transaction, whether so obtained before or
after the execution of this Agreement, and will hold in confidence all
confidential information that has been designated as such by the Seller in
writing or by appropriate and obvious notation, and will not use any such
confidential information except in connection with the Transaction, until such
time as such information is otherwise publicly available. Purchaser and its
representatives shall assert their rights pursuant to this Section 6.3 in such
manner as to minimize interference with the business of the Seller.
6.4 No Solicitation. The Seller and those acting on behalf of the Seller
will not, and the Seller will use its best efforts to cause its employees,
agents, and representatives (including any investment banker) not, directly or
indirectly, to solicit, encourage, or initiate any discussions with, or
negotiate or otherwise deal with, or provide any information to, any person or
Entity other than the Purchaser and its officers, employees, and agents,
relating to the Acquired Assets or the Acquired Business. The Seller will notify
the Purchaser immediately upon receipt of any inquiry, offer or proposal
relating to any of the foregoing. None of the foregoing shall prohibit providing
information to others in a manner in keeping with the ordinary conduct of the
Seller's business, or providing information to government authorities.
6.5 Conduct of Business Pending the Transaction. The Seller covenants and
agrees with the Purchaser that, prior to the consummation of the Transaction or
the termination of this Agreement pursuant to its terms, unless the Purchaser
shall otherwise consent in writing, which consent shall not be unreasonably
withheld or delayed, and except as otherwise contemplated by this Agreement, the
Seller will comply with each of the following:
(1) The Acquired Business, and the other businesses of the Seller that
relate to, use or affect the Acquired Assets, if any, will be
conducted only in the ordinary and usual course, the Seller shall keep
intact the business organization and goodwill of the Acquired
Business, keep available the services of the employees of the Seller
and maintain good relationships with suppliers, lenders, creditors,
distributors, employees, customers and others having business or
financial relationships with the Acquired Business, and the Seller
shall immediately notify the Purchaser of any event or occurrence or
emergency material to, sand not in the ordinary and usual
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course of business of, the Acquired Business or affecting any material
part of the Acquired Assets;
(2) The Seller shall not create, incur or assume any long-term or
short-term indebtedness for money borrowed or make any capital
expenditures or commitment for capital expenditures, affecting the
Acquired Business or any of the Acquired Assets, except in the
ordinary course of business and consistent with past practice;
(3) The Seller shall not (a) adopt, enter into, or amend any bonus, profit
sharing, compensation, stock option, warrant, pension, retirement,
deferred compensation, employment, severance, termination, or other
employee benefit plan, agreement, trust fund, or arrangement for the
benefit or welfare of any employees of the Seller, or (b) agree to any
material (in relation to historical compensation) increase in the
compensation payable or to become payable to, or any increase in the
contractual term of employment of, any such employee;
(4) The Seller shall not sell, lease, mortgage, encumber, or otherwise
dispose of or grant any interest in any of the Acquired Assets except
for sales, encumbrances and other dispositions or grants in the
ordinary course of business of the Acquired Business and consistent
with past practice and except for liens for taxes not yet due or liens
or encumbrances that are not material in amount or effect and do not
impair the use of the property, or as specifically provided for or
permitted in this Agreement;
(5) The Seller shall not enter into, or terminate, any material contract,
agreement, commitment, or understanding relating' to or affecting the
Acquired Assets or the Acquired Business;
(6) The Seller shall not enter into any agreement, commitment, or
understanding, whether in writing or otherwise, wit respect to any of
the matters referred to in subparagraphs (1) through (5) above;
(7) The Seller will continue properly and promptly to file when due all
federal, state, local, foreign and other tax returns, reports and
declarations required to be filed by it relating to the Acquired
Assets or the Acquired Business, and will pay, or make full and
adequate provision for the payment of, all taxes and governmental
charges due from or payable by the Seller relating to the Acquired
Assets or the Acquired Business;
(8) The Seller will comply with all laws and regulations applicable to the
operations of the Acquired Business and the utilization of the
Acquired Assets; and
(9) The Seller will maintain in full force and effect insurance coverage
relating to the
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Acquired Assets and the Acquired Business of a type and amount
customary in the business of the Acquired Business (but not less than
that presently in effect).
