Exhibit 10.11
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT is entered into as of January 15th, 2002 by and
between New BitSnap N.V., a corporation existing under the laws of Belgium with
it's registered address at Xavier xxXxxxxxxx 00, 0000, Xxxxxx, Xxxxxxx (the
"Seller") and Remedent N.V.("Purchaser"), a Belgium corporation,
WITNESETH:
WHEREAS, Seller, owns and operates an office facility located at Xxxxxx xx
Xxxxxxxx 00, X-0000, Xxxxxx (the "Facility"), where it's division IMDS conducts
a business of outsourcing dental practitioners to external dental practices (the
"Business"); WHEREAS, Purchaser is an established supplier of professional
dental and oral hygiene products organized for the purpose of developing and
marketing such products; and WHEREAS, subject to the terms and conditions set
forth in this Agreement, Seller desires to sell to Purchaser (or its assignee),
and Purchaser desires to purchase from Seller, substantially all of the Seller's
assets that are used in conduct of the Business. NOW, THEREFORE, the parties
hereto, intending to be legally bound, hereby agree as follows:
1. Purchase, Sale and Assumption
1.1. Agreement to Sell and to Purchase.
On the terms and subject to the conditions set forth herein, Seller agrees to
sell, assign, transfer, convey and deliver to Purchaser, and Purchaser agrees to
purchase and acquire from Seller, at the Closing (as defined herein), all right,
title and interest of Seller in and to the following assets, properties and
rights as they shall exist on the Closing Date (as defined herein):
1.1.1. The inventions, copyrights, patents, trademarks, trade names and
applications, any related trademarks or logos and applications, including
any rights to the ownership and use of the trade names, trade secrets,
proprietary know-how and use and application know-how, product formulae,
practices and promotional literature, goodwill and other intellectual
property and rights, in each case used by Seller in connection with the
Business, including, without limitation, such intellectual property as is
listed on Schedule 1.1.4 IMDS division (collectively, the "Intellectual
Property");
1.1.2. The contracts in force and effect (including deposits related
thereto), leases, agreements and purchase and sale orders of Seller related
to the IMDS Business, including without limitation, all of the contracts,
leases, agreements and orders identified in Schedule 1.1.5 (collectively,
the "Contracts") but excluding those contracts identified connection with
the Business, including, without limitation, those identified in Schedule
1.1.5 (collectively, "the Non-Assigned Contracts");
1.1.3. All computer applications and operating programs used at the
Facility in connection with the Business, including, without limitation,
those identified in Schedule 1.1.6; provided, however, Seller shall retain
a non-exclusive license to use such applications and programs which are
currently used by Seller other than in connection with the Business, but
that Seller shall not be permitted to sub-license or assign such license;
1.1.4. All Permits (as defined in Section 3.9 hereof) listed on Schedule
3.9 hereof; and
1.1.5. All books, documents and records of Seller pertaining to the
Business, wherever located, including, without limitation, accounting,
credit, environmental and personnel records and customer lists; provided,
however, Seller may retain copies of such materials to the extent necessary
for Seller to fulfill its obligations under this Agreement or under other
laws, regulations or understandings by which it is bound.
All such assets, properties and rights, are referred to herein as the "Assets".
1.2. Excluded Assets.
Notwithstanding anything to the contrary set forth above, the
Assets shall not include any cash, negotiable securities, certificates of
deposit, bonds, lock boxes, letters of credit and other cash equivalents, except
as otherwise provided hereunder the rights of Seller under any insurance
policies, the assets of any of Seller's employee benefit plans, and the rights
which would accrue or will accrue to Seller under this Agreement.
1.3. Liabilities Not Assumed.
Purchaser shall have no liability whatsoever for any
liabilities of Seller, including, without limitation, (i) any claim, regardless
of when made or asserted, which arises out of or is based upon any express or
implied representation, warranty, agreement or guarantee made by the Seller, or
alleged to have been made by the Seller, or which is opposed or asserted to be
imposed by operation of law, in connection with any product manufactured,
shipped or installed by or on behalf of the Seller or for any service performed
by or on behalf of the Seller, including, without limitation, any claim relating
to the repair or replacement of any such product and any claim seeking recovery
for property damage, consequential damages, loss, lost revenue or income or
personal injury or (ii) any liability or obligation in respect of any federal,
state or local income or other tax payable with respect to the Business or the
Assets for any period prior to the Closing Date.
