EXHIBIT 99
(Translation)
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STOCK PURCHASE AGREEMENT
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This STOCK PURCHASE AGREEMENT, dated as of March 31, 2005, is made and
entered into by and between Forval Corporation ("SELLER") and Xxxxxx Strategic
Investment Partnership ("BUYER").
Buyer desires to purchase all of the outstanding shares of common stock
of PPOL, Inc. (the "COMPANY," and the common stock of the Company as the "COMMON
STOCK") on the terms and conditions hereinafter set forth, and Seller desires to
sell such shares to Buyer on the terms and conditions hereinafter set forth.
The definitions of certain defined terms used herein are set forth in
Article 10.10 hereof.
Accordingly, in consideration of the items and of the respective
covenants and agreements contained herein, the parties hereto agree as follows:
ARTICLE 1
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PURCHASE AND SALE OF SHARES
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1.1 PURCHASE AND SALE. Subject to the terms and conditions set forth in
this Agreement, Seller shall sell to Buyer, and Buyer shall purchase from
Seller, 10,547,594 shares of Common Stock, which constitute all of the
outstanding shares of Common Stock (the "SHARES") (i) for the aggregate purchase
price (the "PURCHASE PRICE") of 900,000,000 Japanese YEN in cash, (ii) at the
Closing referred to in Article 1.2 hereof:
(a) On the Closing Date, Seller shall, upon the fulfillment of
the conditions set forth in Article 7, sell, assign and deliver to Buyer the
Shares, and deliver all the valid share certificate(s) representing such Shares
with all the blanks thereto duly executed, with all necessary share transfer
stamps and other necessary documentary stamps affixed thereto; and
(b) On the Closing Date, Buyer shall, upon the fulfillment of
the conditions set forth in Article 6, accept and purchase the Shares from
Seller, and shall, immediately after the fulfillment of the conditions set forth
in Article 6.4 and 6.5, deliver to Seller by transferring 900,000,000 Japanese
YEN to the accounts designated by Seller as payment for the Purchase Price.
1.2 CLOSING. Subject to the conditions set forth in this Agreement, the
purchase and sale of the Shares pursuant to this Agreement (the "CLOSING") shall
take place at the principal office of Seller located at Xxxxxx Xxxx Xxxxxxxx
00xx Xxxxx, 00-0, XXXXXXXX 5-CHOME, SHIBUYA-KU, TOKYO, at 10:00 AM on (i) Xxxxx
00, 0000 (Xxxxx time), or (ii) such other date as may be agreed by the parties
hereto. The date of the Closing is herein referred to as the "CLOSING DATE".
1.3 DELIVERIES AT THE CLOSING. Subject to the conditions set forth in
this Agreement, at the Closing:
(a) Seller shall deliver to Buyer (i) all the documents
necessary for the transfer of the valid share certificate(s) representing all
the Shares with all necessary share transfer stamps and other necessary
documentary stamps attached thereto as required by Article 1.1 (a) hereof, (ii)
original copies of all the documents in relation to the Company owned by Seller,
and (iii) all the documents required to be delivered by Seller or otherwise
required in connection herewith at or prior to the Closing; and
(b) Buyer shall pay and deliver to Seller all the Purchase
Price by transferring funds to the accounts designated by Seller as required by
Article 1.1 (b) hereof and all opinions, certificates and other instruments and
documents required to be delivered by Buyer or otherwise required in connection
herewith at or prior to the Closing.
ARTICLE 2
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REPRESENTATIONS AND WARRANTIES
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OF SELLER AS TO THE COMPANY
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Seller represents and warrants to Buyer as follows:
2.1 ORGANIZATION AND GOOD STANDING. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
California, USA and has all requisite corporate power and authority to own,
lease and operate its properties and to carry on its business as now being
conducted. The Company is duly qualified to do business and is in good standing
as a foreign corporation in the states and jurisdictions where qualification as
a foreign corporation is required.
2.2 CAPITALIZATION. The Shares have been validly authorized and issued,
are fully paid and have not been issued in violation of any rights of any other
shareholders or of any law and have no pledge or other security interest,
option, claim, encumbrance, limitation or any other security or obligation;
provided, however, this excludes the stock option granted to the directors of
the Company. The issuance of the Shares does not (i) call for the issuance,
sale, pledge or other disposition of any shares of the Company or any securities
convertible into such shares, or any other rights which enable to acquire such
shares, or (ii) obligate the Company to grant, offer or enter into any of the
foregoing or securities or rights.
