Exhibit 3.1
STOCK PURCHASE AGREEMENT
dated as of May 27, 2003 by and between Visual Frontier, Inc., formerly
Air Test Technology, Inc., a Delaware corporation (for
convenience, "Air Test") and Visual Frontier (BVI) Ltd.., a
British Virgin Islands corporation ("Visual")
WHEREAS the respective Boards of Directors of Air Test and Visual
have approved and declared advisable this Agreement and the purchase by Air Test
of all the issued and outstanding shares of Visual upon the terms and subject to
the conditions set forth in this Agreement, whereby each issued and outstanding
share of the common stock, par value $.0001, of Visual will be purchased for one
(1) share of common stock, par value $.0001, of Air Test and the 4,001,000
shares of common stock of Air Test held by "affiliates" (as that term is defined
in Rule 405 of the Securities Act of 1933) of Air Test will be cancelled;
WHEREAS the respective Boards of Directors of Air Test and Visual
have each determined that stock purchase and other transactions contemplated
hereby are consistent with, and in furtherance of, their respective business
strategies and goals; and
WHEREAS Air Test and Visual desire to make certain representations,
warranties, covenants and agreements in connection with the purchase and also to
prescribe various conditions thereto;
NOW, THREFORE, in consideration of the representations, warranties,
covenants and agreements contained in this Agreement, the parties agree as
follows:
ARTICLE I
THE PURCHASE
Section 1.01. The Purchase. Upon the terms and subject to the
conditions set forth in this Agreement, and in accordance with the Delaware
General Corporation Law (the "DGCL"), after the purchase, Visual shall be a
wholly-owned subsidiary of Air Test at the closing. (For convenience of
reference, unless the context otherwise requires, the surviving corporation
sometimes shall be referred to herein as Air Test, the old name, rather than
Visual, the new name.)
Section 1.02. Closing. The closing will take place at 10 o'clock AM,
local time, on May 27, 2003, at the offices of Visual at 0X, Xx. 00 Xxx Xxxxxx
Xxxx, Xxxx-Xxxx Xxxx, Xxxxxx Xxxxx, Xxxxxx, R.O.C., or such other date, time and
place as the parties in writing may agree.
Section 1.03. Effective Time. As soon as practicable after closing,
an amendment to Air Test's certificate of incorporation shall be made to change
the name of the corporation to "Visual Frontier (BVI) Ltd." in accordance with
the DGCL and all other filings required under the DGCL or other applicable law
shall be made.
Section 1.04. Directors and Officers. The members of the Board of
Directors and the officers of Visual immediately prior to the effective time
specified in Section 1.03 shall be the directors and officers of Air Test, until
their successors are elected or appointed. At closing, all of
the directors and officers of Air Test immediately before the closing shall
resign and all of the directors and officers of Visual shall be elected or
appointed directors and officers of Air Test at and after the closing.
ARTICLE II
EFFECT OF THE PURCHASE ON THE CAPITAL STOCK
OF THE CONSTITUENT CORPORATIONS
As of the effective time of the purchase specified in Section 1.03,
by virtue thereof and without any action on the part of the holder of any shares
of common stock of Visual, each issued and outstanding share of Visual common
stock immediately before the effective time specified in Section 1.03 shall be
converted automatically into one (1) fully paid and nonassessable shares of Air
Test common stock; and each of the 4,001,000 issued and outstanding shares of
Air Test common stock held by affiliates of Air Test shall be cancelled
automatically. As of the effective time, all shares of Visual common stock shall
be held by Air Test and Visual shall be a wholly-owned subsidiary of Air Test.