2. The Purchase Price; Closing
2.1. Purchase Price.
The purchase price shall be $330,000 the "Purchase Price") payable in 6,000,0000
shares of the Company's common stock at a price per share of common stock to be
determined prior to closing. Such stock will be issued to seller within 3-5
business days of closing, with the Company filing a Registration Statement
within 60 days to be made effective within 90 days.
2.3. The Closing.
Subject to the terms and conditions set forth herein, the closing of the
purchase and sale of the Assets and the Business (the "Closing") shall take
place at Seller's Facility as soon as practicable after the conditions set forth
in Articles 7 and 8 have been satisfied or waived, or at such other time and
place as the parties hereto may agree. (The time of the closing being
hereinafter called the "Closing Date".) All transactions contemplated at the
Closing shall be deemed to be effective (the "Effective Time") as of midnight on
the day preceding the Closing Date (the Closing Date being deemed to commence at
12:01 a.m.), and events taking place, and periods ending after the Effective
Time shall be deemed to have taken place, or ended, after the Closing Date.
2.4. Items to be Delivered at Closing.
At the Closing, and subject to the terms and conditions herein contained:
2.4.1. The Seller will deliver to the Purchaser the following:
a) Such full covenant, bills of sale, assignments, endorsements,
consents and other good and sufficient instruments and documents of
conveyance and transfer in a form satisfactory to the Purchaser and its
counsel, as shall be necessary and effective to convey, transfer and
assign to, and vest in, the Purchaser all of the Seller's right, title
and interest in and to the Assets, including, without limitation all
the Seller's rights under all agreements, contracts, commitments,
leases, plans, quotations, proposals, licenses, permits,
authorizations, software, know-how, instruments, and accounts
receivable documents which are included in the Assets;
b) A copy of all of the resolutions adopted by the Seller's board of
directors and, if necessary, stockholders relating to the transactions
contemplated by this Agreement, certified on the Closing Date to be
complete and correct by the Secretary or an Assistant Secretary of the
Seller; and
c) All of the agreements, contracts, commitments, leases, plans, bids,
quotations, proposals, licenses, permits, authorizations, instruments,
computer programs and software, manuals and guidebooks, price books and
price lists, customer lists, supplier lists, sales records, files,
correspondence, and other documents, books, records, papers, files and
data belonging to the Seller which are part of the Assets or relate to
the Business; provided, however, that Seller may retain copies of such
materials to the extent necessary for Seller to fulfill its obligations
under this Agreement or under other agreements, laws, regulations or
understandings by which it is bound.
2.4.2. The Purchaser will deliver to the Seller the following:
a) Common stock certificate(s) for the Purchase Price as determined
pursuant to Section 2.1;
b) An employment agreement covering the seller and each employee
deemed necessary for the continued operation of the Facility by
both the Seller and Purchaser. Such agreement to be agreed upon by
the Seller and Purchaser based upon the specifics terms of the
employment agreement.
2.4.3. Simultaneously with such deliveries, all such steps will be taken as
may be required to put the Purchaser in actual possession and operating
control of the Business and the Assets.
2.5. Third Party Consents.
To the extent that the Seller's rights under any agreement, contract,
commitment, lease, license, permit, authorization or other asset to be assigned
to the Purchaser hereunder may not be assigned without the consent of another
person which is not obtained by the Closing Date, this Agreement shall not
constitute an agreement to assign the same if an attempted assignment would
constitute a breach thereof or be unlawful. The Seller represents that attached
hereto as Schedule 2.5 is a list of all such consents which are necessary for
agreements other than purchase orders or supply agreements with customers. The
Seller covenants and agrees to use its best efforts to obtain all such required
consents as promptly as possible prior to or after the Closing. If any such
consent shall not be obtained or if any attempted assignment would be
ineffective or would impair the Purchaser's rights under the Asset in question
so that the Purchaser would not in effect acquire the benefit of all such
rights, the Seller, to the maximum extent permitted by law and the Asset, shall
act as the Purchaser's agent in order to obtain for it the benefits thereunder
and shall cooperate, to the maximum extent permitted by law and the Asset, with
the Purchaser in any other reasonable arrangement designed to provide such
benefits to the Purchaser.