2.3 AUTHORITY, APPROVALS AND CONSENTS. The execution, delivery and
performance of this Agreement by the Company and the consummation by Buyer and
Seller of the Transactions contemplated hereby do not and will not:
(i) contravene any provisions of the Certificate of
Incorporation or By-Laws of the Company;
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(ii) (after notice or lapse of time or both) conflict with,
result in a breach of any provision of, constitute a default under, result in
the modification or cancellation of, or give rise to any right of termination,
or acceleration in respect of, any commitment, contract, agreement or
understanding to which the Company is bound (the "COMPANY AGREEMENT"), or
require any consent or waiver of any party to any Company Agreement;
(iii) result in the creation of any security interest, pledge,
lien, claim, option (other than the stock option granted to the directors of the
Company) or encumbrance of any nature (the "SECURITY INTEREST") upon, or any
person obtaining any right to acquire any properties, assets or rights of the
Company (other than the rights of Buyer to acquire the Shares pursuant to this
Agreement);
(iv) violate or conflict with any Legal Requirements (as
defined in Article 2.6 hereof) applicable to the Company or any of its
businesses or properties; or
(v) require any authorization, consent, order, permit or
approval of, or notice to, or filing, registration or qualification with, any
governmental, administrative or judicial authority; provided, however, this
excludes registrations and reports required under security laws of the United
States and Japan in relation to this Agreement.
2.4 ABSENCE OF MATERIAL ADVERSE EFFECT. Since December 14, 2004, there
has been no Material Adverse Effect and there is no circumstance of any kind
existing or in prospect which, so far as reasonably can be foreseen at this
time, may result in any Material Adverse Effect including, without limitation,
any Claim (as defined in Article 2.6 hereof) or any damage, destruction or loss
to any asset of the Company (whether or not covered by insurance).
2.5 MATERIAL INFORMATION. All pieces of information provided by Seller
or the Company are in accordance with the account books in all material respects
and accurate, and present fairly the current documents and any other information
thereof. The representations and warranties of such information and those by
Seller or the Company under this Agreement or any other agreements or documents
in relation thereto are true in all material respects and do not have misleading
omissions. Buyer had been disclosed all material information known to the
Company which reasonably affects the decision of a person considering the
purchase of the Shares.
2.6 LEGAL MATTERS.
(a) (i) There is no claim, suit, investigation, inquiry,
review or proceeding (collectively, the "CLAIMS") pending against, or, to the
best knowledge of the Company, threatened against or affecting, the Company, or
any of its properties or rights before or by any court, arbitrator, agency or
other governmental, administrative or judicial authority, and (ii) the Company
is not subject to any judgment, writ, injunction, ruling or order (collectively,
the "JUDGMENTS") of any governmental, administrative or judicial authority.
(b) The business of the Company is being conducted in
compliance with all laws, ordinances, codes, rules, regulations, standards,
Judgments and other requirements of all governmental, administrative or judicial
authorities (collectively, the "LEGAL REQUIREMENTS") applicable to the Company
or any of its businesses or properties in all material respects.
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(c) The Company holds, and is in compliance with, all
licenses, permits, registration, certificates, consents, approvals and
authorizations (collectively, the "PERMITS") required by all applicable Legal
Requirements. The Company owns or holds all Permits necessary to conduct its
business. No event has occurred or is continuing which permits, or after notice
or lapse of time or both would permit, any modification or termination of any
Permit.
ARTICLE 3
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REPRESENTATIONS AND WARRANTIES
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OF SELLER AS TO THEMSELVES
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Seller hereby represents and warrants to Buyer with respect to Seller
as follows:
3.1 OWNERSHIP OF SHARES. Title. Seller is the practical owner of Shares
recorded under the shareholders registry, and the recorded information with
respect to Seller thereto is accurate and complete. Seller has, and shall
transfer to Buyer at the Closing, good and marketable ownership of the Shares,
free and clear of any and all Security Interest, proxies and voting or other
agreements.