The certificates of Air Test common stock to be issued pursuant to
this Agreement upon conversion of the shares of Visual common stock shall be
"restricted securities," as that term is defined in Rule 144 of the Securities
Act of 1933, in accordance with Rule 905 of Regulation S of the Securities Act
of 1933, and shall bear customary restrictive transfer legends and be subject to
stop transfer instructions to the transfer agent to reflect their issuance
without registration under the Securities Act of 1933 in reliance upon the
exemption(s) from registration afforded by Regulation D and/or Regulation S
thereof.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF AIR TEST
Except as disclosed in reports ("SEC Reports") filed by Air Test with
the Securities and Exchange Commission ("SEC") or otherwise disclosed to Visual,
Air Test represents and warrants to Visual as follows:
(a) ORGANIZATION, STANDING AND CORPORATE POWER. Air Test is a
corporation duly organized, validly existing and in good standing under the laws
of Delaware and has the requisite corporate power and authority to carry on its
business as now being conducted. Air Test is duly qualified or licensed to do
business and is in good standing in each jurisdiction in which the nature of its
business or the ownership or leasing of its properties makes such qualification
or licensing necessary, other than in such jurisdictions where the failure to be
so qualified or licensed is not reasonably likely to have a material adverse
effect on Air Test. Air Test has made available to Visual complete and correct
copies of its certificate of incorporation and bylaws (or instruments
corresponding thereto) as in effect immediately prior to the effective time
specified in Section 1.03.
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(b) CAPITAL STRUCTURE. The authorized capital stock of Air Test
consists of 50,000,000 shares of common stock and 20,000,000 shares of preferred
stock. Immediately prior to the effective time specified in Section 1.03. there
were 8,400,000 shares of common stock and zero shares of preferred stock issued
and outstanding; any options, warrants or other rights to purchase shares of
common or preferred stock were cancelled. All outstanding shares of capital
stock are duly authorized, validly issued, fully paid and nonassessable and are
not subject to preemptive or similar rights. Air Test shall deliver to Visual at
closing a complete and accurate shareholders' list, certified as true and
correct by the transfer agent for Air Test.
(c) AUTHORITY; NONCONTRAVENTION. Air Test has all requisite corporate
power and authority to enter into this Agreement and to consummate the
transactions contemplated by this Agreement. The execution and delivery of this
Agreement and the consummation of the transactions contemplated by this
Agreement have been duly authorized by all necessary corporate action on the
part of Air Test. This Agreement has been duly executed and delivered by Air
Test and, assuming the due execution and delivery by Visual, constitutes a valid
and binding obligation of Air Test as to Air Test's obligations therein,
enforceable against Air Test in accordance with its terms. The execution and
delivery of this Agreement do not, and the consummation of the transactions
contemplated by this Agreement, and the compliance with the provisions of this
Agreement by Air Test will not, conflict with or result in any violation of or
default (with or without notice or lapse of time or both), or give rise to a
right of termination, cancellation or acceleration of any obligation or to loss
of a material benefit under, or result in the creation of any lien upon any of
the properties of Air Test under (1) the certificate of incorporation of Air
Test, (2) any loan, credit agreement, note, bond, mortgage, indenture, lease or
other agreement, instrument, permit or license applicable to Air Test or its
properties or assets, or (3) except for any required filings with Delaware or
the British Virgin Islands, any judgment, order, decree, stature, law,
ordinance, rule or regulation applicable to Air Test or its properties or
assets. No consent, approval, order or authorization of, or registration,
declaration or filing with, any federal, state or local government or any court,
authority or agency is required by Air Test in connection with the execution and
delivery of this Agreement or the consummation of any of the transactions
contemplated by this Agreement, except for any required filings with the SEC,
Delaware or the British Virgin Islands.
(d) SEC FILINGS; UNDISCLOSED LIABILITIES. (1) Air Test has filed all
required reports, schedules, forms, statements and other documents with the SEC
since January 1, 2001, except for the Form 10-QSB for the quarterly period ended
March 31, 2003. As of their respective dates, all such SEC filings complied in
all material respects with the requirements of the Securities Act of 1933 or the
Securities Exchange Act of 1934, as the case may be, and the forms, rules and
regulations of the SEC promulgated thereunder applicable to such SEC filings.