2.6. Further Assurances.
The Seller, from time to time after the Closing, at the Purchaser's request,
will execute, acknowledge and deliver to the Purchaser such other instruments of
conveyance and transfer and will take such other actions and execute and deliver
such other documents, certifications and further assurances as the Purchaser may
require in order to vest more effectively in the Purchaser, or to put the
Purchaser more fully in possession of any of the Assets, or to better enable the
Purchaser to complete, perform or discharge any of the liabilities or
obligations assumed by the Purchaser at the Closing.
3. Representations and Warranties of the Seller
The Seller hereby represents and warrants to the Purchaser as follows:
3.1. Corporate Existence.
Seller is a corporation duly organized, validly existing and in good standing
under the laws of Belgium and has all requisite power and authority and all
necessary licenses and permits to carry on its business as it has been and is
now being conducted and to own, lease and operate the properties used in
connection therewith. Seller is duly qualified to do business and is in good
standing as a foreign corporation in Belgium.
3.2. Existing Condition.
To Seller's knowledge and belief, since December 5th, 2001, (the "Shutdown
Date"), Seller, in relation to the Business, has not:
3.2.1. Sold, assigned or transferred any of the assets or other interests
in the Business except in the ordinary course of business consistent
with past practice;
3.2.2. Suffered any damage, destruction or loss, whether or not covered by
insurance, materially and adversely affecting the Assets;
3.2.3. Suffered any material adverse change to the condition of the Assets.
3.3. Title to Properties; Leasehold Interests.
Seller has good, valid and marketable title to all of the Assets, real, personal
and mixed, including all of the properties and assets used by the Business as of
the Shutdown Date and those acquired since the Shutdown Date (except in each
case for Assets sold or otherwise disposed of since the Shutdown Date in the
ordinary course of business consistent with past practice), free and clear of
all mortgages, liens, pledges, security interests, charges, claims, restrictions
and other encumbrances and defects of title of any nature whatsoever, except
liens for current taxes not yet due and payable. To Seller's knowledge and
belief, all leases, licenses, permits and authorizations in any manner related
to the Assets or the Business and all other instruments, documents and
agreements pursuant to which Seller has obtained the right to use any real or
personal property in connection with the Business are in good standing, valid
and effective in accordance with their respective terms, and there is not under
any of such instruments, documents or agreements any existing default or event
which with notice or lapse of time, or both, would constitute a default and in
respect of which Seller has not taken adequate steps to prevent a default from
occurring.
3.4. Condition of Tangible Assets.
To Seller's knowledge and belief all structures, facilities, equipment and other
material items of Personal Property owned or used by Seller in the Business are
in good operating condition and repair, subject to normal wear and maintenance,
are usable in the regular and ordinary course of the Business and conform to all
applicable laws, ordinances, codes, rules and regulations relating to their
construction, use and operation.
3.5. Litigation.
No litigation, arbitration, investigation or other proceeding of or before any
court, arbitrator or governmental or regulatory official, body or authority is
pending or, to Seller's knowledge and belief, threatened against Seller (in
connection with the Business), the Assets, the Business, or the transactions
contemplated by this Agreement, and to Seller's knowledge and belief, there is
not any basis for any such litigation, arbitration, investigation or proceeding.
To Seller's knowledge and belief, Seller is not a party to or subject to the
provisions of any judgment, order, writ, injunction, decree or award of any
court, arbitrator or governmental or regulatory official, body or authority.
3.6. Compliance with Law.
To Seller's knowledge and belief, Seller, in connection with the Business, has
complied with each, and is not in violation of any law, ordinance, or
governmental rule or regulation to which it, the Business, or the Assets is
subject. To Seller's knowledge and belief, neither Seller nor any officer,
employee or agent of, nor any consultant to, Seller in connection with the
Business has unlawfully offered, paid, or agreed to pay, directly or indirectly,
any money or anything of value to, or for the benefit of, any individual who is
or was a candidate for public office, or an official or employee of any
governmental or regulatory body or authority or an officer or employee of any
client, customer or supplier of Seller. To Seller's knowledge and belief, Seller
has not engaged in any transaction, maintained any bank account or used any
corporate funds except for transactions, bank accounts and funds which have been
and are reflected in the normally maintained books and records of Seller.