3.2 AUTHORITY. Seller has all requisite power and authority and, has
full legal capacity and is competent to execute, deliver and perform this
Agreement and to consummate the transaction contemplated hereby (including the
transfer of Seller's Shares to Buyer). This Agreement has been duly executed and
delivered by Seller and constitutes a valid and binding obligation of Seller,
enforceable against Seller in accordance with its terms (provided, however, the
enforceability may be limited by applicable bankruptcy, reorganization, or
similar laws affecting creditors' rights generally or by the principles
governing the availability of equitable remedies). The execution, delivery and
performance of this Agreement by Seller and the consummation of the transactions
contemplated hereby do not and will not:
(i) (after notice or lapse of time or both) conflict with,
result in a breach of any provision of, constitute a default under, result in
the modification or cancellation of, or give rise to any right of termination,
or acceleration in respect of, any Company Agreement;
(ii) violate or conflict with any Legal Requirements
applicable to Seller or any of its properties; or
(iii) require any authorization, consent, order, permit or
approval of, or notice to, or filing, registration or qualification with, any
governmental, administrative or judicial authority; provided, however, this
excludes registrations and reports required under security laws of the United
States and Japan in relation to this Agreement.
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ARTICLE 4
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REPRESENTATIONS AND WARRANTIES
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OF BUYER
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Buyer hereby represents and warrants to Seller as follows:
4.1 AUTHORITY; APPROVALS AND CONSENTS. Buyer has the power and
authority to enter into this Agreement and to perform its obligations hereunder.
This Agreement has been duly executed and delivered by, and constitutes a valid
and binding obligation of, Buyer, enforceable against Buyer in accordance with
its terms (provided, however, the enforceability may be limited by applicable
bankruptcy, reorganization, or similar laws affecting creditors' rights
generally or by the principles governing the availability of equitable
remedies).
4.2 ACQUISITION OF SHARES FOR INVESTMENT. Buyer is acquiring the Shares
for its own account and with no intention of distributing or reselling all of or
any part of the Shares thereof in any transaction which would be in violation of
the securities laws of Japan; provided, however, Buyer has the right at all
times to sell or otherwise dispose of all or any part of the Shares pursuant to
registration or exemption of the registration available under such laws.
ARTICLE 5
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COVENANTS
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5.1 ACCESS; CONFIDENTIALITY. Buyer shall hold in confidence (unless and
to the extent compelled to disclose by judicial or administrative proceedings,
in the opinion of its counsel, or by other requirements of law) all Confidential
Information (as defined below) and shall not disclose the same to any third
party except in connection with obtaining financing and otherwise as may
reasonably be necessary to carry out this Agreement and the transactions
contemplated hereby, including any due diligence review by or on behalf of
Buyer. In the event this Agreement is terminated, Buyer will promptly return to
the Company, upon the reasonable request of the Company, all Confidential
Information furnished by the Company and held by Buyer, including all copies and
summaries thereof. As used herein, "CONFIDENTIAL INFORMATION" shall mean all
information concerning the Company obtained by Buyer from the Company and Seller
in connection with the transactions contemplated by this Agreement except,
information; (x) ascertainable or obtained from public information; (y) received
from third party not employed by or otherwise affiliated with the Company; or
(z) which is or becomes known to the public.
5.2 FURNISHING INFORMATION; ANNOUNCEMENTS. Seller and Buyer will, as
soon as practicable after reasonable request therefore, furnish to the other all
the information concerning Buyer, Seller or the Company, respectively, required
for inclusion in any statement or application made by Seller, Buyer or the
Company to any governmental or regulatory authority in connection with the
transactions contemplated by this Agreement. Seller shall not, or cause the
Company to, issue any press releases or otherwise make any public statement with
respect to the transaction contemplated hereby, without the prior consent of
Buyer except as may be required by law.
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5.3 CONDUCT OF BUSINESS OF THE COMPANY PRIOR TO THE CLOSING. Seller
agrees and shall cause the Company to agree that, during the period from the
date hereof to the Closing Date,
The Company shall preserve its business organization intact; provided,
however, the Company shall give advance notice of dismissal to its employees on
or before the Closing Date stating the dismissal due on the last day of April,
2005.