None of such SEC filings contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. The financial information of Air Test included
in such SEC filings complies as to form in all material respects with applicable
accounting requirements and the rules and regulations of the SEC with respect
thereto, have been prepared in accordance with United States generally accepted
accounting principles (except as
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permitted by the SEC) applied on a consistent basis during the periods involved
and fairly present the financial position of Air Test and the results of its
operations for the periods involved. Except for liabilities or obligations
incurred in the ordinary course of business consistent with past practice, since
the later of January 1, 2001 or the date of the last audited financial
information in an SEC filing, Air Test has incurred no liabilities or
obligations of any nature (whether accrued, absolute, contingent or otherwise)
required by United States generally accepted accounting principles to be
recognized or disclosed on Air Test's balance sheet or in the notes thereto. As
of the effective time, Air Test's liabilities shall be zero (-0-).
(e) INFORMATION SUPPLIED. No statement, certificate, instrument,
document or other writing furnished or to be furnished by Air Test to Visual
pursuant to this Agreement contains or will contain any untrue statement of
material fact or will omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The information supplied or to be supplied by Air Test for
inclusion in any filing to be made with the SEC or Delaware will not contain any
untrue statement of material fact or will omit to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they are made, not misleading.
(f) ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as disclosed in
writing to Visual before the closing or the effective date, as the case may be,
since the date of the most recent audited financial information included in an
SEC filing of Air Test, Air Test has conducted its business only in the ordinary
course and there has not been since that date any material adverse change in the
business or financial position or condition of Air Test.
(g) LITIGATION. There is no suit, action or proceeding pending or, to
the knowledge of Air Test, threatened against or affecting Air Test that is
reasonably likely to have a material adverse affect on Air Test, nor is there
any judgment, decree, injunction, rule or order of any governmental entity
outstanding against Air Test that is reasonably likely to have a material
adverse effect.
(h) COMPLIANCE WITH APPLICABLE LAW. Air Test has in effect all
federal, state and local governmental approvals, authorizations, certificates,
filings, franchises, licenses, notices, permits and rights necessary for it to
own, lease or operate its assets and to carry on it business as now conducted.
To the knowledge of Air Test, Air Test is in compliance with all applicable
statutes, laws, ordinances, rules, orders and regulation of any governmental
entity. No investigation, examination or review by any governmental entity is
pending or, to the knowledge of Air Test, threatened.
(i) HAZARDOUS MATERIAL. During the period of ownership or operation
by Air Test of any of its current properties, there has been no release of
hazardous material in, on or under or affecting such properties. Prior to the
period of ownership or operation by Air Test of any of its current properties,
to the knowledge of Air Test, there were no such releases of hazardous material.
The term "hazardous material" shall mean any waste or substance regulated under
any environmental law and any hazardous substances within the meaning of the
Comprehensive Environmental Response, Compensation and Liability Act or any
similar federal, state or local law.
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(j) STATE TAKEOVER AND CONTROL SHAREHOLDER STATUTES. To the knowledge
of Air Test, no state takeover stature, including Section 203 of the DGCL, and
no anti-takeover provision of the governing instruments of Air Test, is
applicable to this Agreement and the other transactions contemplated by this
Agreement.
(k) BROKERS. No broker, investment banker, financial adviser or other
person is entitled to any broker's, finder's, financial adviser's or other
similar fee or commission payable by Visual in connection with Air Test's
execution and delivery of this Agreement or consummation of the transactions
contemplated thereby.
(l) INTELLECTUAL PROPERTY. Except as is not reasonably likely to have
a material adverse effect on Air Test, Air Test does not have knowledge of any
valid grounds for any bona fide claims (1) to the effect that the manufacture,
sale, licensing or use of any product as now used, sold or license or proposed
for use, sale or license by Air Test infringes on any copyright, patent,
trademark, trade secret or service xxxx, (2) against the use by Air Test of any
copyright, patent, trademark, trade name, trade secret, service xxxx,
technology, know-how or computer software program and application used in the
business of Air Test as currently conducted or proposed to be conducted, (3)
challenging the ownership, validity or effectiveness of any of the Air Test
intellectual property rights or other Air Test trade secret material, or (4)
challenging the license or legally enforceable right to use of third-party
intellectual property rights by Air Test.
As used herein, the term (x) "Intellectual Property" means all
patents, trademarks, trade names, service marks copyrights and any applications
therefore, technology, know-how, computer software programs or applications, and
tangible or intangible proprietary information or materials, trademarks, trade
names, service marks and copyrights, (y) "Third-Party Intellectual Property
Rights" means Intellectual Property owned by any third party, and (z) "Air Test
Intellectual Property Rights" means the Intellectual Property owned by Air Test.