3.7. Restrictions.
To Seller's knowledge and belief, Seller is not a party to any indenture,
agreement, contract, commitment, lease, plan, license, permit, authorization or
other instrument, document or understanding, oral or written, or subject to any
charter or other corporate restriction or any judgment, order, writ, injunction,
decree or award which materially adversely affects or materially restricts or,
so far as Seller can now reasonably foresee, may in the future materially
adversely affect or materially restrict, the prospects or condition (financial
or otherwise) of the Business or the Assets.
3.8. Conditions Affecting the Business.
To Seller's knowledge and belief, as of the Shutdown Date, there are no
conditions existing with respect to the Business, its markets, products,
services, clients, customers, facilities, personnel or suppliers which are known
to Seller or which should be known to the prudent businessman in charge of
operations of the Business which would adversely affect the Business, considered
as a whole, other than such conditions as may affect as a whole the industry in
which the Business engages.
3.9. Contracts and Commitments.
To Seller's knowledge and belief, Seller, in relation to the Business, is not a
party to any written or oral:
3.9.1. Agreement, contract or commitment with any present or former
shareholder, director, officer, employee or consultant or for the
employment of any person, including any consultant;
3.9.2. Agreement, contract, commitment or arrangement with any labor union
or other representative of employees;
3.9.3. Agreements, contracts or commitments for the future purchase of, or
payment for, supplies or products, or for the performance of services
by a third party, involving the expenditures of $1,000, or more;
3.9.4. Agreements, contracts or commitments to sell or supply products or
to perform services, involving $1,000 in value;
3.9.5. Agreements, contracts or commitments continuing over a period of
more than six months from the date hereof or exceeding $1,000 in
value;
3.9.6. Representative or sales agency agreement, contract or commitment;
3.9.7. Lease under which Seller is either the lessor or lessee;
3.9.8. Agreement, contract or commitment for any charitable or political
contribution;
3.9.9. Agreements, contracts or commitments for any capital expenditure in
excess of $1,000;
3.9.10. Agreement, contract or commitment limiting or restraining it from
engaging or competing in any lines of business with any person, nor was any
officer or employee of the Business subject to any such agreement, contract
or commitment as of the Shutdown Date nor is any officer or employee of the
Business subject to any such agreement, contract or commitment;
3.9.11. License, franchise, distributorship or other agreement, including
those which relate in whole or in part to any patent, trademark, or
copyright or to any ideas, technical assistance or other know-how of or
used by the Business; or
3.9.12. Material agreement or contract not made in the ordinary course of
business.
To Seller's knowledge and belief, each of the agreements, contracts,
commitments, leases and other instruments, documents and undertakings is
valid and enforceable in accordance with is terms, the parties thereto are
in compliance with the provisions thereof, no party is in default in the
performance, observance or fulfillment of any material obligation, covenant
or condition contained therein and no event has occurred which with or
without the giving of notice or lapse of time, or both, would constitute a
default thereunder, furthermore, no such agreement, contract, commitment,
lease or other instrument, document or undertaking, in the reasonable
opinion of the Seller, contains any contractual requirement with which
there is a reasonable likelihood Seller or any other thereto will be unable
to comply.
3.14. No Third Party Options.
There are no existing agreements, options, commitments or rights with, to or in
any person to acquire the Business, any of the Assets or any interest therein,
except for this Agreement and those contracts entered into in the normal course
of business consistent with past practice for the sale of Seller's products and
services. 3.15. Full Disclosure.
To Seller's knowledge and belief, no representation or warranty by Seller in
this Agreement or in any document delivered or to be delivered by Seller
pursuant hereto, and no statement, list, certificate or instrument furnished or
to be furnished to the Purchaser pursuant hereto or in connection with the
negotiation, execution or performance of this Agreement, contains or will
contain any untrue statement of a material fact or omits or will omit to state
any fact necessary to make any statement herein or therein not misleading.
4. Representations and Warranties of the Purchaser
The Purchaser hereby represents and warrants to the Seller as follows:
4.1. Corporate Existence.
The Purchaser is duly organized, validly existing and in good standing under the
laws of the government of Belgium.
4.2. Corporate Power and Authorization.
The Purchaser has the corporate power to execute, deliver and perform this
Agreement. The execution, delivery and performance of this Agreement by the
Purchaser has been duly authorized by all necessary corporate action. This
Agreement has been duly executed and delivered by the Purchaser and constitutes
the legal, valid and binding obligation of the Purchaser enforceable against it
in accordance with its terms.