6.6 Cooperation. The Seller will cooperate with the Purchaser and the
Purchaser's counsel, accountants and agents in every way in consummating and
closing the Transaction and in delivering all documents and instruments deemed
reasonably necessary or useful by the Purchaser.
6.7 Expenses. Whether or not the Transaction is consummated, all costs and
expenses incurred by the Seller in connection with this Agreement and the
Transaction shall be paid by the Seller.
6.8 Publicity. Prior to the Closing any written news releases by the Seller
relating to this Agreement or the Transaction shall be submitted to the
Purchaser for review and approval prior to release by the Seller, and shall be
released only in a form approved by the Purchaser.
6.9 Updating of Exhibits and Disclosure Documents. The Seller shall notify
the Purchaser of any changes, additions, or events which may cause any change in
or addition to any schedules or exhibits delivered by the Seller pursuant to
this Agreement promptly after the occurrence of the same and again at the
Closing by delivery of appropriate updates to all such schedules and exhibits.
No such notification made pursuant to this section shall be deemed to cure any
breach of any representation or warranty made in this Agreement, unless the
Purchaser specifically agrees thereto in writing nor shall any such notification
be considered to constitute or be a waiver by the Purchaser of any condition set
forth in this Agreement.
6.10 Payment of Unassumed Liabilities. The Seller agrees promptly to pay
when due, or otherwise to discharge, without cost or expense to the Purchaser,
each and every Liability of the Seller that is not specifically assumed by the
Purchaser pursuant to this Agreement, as described in Section 2.1 of this
Agreement.
6.11 Continued Action Regarding Exemption. The Seller shall take any and
all additional action which is necessary or appropriate to maintain that
exemption from the registration and prospectus delivery requirements of the
Securities Act provided by Regulation S promulgated pursuant to the Securities
Act.
ARTICLE VII
CONDITIONS TO CLOSING
7.1 Conditions to Obligation of Purchaser. The obligation of the Purchaser
to effect and consummate the Transaction shall be subject to the fulfillment at
or prior to the Closing of the following conditions, unless the Purchaser shall
waive such fulfillment in writing:
(1) This Agreement and the Transaction shall have received all approvals,
consents, authorizations, and waivers from governmental and other
regulatory agencies and
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other third parties (including lenders, holders of debt securities and
lessors) required to consummate the Transaction;
(2) There shall not be in effect a preliminary or permanent injunction or
other order by any federal or state court which prohibits the
consummation of the Transaction;
(3) The Seller shall have performed in all material respects each of the
Seller's agreements and obligations specified in this Agreement and
required to be performed on or prior to the Closing and shall have
complied with all material requirements, rules, and regulations of all
regulatory authorities having jurisdiction relating to the
Transaction;
(4) No material adverse change shall, in the judgment of the Purchaser,
have taken place in the business condition (financial or otherwise),
operations, or prospects of the Acquired Business or the Acquired
Assets since the date of this Agreement other than those, if any, that
result from the changes permitted by this Agreement;
(5) The representations and warranties of the Seller set forth in this
Agreement shall be true in all material respects as of the date of
this Agreement and, except in such respects as, in the judgment of the
Purchaser, do not materially and adversely affect the business,
condition (financial or otherwise), operations, or prospects of the
Acquired Business or the Acquired Assets, as of the Closing, as if
made as of the Closing; and
(6) The Purchaser shall have received from the Seller an officers'
certificate, executed by the Chief Executive Officer and Chief
Financial Officer of the Seller (in their capacities as such), dated
the Closing Date, as to the satisfaction of the conditions in
Paragraphs (3), (4), and (5) of this section (to the best of their
knowledge).