(m) Air Test has filed all tax returns and reports required to be
filed by it or requests for extensions to file such returns or report have been
timely filed, granted and have not expired. All tax returns and reports filed by
Air Test are complete and accurate in all material respects, to the knowledge of
Air Test. Air Test has paid all taxes shown as due on such returns and Air Test
has made adequate reserve for all taxes payable by Air Test for all taxable
periods through the current date. No deficiencies for any taxes have been
proposed, asserted or assessed against Air Test and no requests for waivers of
the time to assess any such taxes have been granted or are pending.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF VISUAL
Except as disclosed in writing to Air Test, Visual represents and
warrants to Air Test as follows:
(a) ORGANIZATION, STANDING AND CORPORATE POWER. Visual is a
corporation duly organized, validly existing and in good standing under the laws
of the British Virgin Islands and has the
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requisite corporate power and authority to carry on its business as now being
conducted. Visual is duly qualified or licensed to do business and is in good
standing in each jurisdiction in which the nature of its business or the
ownership or leasing of its properties makes such qualification or licensing
necessary, other than in such jurisdictions where the failure to be so qualified
or licensed is not reasonably likely to have a material adverse effect on
Visual. Visual has made available to Air Test complete and correct copies of its
certificate of incorporation and bylaws (or instruments corresponding thereto)
as in effect immediately prior to the effective time specified in Section 1.03.
(b) CAPITAL STRUCTURE. The authorized capital stock of Visual
consists of 50,000,000 shares of common stock and 20,000,000 shares of preferred
stock. Immediately prior to the effective time specified in Section 1.03. there
were 36,000,000 shares of common stock and zero shares of preferred stock issued
and outstanding; no options, warrants or other rights to purchase shares of
common or preferred stock were outstanding. All outstanding shares of capital
stock are duly authorized, validly issued, fully paid and nonassessable and are
not subject to preemptive or similar rights.
(c) AUTHORITY; NONCONTRAVENTION. Visual has all requisite corporate
power and authority to enter into this Agreement and to consummate the
transaction contemplated by this Agreement. The execution and delivery of this
Agreement and the consummation of the transactions contemplated by this
Agreement have been duly authorized by all necessary corporate action on the
part of Visual. This Agreement has been duly executed and delivered by Visual
and, assuming the due execution and delivery by Air Test, constitutes a valid
and binding obligation of Visual as to Visual's obligations therein, enforceable
against Visual in accordance with its terms. The execution and delivery of this
Agreement do not, and the consummation of the transactions contemplated by this
Agreement, and the compliance with the provisions of this Agreement by Visual
will not conflict with, or result in any violation of or default (with or
without notice or lapse of time or both), or give rise to a right of
termination, cancellation or acceleration of any obligation or to loss of a
material benefit under, or result in the creation of any lien upon any of the
properties of Visual under (1) the certificate of incorporation of Visual, (2)
any loan, credit agreement, note, bond, mortgage, indenture, lease or other
agreement, instrument, permit or license applicable to Visual or its properties
or assets, or (3) except for filings with Delaware or the British Virgin
Islands, any judgment, order, decree, stature, law, ordinance, rule or
regulation applicable to Visual or its properties or assets. No consent,
approval, order or authorization of, or registration, declaration or filing
with, any federal, state or local government or any court, authority or agency
is required by Visual in connection with the execution and delivery of this
Agreement or the consummation of any of the transactions contemplated by this
Agreement, except for any required filings with the SEC, Delaware or the British
Virgin Islands.
(d) UNDISCLOSED LIABILITIES. (1) None of financial information
furnished to Air Test by Visual contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. Such financial information has been
prepared in accordance with United States generally accepted accounting
principles or, as permitted by the SEC. reconciled thereto, applied on a
consistent basis during the periods involved
and fairly present the financial position of Visual and the results of its
operations for the periods involved.