5.4 CONSENT; COOPERATION. Subject to the terms and conditions hereof,
Seller and Buyer shall use their respective Best Efforts at their own expense:
(i) to obtain prior to the earlier of either the date required
(if so required) or the Closing Date, all waivers, permits, licenses, approvals,
authorizations, qualifications, orders and consents of all third parties and
governmental authorities, and make all filings and registrations with
governmental authorities which are required on their respective parts for the
consummation of the transactions contemplated by this Agreement;
(ii) to defend, consistent with applicable principles and
requirements of law, any lawsuit or other legal proceedings, whether judicial or
administrative, whether brought derivatively or on behalf of third Persons
(including governmental authorities), of the protests against this Agreement or
the transactions contemplated hereby;
(iii) to furnish each other such information and assistance as
may reasonably be requested in connection with the foregoing; and
(iv) to the extent permitted by law, Seller and Buyer will
supply each other with copies of all correspondence, filings or written
communications by Buyer, Seller or their respective representatives made between
any governmental authority or members of their respective staffs with respect to
this Agreement and the transactions contemplated hereby.
5.5 ADDITIONAL AGREEMENTS. Subject to the terms and conditions of this
Agreement, each of the parties hereto agrees to use its Best Efforts at its own
expense to take, or cause to be taken, all action and to do, or cause to be
done, all things necessary, proper or advisable under applicable laws and
regulations to consummate and make effective the transactions contemplated by
this Agreement.
ARTICLE 6
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CONDITIONS TO THE OBLIGATIONS
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OF BUYER TO EFFECT THE CLOSING
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The obligations of Buyer required to be performed by it at the Closing
shall be subject to the satisfaction, at or prior to the Closing (or, as for the
conditions set forth in Article 6.4 and 6.5, immediately after the execution of
this Agreement, and as for the conditions set forth in Article 6.7, such other
date as may be agreed by Seller and Buyer), of each of the following conditions,
each of which may be waived by Buyer as provided herein except as otherwise
required by applicable law:
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6.1 REPRESENTATIONS AND WARRANTIES; AGREEMENTS. Each of the
representations and warranties of Seller contained in this Agreement shall be
true and accurate in all respects as of the date hereof. At the Closing, Buyer
shall have received a certificate substantially in a form attached as Exhibit
hereto, dated as of the Closing Date and duly executed by the representative
director of Seller, to the effect that the conditions set forth in the preceding
sentences have been satisfied.
6.2 AUTHORIZATION; CONSENTS. All corporate actions necessary to
authorize the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby shall have been duly and
validly taken by the Company and Seller. All notices to, and declarations,
filings and registrations with, and consents, authorizations, approvals and
waivers from, governmental and regulatory authorities required to consummate the
transactions contemplated hereby and all other consents or waivers required
pursuant hereto shall have been made or obtained.
6.3 ABSENCE OF LITIGATION. No order, stay, injunction or decree of any
court of competent jurisdiction in the United States or in Japan shall be in
effect (i) that prevents or delays the consummation of any of the transactions
contemplated hereby, or (ii) would impose any material limitation on the ability
of Buyer to effectively exercise full right of ownership of the Shares. No
action, suit or proceeding before any court or any governmental or regulatory
authority shall be pending (or indicated by any governmental or regulatory
authority), and no investigation by any governmental or regulatory authority has
commenced (or be pending), seeking to restrain or prohibit (or questioning the
validity or legality of) the consummation of the transactions contemplated by
this Agreement, or seeking material damages in connection therewith which Buyer,
in good faith and with the advice of counsel considers it undesirable to proceed
with the consummation of the transactions contemplated hereby.
6.4 RESIGNATION OF THE DIRECTORS AND THE EXECUTIVE OFFICERS OF THE
COMPANY. Seller shall cause the Company to have all the directors and the CFO of
the Company as of the date hereof resign immediately after the execution of this
Agreement. The resignation of the directors shall be done in the order of; (i)
resignation of current 4 directors; (ii) election of 3 new directors; and (iii)
resignation of current 1 director.
6.5 RESIGNATION OF THE DIRECTORS OF AJOL. Seller shall cause AJOL
Corporation (the "AJOL") to have XXXXXXXX XXXXXXX and ERIKO HONDA, the
directors, and XXXXX XXXXXXXX, the Statutory Auditor of AJOL as of the date
hereof, resign immediately after the execution of this Agreement.