7.2 Conditions to Obligation of the Seller. The obligation of the Seller to
effect the Transaction shall be subject to the fulfillment at or prior to the
Closing of the following conditions, unless the Seller shall waive such
fulfillment in writing:
(1) This Agreement and the Transaction shall have received all approvals,
consents, authorizations, and waivers from governmental and other
regulatory agencies and other third parties (including lenders,
holders of debt securities and lessors required by law to consummate
the Transaction;
(2) There shall not be in effect a preliminary or permanent injunction or
other order by any federal or state authority which prohibits the
consummation of the Transaction.
(3) The Purchaser shall have performed in all material respects the
Purchaser's agreements and obligations specified in this Agreement
required to be performed on or prior to the Closing;
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(4) The representations and warranties of the Purchaser set forth in this
Agreement shall be true in all material respects as of the date of
this Agreement and, except in such respects as do not materially and
adversely affect the business of the Purchaser, as of the Closing Date
as if made as of the Closing Date; and
(5) The Seller shall have received from the Purchaser an officers'
certificate, executed by the Chief Financial Officer and the Chief
Executive Officer of the Purchaser (in their capacities as such),
dated the Closing Date, as to the satisfaction of the conditions of
Paragraphs (3) and (4) of this section (to the best of their
knowledge).
ARTICLE VIII
DOCUMENTS AND INSTRUMENTS TO BE DELIVERED AT CLOSING
8.1 The Purchaser to the Seller. On the Closing, the Purchaser shall
deliver or cause to be delivered the following instruments and documents to the
Seller:
(1) A certificate evidencing and representing three million eight hundred
thousand (3,800,000) shares of the Purchaser's $.0001 par value common
stock (the Subject Shares), which certificate shall specify the
appropriate legend regarding the restricted nature of those Subject
Shares; and
(2) The Officers' Certificate contemplated by the provisions of Paragraph
(5) of Section 7.2 of this Agreement.
8.2 The Seller to the Purchaser. On the Closing, the Seller shall deliver
or cause to be delivered the following instruments and documents to the
Purchaser:
(1) A Xxxx of Sale, executed by the President and the Secretary of the
Seller, pursuant to which title to the Acquired Assets are transferred
and vested in the Purchaser;
(2) All books, records, journals, disks, checks, minute books, documents,
memoranda and other instruments relating to the business of the Seller
which are necessary or appropriate to enable the Purchaser to carry on
and conduct the business and affairs of the Acquired Business and to
utilize the Acquired Assets after the Closing; and
(3) The officers' Certificate contemplated by the provisions of Paragraph
(6) of Section 7.1 of this Agreement.
ARTICLE IX
TERMINATION, AMENDMENT WAIVER
9.1 Termination. This Agreement and the Transaction may be terminated at
any time prior to the Closing:
(1) By mutual consent of the Purchaser and the Seller; or
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(2) By either Purchaser or the Seller, upon written notice to the other,
if the conditions to such party's obligations to consummate the
Transaction, in the case of Purchaser, as specified in Section 7.1 of
this Agreement, or, in the case of the Seller, as provided in Section
7.2 of this Agreement, were not, or cannot reasonably be, satisfied on
or before December __, 1999, unless the failure of condition is the
result of the material breach of this Agreement by the party seeking
to terminate this Agreement.
9.2 Amendment. This Agreement may be amended by the Purchaser and the
Seller by action taken at any time. This Agreement may not be amended, except by
an instrument in writing signed on behalf of the Purchaser and the Seller.
9.3 Waiver. At any time prior to the Closing, the Purchaser or the Seller
may (i) extend the time for the performance of any of the obligations or other
acts of the other party, (ii) waive any inaccuracies in the representations and
warranties specified in this Agreement or in any document delivered pursuant to
this Agreement, or (iii) waive compliance with any of the agreements or
conditions specified in this Agreement. Any agreement on the part of a party to
any such extension or waiver shall be valid only if set forth in an instrument
in writing signed on behalf of such party.