(e) INFORMATION SUPPLIED. No statement, certificate, instrument,
document or other writing furnished or to be furnished by Visual to Air Test
pursuant to this Agreement contains or will contain any untrue statement of
material fact or will omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The information supplied or to be supplied by Visual for
inclusion in any required filing to be made with the SEC, Delaware or the
British Virgin Islands will not contain any untrue statement of material fact or
will omit to state a material fact necessary to make the statements therein, in
light of the circumstances under which they are made, not misleading.
(f) ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as to disclosed in
writing to Air Test before the closing or the effective date, as the case may
be, since the date of the most recent audited financial information furnished to
Air Test, Visual has conducted its business only in the ordinary course and
there has not been since that date any material adverse change in the business
or financial position or condition of Visual.
(g) LITIGATION. There is no suit, action or proceeding pending or, to
the knowledge of Visual, threatened against or affecting Visual that is
reasonably likely to have a material adverse affect on Visual, nor is there any
judgment, decree, injunction, rule or order of any governmental entity
outstanding against Visual that is reasonably likely to have a material adverse
effect.
(h) COMPLIANCE WITH APPLICABLE LAW. Visual has in effect all federal,
state and local governmental approvals, authorizations, certificates, filings,
franchises, licenses, notices, permits and rights necessary for it to own, lease
or operate its assets and to carry on it business as now conducted. To the
knowledge of Visual, Visual is in compliance with all applicable statutes, laws,
ordinances, rules, orders and regulation of any governmental entity. No
investigation, examination or review by any governmental entity is pending or,
to the knowledge of Visual, threatened.
(j) STATE TAKEOVER AND CONTROL SHAREHOLDER STATUTES. To the knowledge
of Visual, no state takeover stature and no anti-takeover provision of the
governing instruments of Visual, is applicable to this Agreement and the other
transactions contemplated by this Agreement.
(k) BROKERS. No broker, investment banker, financial adviser or other
person is entitled to any broker's, finder's, financial adviser's or other
similar fee or commission payable by Air Test in connection with Visual's
execution and delivery of this Agreement or consummation of the transactions
contemplated thereby.
(l) INTELLECTUAL PROPERTY. Except as is not reasonably likely to have
a material adverse effect on Visual, Visual does not have knowledge of any valid
grounds for any bona fide claims (1) to the effect that the manufacture, sale,
licensing or use of any product as now used, sold or license or proposed for
use, sale or license by Visual infringes on any copyright, patent, trademark,
trade secret or service xxxx, (2) against the use by Visual of any copyright,
patent, trademark, trade name, trade secret, service xxxx, technology, know-how
or computer software program and application used in the business of Air Test as
currently conducted or proposed to be conducted, (3) challenging the ownership,
validity or effectiveness of any of the Visual intellectual property
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rights or other Visual trade secret material, or (4) challenging the license or
legally enforceable right to use of third-party intellectual property rights by
Visual.
As used herein, the term (x) "Intellectual Property" means all
patents, trademarks, trade names, service marks copyrights and any applications
therefore, technology, know-how, computer software programs or applications, and
tangible or intangible proprietary information or materials, trademarks, trade
names, service marks and copyrights, (y) "Third-Party Intellectual Property
Rights" means Intellectual Property owned by any third party, and (z) "Visual
Intellectual Property Rights" means the Intellectual Property owned by Visual.
ARTICLE V
COVENANTS RELATING TO CONDUCT OF BUSINESS
CONDUCT OF BUSINESS. During the period from the date of this
Agreement and the effective time specified in Section 1.03, each of Air Test and
Visual shall carry on their respective businesses in the usual, regular and
ordinary course in substantially the same manner as heretofore conducted.