4.3. Validity of Contemplated Transactions, etc.
The execution and delivery of this Agreement by the Purchaser does not, and,
upon the making of any filings required by Section 7A of the Xxxxxxx Act and the
expiration of the applicable waiting period, the performance of this Agreement
by the Purchaser will not, violate, conflict with or result in the breach of any
term, condition or provision of, or require the consent of any other party to,
(a) any existing law, ordinance, or governmental rule or regulation to which the
Purchaser is subject, (b) any judgment, order, writ, injunction, decree or award
of any court, arbitrator or governmental or regulatory official, body or
authority which is applicable to the Purchaser, (c) the charter documents or
By-Laws of the Purchaser, or (d) any mortgage, indenture, agreement, contract,
commitment, lease, plan or other instrument, document or understanding, oral or
written, to which the Purchaser is a party or by which the Purchaser is bound.
Except for the making of any filings required by Section 7A of the Xxxxxxx Act,
no authorization, approval or consent, and no registration or filing with, any
governmental or regulatory official, body or authority is required in connection
with the execution, delivery and performance of this Agreement by the Purchaser.
5. Additional Covenants of the Parties
5.1. Cooperation and Access.
After the Closing, Purchaser will give Seller and/or its contractors full and
complete access to the Facility for purposes of performing the environmental
remediation and other activities which Seller is required to perform, and
Purchaser will cooperate fully with Seller and its contractors in preparing for
and in performing such activities. In connection therewith, Seller will use all
commercially practicable efforts to ensure that such activities do no unduly
interfere with Purchaser's operation of the Business. Seller will indemnify
Purchaser for any damage to the Facility and for any liability to third persons
which damage or liability is caused by or in connection with Seller's or its
contractors' performance if such activities.
5.2. Interference with the Business.
After the Closing, Seller and each of its employees and affiliates shall not
take any action or engage in any practice which disparages Purchaser, its
products or its employees and which would impair the relationships of the
Purchaser with any customers, employees, suppliers or other persons having any
business dealings with the Purchaser.
5.3. In General.
Except to the extent expressly provided otherwise in this Agreement, Seller
shall be responsible for any and all wages, vacations, holidays, union check off
dues, bereavement pay, personal or sick leave pay, payroll expenses and, other
benefits under any of the Seller's employee benefit plans, arising out of the
employment of employees ( "Employees") by Seller which are earned prior to the
Closing Date (regardless of when such amounts are payable) and Purchaser shall
be responsible for and assume all liability for any and all such amounts (or any
comparable amounts under Purchaser's plans) to Employees that are earned on or
after the Closing Date.
5.4. Grievances.
Seller shall be responsible for (i) the resolution of all filed grievances
attributable to events occurring prior to the Closing Date and (ii) the payment
of any amounts in the nature of back pay or employee compensation in respect of
such grievances for periods before or after the Closing Date and all other
expenses incident thereto.
5.5. Misdirected payments.
The parties agree that any payments received by either of them that are
identified to invoices of the other or otherwise due the other shall promptly be
remitted to the other. Unless some other allocation or distribution of payment
is apparent on the face of the remittance, all payments shall be applied on a
first-in, first-out basis, thus being applied first to accounts receivable
generated on or after the Closing Date. Purchaser and Seller shall exchange
information concerning xxxxxxxx and payments at such intervals and for such
period of time as shall be necessary to facilitate the administration of this
agreement as to collection of accounts receivable.
6. Miscellaneous Provisions
6.1. Entire Agreement; Amendment; Assignment.
This Agreement and the exhibits and schedules appended hereto embody and
constitute the entire understanding between the parties with respect to the
transactions contemplated herein, and all prior agreements, understandings,
representations and statements, oral or written, are merged into this Agreement.
Neither this Agreement nor any provision hereof may be waived, modified,
amended, discharged or terminated except by an instrument signed by the party
against whom the enforcement of such waiver, modification, amendment, discharge
or termination is sought, and then only to the extent set forth in such
instrument
6.2. Notices.
All notices, demands, requests, or other communications which may be or are
required to be given, served or sent by either party to the other party pursuant
to this Agreement, shall be in writing and shall be hand delivered, sent by
guaranteed overnight parcel express service or mailed by registered or certified
mail, return receipt requested, postage prepaid, or transmitted by or telecopy
(with a confirming copy sent by another permitted means), addressed as follows:
6.2.1. If to Seller:
New BitSnap N.V. - IMDS division
Xxxxxx xx Xxxxxxxx 00
X-0000, Xxxxxx
Xxxxxxx
Telefax: x00 0 000 00 00
6.2.2. If to Purchaser:
Remedent X.X.