ARTICLE X
GENERAL PROVISIONS
10.1. Notices. Any notice, direction or instrument required or permitted to
be given pursuant to this Agreement shall be given in writing by (i) telegram,
facsimile transmission or similar method, if confirmed by mail as herein
provided, by mail; (ii) if mailed postage prepaid, by certified mail, return
receipt requested; or (iii) hand delivery to any party at the addresses of the
parties specified, below. If given by telegram or facsimile transmission or
similar method or by hand delivery, such notice, direction or instrument shall
be deemed to have been given or made on the day on which it was given, and if
mailed, shall be deemed to have been given or made on the second (2nd) business
day following the day after which it was mailed. Any party may, from time to
time by similar notice, give notice of any change of address, and in such event,
the address of such party shall be deemed to be changed accordingly. The
address, telephone number and facsimile transmission number for the notice of
each party are:
If to Seller: Rising Phoenix Development Group Ltd.
000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
If to Purchaser: Power Direct, Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
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10.2. Indemnification Seller shall save Purchaser harmless from and against
and shall indemnify Purchaser for any liability, loss, costs, expenses or
damages howsoever caused by reason of any injury (whether to body, property or
personal or business character or reputation) sustained by any person or to
property by reason of any act, neglect, default or omission of Seller or any of
Seller's agents, employees or other representatives, and Seller shall pay all
amounts to be paid or discharged in case of an action or any such damages or
injuries. If Purchaser is sued in any court for damages by reason of any of the
acts of Seller, Seller or such other party shall defend the resulting action (or
cause same to be defended) at Seller's expense and shall pay and discharge any
judgment that may be rendered in any such action; if Seller fails or neglects to
so defend in such action, Purchaser may defend such action and any expenses,
including reasonable attorneys' fees, which Purchaser may pay or incur in
defending such action and the amount of any judgment which Purchaser may be
required to pay shall be promptly reimbursed by Seller upon demand by Purchaser.
10.3 Recovery of Enforcement Costs. In the event either party shall
institute any action or proceeding to enforce any provision of this Agreement to
seek relief from any violation of this Agreement, or to otherwise obtain any
judgment or order relating to or arising from the subject matter of this
Agreement, the prevailing party shall be entitled to receive from the losing
party such prevailing party's actual attorneys' fees and costs incurred to
prosecute or defend such action or proceeding.
10.4 Assignment. Neither party shall have the right, without the consent of
the other party, to assign, transfer, sell, pledge, hypothecate, delegate, or
otherwise transfer, whether voluntarily, involuntarily or by operation of law,
any of such party's rights or obligations created by the provisions of this
Agreement, nor shall the parties' rights be subject to encumbrance or the claim
of creditors. Any such purported assignment, transfer, or delegation shall be
null and void.
10.4. Captions and Interpretations. Captions of the articles, sections and
paragraphs of this Agreement are for convenience and reference only, and the
works specified therein shall in no way be held to explain, modify, amplify or
aid in the interpretation, construction, or meaning of the provisions of this
Agreement. The language in all parts to this Agreement, in all cases, shall be
construed in accordance with the fair meaning of that language as if prepared by
all parties and not strictly for or against any party. Each party and counsel
for such party have reviewed this Agreement. The rule of construction, which
requires a court to resolve any ambiguities against the drafting party, shall
not apply in interpreting the provisions of this Agreement.
10.5 Entire Agreement. This Agreement and the exhibits to this Agreement
are the final written expression and the complete and exclusive statement of all
the agreements, conditions, promises, representations, warranties and covenants
between the parties with respect to the subject matter of this Agreement, and
this Agreement supersedes all prior or contemporaneous agreements, negotiatons,
representations, warranties, covenants, understandings and discussions by and
between and among the parties, their respective representatives, and any other
person, with respect to the subject matter specified in this Agreement. No
provision of any exhibit or schedule to this Agreement shall supersede or annul
the terms and provisions of this Agreement, unless the
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matter specified in such exhibit or schedule shall explicitly so provide to the
contrary, in the event of ambiguity in meaning or understanding between the
provisions of this Agreement proper and the appended exhibits or schedules, the
provisions of this Agreement shall prevail and control in all instances.