Without limiting the generality of the foregoing, during the period from the
date of this Agreement to the effective time, neither Air Test nor Visual shall:
(a) declare, set aside or pay any dividends payable in cash, stock or
property on, or make any other distributions in respect of, any of its capital
stock;
(b) issue, deliver, sell, pledge or otherwise encumber any shares of its
capital stock, or issue any shares of common stock upon exercise of any options,
warrants or other convertible securities;
(c) amend its certificate of incorporation or bylaws;
(d) acquire by merger, consolidation or purchase any assets or business of
another entity;
(e) sell, lease, license, mortgage or otherwise encumber or subject to any
lien or otherwise dispose of any of its properties or assets, except in the
ordinary course of business consistent with past practice;
(f) incur any indebtedness for borrowed money or guarantee any such
indebtedness of another person, issue or sell any debt securities or guarantee
any debt securities of another person, except in the ordinary course of business
consistent with past practice'
(g) make or agree to make any new capital expenditure or enter into any
agreement providing for payments in excess of $5,000;
(h) make any tax election that is reasonably likely to have material
adverse effect on Visual as the surviving corporation, or settle or compromise
any material income tax liability;
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(i) pay, discharge, settle or satisfy any claims, obligations or litigation
other than the payment, discharge, settlement or satisfaction, in the ordinary
course of business and consistent with past practice, of liabilities previously
disclosed to the other party;
(k) authorize, adopt or approve of any employee benefit plan or any
executive compensation plan; or
(l) authorize or permit any director, officer, employee or agent to
solicit, initiate or encourage or take any other action designed to facilitate
any inquiries or the making of any proposal that would interfere with the
closing of this Agreement or the consummation of any of the transactions
contemplated thereby.
Nothing contained in this Article V shall prohibit Air Test from
taking and disclosing to its shareholders the terms and conditions of this
Agreement, by press release or other public announcement, by SEC filing or by
notice pursuant to Rule 14f-1 of the Securities Exchange Act of 1934 (with
information furnished by Visual with respect to the new directors), if, in the
good faith judgment of the Board of Directors of Air Test and in the opinion of
its outside counsel, failure so make such disclosure would be inconsistent with
its obligations under applicable law.
ARTICLE VI
ADDITIONAL AGREEMENTS
Section 6.01. SEC AND OTHER FILINGS. As soon as practicable following
the date of this Agreement and no later than the time periods specified in the
applicable SEC forms, Air Test and Visual shall prepare or cause to be prepared
(1) a current report on Form 8-K to disclose the terms and conditions of this
Agreement and the transactions contemplated thereby, including the financial
information called for; and (2) a notice to Air Test shareholders pursuant to
Rule 14f-1 of the change in the board of directors by virtue of the Agreement.
Section 6.02. FEES AND EXPENSES. Unless otherwise agreed by the
parties, all fees and expenses incurred in connection with this Agreement, the
merger and the transactions contemplated by this Agreement shall be paid by the
party incurring such fees or expenses. except Air Test shall pay any accrued and
unpaid liabilities of Air Test existing at the time of closing, including any
accrued and unpaid tax liabilities.
Section 6.03. PUBLIC ANNOUNCEMENTS. Air Test and Visual shall consult
with each other before issuing any press release or other public announcement
with respect to this Agreement, the merger and the transactions contemplated by
this Agreement. Such consultation shall consist of providing the other party the
opportunity to review, comment and concur with the press release or other public
announcement. Neither party shall issue any press release or make any public
announcement prior to such consultation, except as either party may reasonably
determine is required by applicable law. The parties agree that the initial
press release or other public announcement shall be in form and substance as
both of them agree.
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ARTICLE VII
CONDITIONS PRECEDENT
The respective obligation of each party to effect the merger is
subject to the satisfaction or waiver on or prior to closing of the following
conditions:
Section 7.01. NO INJUNCTION OR RESTRAINTS. No judgment, order,
decree, statute, law, ordinance, rule or regulation entered, enacted,
promulgated, enforced or issued by any court or other governmental entity of
competent jurisdiction or other legal restraint or prohibition shall be in
effect (a) preventing the consummation of this Agreement or the transactions
contemplated by this Agreement, or (b) which otherwise is reasonably likely to
have a material adverse effect on the combined businesses (assuming the merger
is closed an consummated as contemplated).
Section 7.02. REPRESENTATIONS AND WARRANTIES. The representations of
Air Test set forth in Article III, the representations of Visual set forth in
Article IV, the covenants set forth in Article V and the additional agreements
set forth in article VI are true, correct and valid when made and at and as of
the closing.