Xxxxxx xx Xxxxxxxx 00
X-0000, Xxxxxx
Xxxxxxx
Telefax: x00 0 000 00 00
Each party may designate by notice in writing a new address to which any notice,
demand, request or communication may thereafter be so given, served or sent.
Each notice, demand, request, or communication which shall be mailed or
telefaxed in the manner described above, or which shall be delivered to a
telegraph company, shall be deemed sufficiently given, served, sent or received
for all purposes at such time as it is delivered to the addressee (with the
return receipt, the delivery receipt or, with respect to a telefax, the answer
back being deemed conclusive evidence of such delivery) or at such time as
delivery is refused by the addressee upon presentation.
6.3. Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws
of Belgium, without giving effect to the conflicts of laws provisions thereof.
6.4. Captions.
The captions in this Agreement are inserted for convenience of reference only
and in no way define, describe or limit the scope or intent of this Agreement or
any of the provisions hereof.
6.5. Benefit.
This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
6.6. Construction.
As used in this Agreement, the masculine shall include the feminine and neuter,
the singular shall include the plural and the plural shall include the singular,
as the context may require.
6.7. Waiver.
Neither the waiver by either of the parties hereto of a breach of or a default
under any of the provisions of this Agreement, nor the failure of either of the
parties, on one or more occasions, to enforce any of the provisions of this
Agreement or to exercise any right or privilege hereunder shall thereafter be
construed as a waiver of any subsequent breach or default of a similar nature,
or as a waiver of any such provisions, rights, or privileges hereunder.
6.8. Non-Business Days.
If any obligation of a party hereto falls due on a Saturday, Sunday or legal
holiday recognized by the United States Government, then such obligation shall
automatically be postponed until the next day which is not a Saturday, Sunday or
legal holiday.
6.9. Cost and Expenses.
Except for costs and expenses specifically assumed by a party under this
Agreement, each party hereto shall pay its own expenses incident to this
Agreement and the transactions contemplated hereunder. Seller shall pay all
transfer and recording tax and fees associated with the transfer of the Real
Property.
6.10. Seller Indemnity.
To the extent not otherwise provided herein, Seller agrees to defend, indemnify
and hold harmless Purchaser from and against:
6.10.1. All debts, liabilities and obligations arising out of or in any way
relating to the operation of the Business accruing prior to the Closing
Date or from events occurring prior to the Closing with respect to the
ownership, management, operation and maintenance of the Business;
6.10.2. Any actual loss, liability or damage suffered or incurred by
Purchaser because any representation or warranty contained in this
Agreement, or in any document furnished to Purchaser by Seller in
connection with the Closing hereunder, shall be false or misleading in any
material respect; and all reasonable costs and expenses (including
reasonable attorneys' fees) incurred by Purchaser in connection with any
action, suit, proceeding, demand, assessment or judgment incident to any of
the matters indemnified against in this provision.
6.11. Purchaser Indemnity.
To the extent not otherwise provided herein or not inconsistent with any other
provision hereof, Purchaser agrees to defend, indemnify and hold Seller harmless
from and against:
6.11.1. All debts, liabilities and obligations arising out of or in any way
relating to the operation of the Business accruing subsequent to the
Closing or from events occurring subsequent to the Closing with respect to
the ownership, management, operation, maintenance and repair of the
Business;
6.11.2. Any actual loss, liability, or damage suffered or incurred by
Seller because of any representation or warranty contained in this
Agreement, or in any document furnished to Seller by Purchaser in
connection with the Closing hereunder, shall be false or misleading in any
material respect; and
6.11.3. All reasonable costs and expenses (including reasonable attorneys'
fees) incurred by Seller in connection with any suit, proceeding, demand,
assessment or judgment incident to any of the matters indemnified against
in this provision.
6.12. Notice Regarding Indemnities, Limitation of Indemnity, Etc.
Except to the extent expressly provided elsewhere in this Agreement, the
following procedures shall be followed with respect to all claims for
indemnification under this Agreement and all obligations of indemnification
hereunder shall be subject to compliance by the party to be indemnified with
such procedures:
6.12.1. The indemnitee shall give prompt written notice to the indemnitor
of any claim that might give rise to a claim by the indemnitee against the
indemnitor pursuant to this Agreement, stating the nature and basis of such
claims and the estimated amounts thereof.