10.6 Choice of Law. This Agreement shall be deemed to have been entered
into in the State of Delaware. All questions concerning the validity,
interpretation, or performance of any of the terms, conditions and provisions of
this Agreement or of any of the rights or obligations of the parties shall be
governed by, and resolved in accordance with, the laws of the State of Delaware
without regard to conflicts of law principles.
10.7 Number and Gender. Whenever the singular number is used in this
Agreement and, when required by the context, the same shall include the plural,
and vice versa; the masculine gender shall include the feminine and the neuter
genders, and vice versa.
10.8 Successors and Assigns. This Agreement and each of its provisions
shall obligate the heirs, executors, administrators, successors, and assigns of
each of the parties. Nothing specified in this article, however, shall be a
consent to the assignment or delegation by any party of such party's respective
rights and obligations created by the provisions of this Agreement.
10.9 Third Party Beneficiaries. Except as expressly specified by the
provisions of this Agreement, this Agreement shall not be construed to confer
upon or give to any person, other than the parties hereto, any right, remedy or
claim pursuant to, or by reason of, this Agreement or of any term or condition
of this Agreement.
10.10 Severability. In the event any part of this Agreement, for any
reason, is determined by a court of competent jurisdiction to be invalid, such
determination shall not affect the validity of any remaining portion of this
Agreement, which remaining portion shall remain in full force and effect as if
this Agreement had been executed with the invalid portion thereof eliminated. It
is hereby declared the intention of the parties that they would have executed
the remaining portion of this Agreement without including any such part, parts,
or portion which, for any reason, may be hereafter determined to be invalid.
10.11 Governmental Rules and Regulations. The transactions contemplated by
the provisions of this Agreement are and shall remain subject to any and all
present and future orders, rules and regulations of any duly constituted
authority having jurisdiction of that transaction.
10.12 Execution in Counterparts. This Agreement may be prepared in multiple
copies and forwarded to each of the parties for execution. All of the signatures
of the parties may be affixed to one copy or to separate copies of this
Agreement and when all such copies are received and signed by all the parties,
those copies shall constitute one agreement which is not otherwise separable or
divisible. Counsel for the Purchaser shall keep all of such signed copies and
shall conform one copy to show all of those signatures and the dates thereof and
shall mail a copy of such conformed copy to each of the parties within thirty
(30) days after the receipt by such counsel
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of the last signed copy, and such counsel shall cause one such conformed copy to
be filed in the principal office of such counsel.
10.13 Reservation of Rights. The failure of any party at any time or times
hereafter to require strict performance by any other party of any of the
warranties, representations, covenants, terms, conditions and provisions
specified in this Agreement shall not waive, affect of diminish any right of
such party failing to require strict performance, to demand strict compliance
and performance therewith and with respect to any other provisions, warranties,
terms, and conditions specified in this Agreement. Any waiver of any default
shall not waive or affect any other default, whether prior or subsequent
thereto, and whether the same or of a different type. None of the
representations, warranties, covenants, conditions, provisions and terms
specified in this Agreement shall be deemed to have been waived by any act or
knowledge of any party, its agents, trustees, officers, or employees and any
such waiver shall be made only by an instrument in writing, signed by the
waiving party and directed to any non-waiving party specifying such waiver, and
each party reserves such party's rights to insist upon strict compliance
herewith at all times.
10.14 Survival of Covenants, Representations and Warranties. All covenants,
representations, and warranties made by each party to this Agreement shall be
deemed made for the purpose of inducing the other party to enter into and
execute this Agreement. The representations, warranties, and covenants specified
in this Agreement shall survive the Closing and shall survive any investigation
by either party whether before or after the execution of this Agreement. The
covenants, representations, and warranties of the Seller and the Purchaser are
made only to and for the benefit of the ether and shall not create or vest
rights in other persons.