Section 7.03. PERFORMANCE OF OBLIGATIONS. The parties have performed
in all material respects all of the obligations required to be performed by it
under this Agreement at or prior to the closing.
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
Section 8.01. TERMINATION. This Agreement may be terminated at any
time prior to the effective time:
(a) by mutual written consent of the parties; or
(b) by either party if the Agreement shall not have been consummated by
June 1, 2003, provided that the right to terminate shall not be
available to any party whose failure to perform any of its obligation
under this Agreement results in the failure of the Agreement to be
consummated by such date.
Section 8.02. Effect of Termination. In the event of termination as
provided in Section 8.01, this Agreement shall forthwith become void and have no
effect, without any liability or obligation on the part of either party, except
that termination of this Agreement will not relieve a breaching party from
liability for any willful and material breach by such party of any of its
representations, warranties, covenants or agreement set forth herein giving rise
to such termination.
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ARTICLE IX
GENERAL PROVISIONS
Section 9.01. Nonsurvival of Representations and Warranties. None of
the representations and warranties set forth in this Agreement shall survive the
effective time, except that this Section 9.01 shall not limit any covenant or
agreement which by its terms contemplates performance after the effective time.
Section 9.02. Notices. All notices, requests, claims, demands and
other communications under this Agreement shall be in writing and shall be
deemed given if delivered personally, telecopied (which is confirmed) or sent by
overnight courier (providing proof of delivery) to the parties at the following
addresses, or at such other address for a party as shall be specified by like
notice:
(a) if to Air Test, to
Air Test Technology, Inc.
0000 Xxxxxx Xxxx, Xxxx 000
Xxx Xxxxx, XX 00000
Telecopier No.:
-----------------
With a copy (that shall not constitute notice) to:
--------------------------------------------------
--------------------------------------------------
--------------------------------------------------
TelecOPIER NO.:
-----------------------------------
(b) if to Visual, to
Visual Frontier (BVI) Ltd.
0X, 00 Xxx Xxxxx Xxxx
Xxxx-Xxxx Xxxx
Xxxxxx Xxxxx
Xxxxxx
Telecopier No.: 000-0-00000000
Section 9.03. Interpretation. The headings of this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. The singular and plural forms of terms in this
Agreement and the masculine, feminine and neuter gender forms of terms include
the other forms of terms.
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Section 9.04. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other party.
Section 9.05 ENTIRE AGREEMENT; No Third Party Beneficiaries. This
Agreement constitutes the entire agreement and supersedes all prior agreements
and understandings, both written and oral, between the parties with respect to
the subject matter of this Agreement and cannot be changed or amended except in
writing signed by both parties. This Agreement is not intended to confer any
rights or remedies upon any person other than the parties hereto.
Section 9.06. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of Delaware without regard to the laws
that might otherwise govern under applicable principles of conflicts of law
thereof.
Section 9.07. ASSIGNMENT. Neither this Agreement nor any of the
rights, interests or obligations under this Agreement shall be assigned, in
whole or in part, by operation of law or otherwise by either of the parties
hereto without the prior written consent of the other party. Any assignment in
violation of the preceding sentence shall be void. Subject to the two preceding
sentences, this Agreement shall be binding upon, inure to the benefit of and be
enforceable by the parties and their respective successors and assigns.
Section 9.08. SEVERABILITY. If any term or other provision of this
Agreement is determined invalid, illegal or incapable of being enforced by any
rule of law of public policy, unless the effects of such invalidity, illegality
or unenforceability would prevent the parties from realizing the major portion
of the economic benefits of the Agreement, all other conditions and provisions
of this Agreement shall nevertheless remain in full force and effect. Moreover,
upon any such determination, the parties hereto shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the parties as
closely as possible to the fullest extent permitted by applicable law in an
acceptable manner and to the end that the transactions contemplated hereby are
fulfilled to the extent possible.
12
IN WITNESS WHEREOF, Air Test and Visual have caused this Agreement to
be signed by their respective officer thereunto duly authorized, all as of the
date first written above.
AIR TEST TECHNOLGY INC.
By
---------------------------
Name:
Title:
VISUAL FRONTIER (BVI) LTD.
By
---------------------------
Name:
Title:
13