6.12.2. If any action, suit or proceeding is brought against an indemnitee
with respect to which an indemnitor may have liability pursuant to this
Agreement, the action, suit or proceeding shall, upon
a) The written acknowledgment by the indemnitor that it has the
obligation to indemnify the indemnitee under the indemnity
agreements contained herein and
b) The making of reasonably adequate provisions by the indemnitor to
ensure the indemnitee of the ability of the indemnitor to satisfy
its obligation hereunder, be defended (including all proceedings
on appeal or for review that counsel for the indemnitor shall
deem appropriate) by, and may be settled or compromised by, the
indemnitor. Prior to receipt by the indemnitee of the indemnitee
of the indemnitor's written acknowledgment and provision as
required by clauses (x) and (y) of the preceding sentence, the
indemnitee shall have the right to contest or defend (and, if the
indemnitee has not received such written acknowledgment and
provision within 5 business days after the indemnitee has
provided written notice as required by Section 7.2 above, to
settle or compromise) such action, suit or proceeding at the
expense of the indemnitor. In addition to the foregoing, the
indemnitee may by written notice to the indemnitor require the
indemnitor to assume the defense of any action, suit or
proceeding with respect to which the indemnitor may have
liability pursuant to this Agreement. The indemnitee shall have
the right to employ its own counsel in connection with any
action, suit or proceeding being defended by the indemnitor
pursuant hereto, but the fees and expenses of such counsel shall
be at the indemnitee's own expense unless (i) the employment of
such counsel and the payment of such fees and expenses shall have
been specifically authorized by the indemnitor in connection with
the defense of such action, suit or proceeding or (ii) the
indemnitee shall have reasonably concluded and notified the
indemnitor that there may be specific defenses available to it
that are different from or in addition to those available to the
indemnitor or that such action, suit or proceeding involves or
could have an effect upon matters beyond the scope of the
indemnity agreements contained herein, in either of which events
(A) the indemnitor, to the extent made necessary by such
defenses, shall not have the right to direct the defense of such
action, suit or proceeding on behalf of the indemnitee and (B)
only that portion of such fees and expenses reasonably related to
matters covered by the indemnity agreements contained herein
shall be borne by the indemnitor. The indemnitor shall keep the
indemnitee fully informed of such action, suit or proceeding at
all stages thereof whether or not the indemnitee is so
represented. The indemnitor shall make available to the
indemnitee and its attorneys and accountants all books and
records of the indemnitor relating to such proceedings or
litigation, and the parties hereto agree to render to each other
such assistance as they may reasonably require to ensure the
proper and adequate investigation, and the defense or settlement,
of any such action, suit or proceeding.
c) The indemnitee shall be entitled to compromise or settle all
actions, suits or proceedings as to which the indemnitor does not
have or does not exercise the right to assume the defense,
without consent of the indemnitor, provided, that it acts
reasonably and in good faith in doing so. The indemnitee shall
keep the indemnitor fully informed of such action, suit or
proceeding at all stages thereof.
d) No claim for indemnification shall be made pursuant to Section
7.11 or Section 7.12 unless the amount of such claim exceeds [$
AMOUNT], but each claim paid pursuant to such provisions shall be
the full amount of such claim.
6.13. Survival of Representations.
Each of the representations and warranties made herein shall survive the
Closing, and for a period of 3 years thereafter. Any action to be brought for
breach of any representation or warranty shall be brought only during the period
in which it has survived.
6.14. Counterparts.
To facilitate execution, this Agreement may be executed in as many counterparts
as may be required; and it shall not be necessary that the signature of, or on
behalf of, each party, or that the signatures of all persons required to bind
any party, appear on each counterpart; but it shall be sufficient that the
signature of, or on behalf of, each party, or that the signatures of the persons
required to bind any party, appear on one or more such counterparts. All
counterparts shall collectively constitute a single agreement.
6.15. Exhibits and Schedules.
Each Exhibit and Schedule hereto is incorporated by reference and made a part of
this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
SELLER
New BitSnap N.V.
----------------
By: /s/ Guy De Vreese
PURCHASER:
Remedent N.V.
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By: /s/ Xxxxxxx Xxxx