10.15 Concurrent Remedies. No right or remedy specified in this Agreement
conferred on or reserved to the parties is exclusive of any other right or
remedy specified in this Agreement or by law or equity provided or permitted;
but each such right and remedy shall be cumulative of, and in addition to, every
other right and remedy specified in this Agreement or now or hereafter existing
at law or in equity or by statute or otherwise, and may be enforced concurrently
therewith or from time to time. The termination of this Agreement for any reason
whatsoever shall not prejudice any right or remedy which any party may have,
either at law, in equity, or pursuant to the provisions of this Agreement.
10.16 Force Majeure. If any party is rendered unable, completely or
partially, by the occurrence of an event of "force majeure" (hereinafter
defined) to perform such party's obligations created by the provisions of this
Agreement, such party shill give to the other party prompt written notice of the
event of "force majeure" with reasonably complete particulars concerning such
event; thereupon, the obligations of the party giving such notice, so far as
those obligations are affected by the event of "force majeure," shall be
suspended during, but no longer than, the continuance of the event of "force
majeure." The party affected by such event of "force majeure" shall use all
reasonable diligence to resolve, eliminate and terminate the event of "force
majeure" as quickly as practicable. The requirement that an event of "force
majeure" shall be remedied with all reasonable dispatch as hereinabove
specified, shall not require the settlement of strikes,
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lockouts or other labor difficulties by the party involved, contrary to such
party's wishes, and the resolution of any and all such difficulties shall be
handled entirely within the discretion of the party concerned. The term "force
majeure" as used herein shall be defined as and mean any act of God, strike,
civil disturbance, lockout or other industrial disturbance, act of the public
enemy, war, blockage, public riot, earthquake, tornado, hurricane, lightening,
fire, epidemics, quarantine restrictions, public demonstration, storm, flood,
explosion, freight embargoes, governmental action, governmental delay, restraint
or inaction, unavailability of equipment, default of a party's subcontractors or
suppliers, and any other cause or event, whether of the kind enumerated
specifically herein, or otherwise which is not reasonably within the control of
the party claiming such suspension.
10.17 Consent to Agreement. By executing this Agreement, each party, for
itself represents such party has read or caused to be read this Agreement in all
particulars, and consents to the rights, conditions, duties and responsibilities
imposed upon such party as specified in this Agreement. Each party represents,
warrants and covenants that such party executes and delivers this Agreement of
its own free will and with no threat, undue influence, menace, coercion or
duress, whether economic or physical. Moreover, each party represents, warrants,
and covenants that such party executes this Agreement acting on such party's own
independent judgment.
10.18 Waiver and Modification. No modification, supplement or amendment of
this Agreement or of any covenant, representation, warranty, condition, or
limitation specified in this Agreement shall be valid unless the same is made in
writing and duly executed by both parties. No waiver of any covenant,
representation, warranty, condition, or limitation specified in this Agreement
shall be valid unless the same is made in writing and duly executed by the party
making the waiver. No waiver of any provision of this Agreement shall be deemed,
or shall constitute, a waiver of any other provision, whether or not similar,
nor shall any waiver constitute a continuing waiver.
10.19 Further Assurances. The parties shall from time to time sign and
deliver any further instruments and take any further actions as may be necessary
to effectuate the intent and purposes of this Agreement.
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be signed in
duplicate on the date first written above by their respective officers thereunto
duly authorized.
Power Direct, Inc.,
a Delaware corporation
By: /s/ Xxxx Sha
--------------------------------
Xxxx Sha
Its: President
By: /s/ Ferdinand Marehard
--------------------------------
Ferdinand Marehard
Its: Secretary
Rising Phoenix Development Ltd.,
a British Columbia corporation
By: /s/ Xxxxxx Xxxxx
--------------------------------
Xxxxxx Xxxxx
Its: President
By: [ILLEGIBLE]
--------------------------------
Its: Secretary
/s/ Xxxxxxx Xxxxx
--------------------------------
Xxxxxxx Xxxxx
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