6.6 ACCESS. Buyer, Seller and Company shall, in order to, and as far as
necessary to, expedite the process for the consolidated settlement of accounts
regarding the term ending on March 2005, promise as follows: (A) Seller shall
cause the Gate For Inc. (the "GF") to (i) provide, to the officers and other
authorized representatives of the Company, full access, during normal business
hours, to any and all premises, properties, files, books, records, documents,
and other information of GF, and their officers will furnish the Company and its
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and other information pertaining to the businesses and properties of GF, and
(ii) make available for inspection and copying by the Company true and complete
copies of any documents relating to the foregoing, and (B) Buyer shall cause the
Company and AJOL to (i) provide, to the officers and other authorized
representatives of Seller, full access, during normal business hours, to any and
all premises, properties, files, books, records, documents, and other
information of the Company and AJOL, and their officers will furnish Seller and
its authorized representatives any and all financial, technical and operating
data and other information pertaining to the businesses and properties of GF,
and (ii) make available for inspection and copying by Seller true and complete
copies of any documents relating to the foregoing. Seller and Buyer shall
confirm not to disclose such information obtained in accordance with the
foregoing to any third party other than the person defined in this Article and
its officers, directors, representatives and legal counsel.
6.7 CERTIFICATES. Seller shall have furnished Buyer with such
certificates of its officers or others as Buyer may reasonably request to
evidence compliance with the conditions set forth in this Article 6.
ARTICLE 7
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CONDITIONS TO THE OBLIGATIONS OF SELLER
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TO EFFECT THE CLOSING
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The obligations of Seller required to be performed by it at the Closing
shall be subject to the satisfaction, at or prior to the Closing, of each of the
following conditions, each of which may be waived by Seller as provided herein
except as otherwise required by applicable law:
7.1 REPRESENTATIONS AND WARRANTIES; AGREEMENTS. Representations and
warranties of Buyer described in this Agreement shall be true and accurate in
all respects as of the date hereof.
7.2 AUTHORIZATION. All corporate action necessary to authorize the
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby shall have been duly and validly taken by
Buyer.
7.3 ABSENCE OF LITIGATION. No order, investigation, examination, audit,
stay, injunction or decree of any court of competent jurisdiction or any
governmental authorization in the United States of America or in Japan shall be
in effect that prevents or delays the consummations of the transactions
contemplated herein.
7.4 NO SUIT CONFIRMATION. Buyer shall promise not to bring any suit or
other action against Xxxxxx Xxxxxx, XXXXX XXXXXXXXX, Xxxxxx XXXXXXX, XXXXXXXXX
XXXXXX, and XXXXX XXXXXX, the directors of the Company as of the date hereof,
and XXXXXXXX XXXXXXX and ERIKO HONDA, the directors of AJOL as of the date
hereof, regarding operations of the Company or AJOL or in relation to this
Agreement. Seller shall promise that Xxxxxx Xxxxxx, XXXXX XXXXXXXXX, Xxxxxx
XXXXXXX, XXXXXXXXX XXXXXX, and XXXXX XXXXXX, the directors of the Company as of
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the date hereof, and XXXXXXXX XXXXXXX and ERIKO HONDA, the directors of AJOL as
of the date hereof, will not bring any suit or other action against the Company
and its officers and employees prior to the date hereof with regard to
operations of the Company or AJOL or in relation to this Agreement.
7.5 EXTENSION OF THE INSURANCE TERMS OF THE OFFICERS AND OTHERS OF THE
COMPANY. Buyer shall promise to extend the insurance terms of the damage
insurance for suits against the directors, CEO, CFO, and COO of the Company and
directors and officers of the Company's subsidiary for 12 months.
ARTICLE 8
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TERMINATION
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8.1 TERMINATION.
(i) This Agreement may be terminated at any time prior to the
Closing by mutual consent of Buyer and Seller;
(ii) This Agreement may be terminated by Buyer if the Closing
shall not have taken place on or prior to March 31, 2005, or such later date as
shall have been approved by Buyer and Seller; and
(iii) This Agreement may be terminated by a party if the other
party has failed to perform its obligation under this Agreement.
If Buyer or Seller shall terminate this Agreement pursuant to the
provisions hereof, such termination shall be effective by a notice to the other
party specifying the provision hereof pursuant to which such termination it
made.
8.2 EFFECT OF TERMINATION. Except for; (i) any willful breach of this
Agreement; and (ii) the obligations contained in Article 5.1(b) hereof, upon the
termination of this Agreement pursuant to Article 8.1(i) and (ii) hereof, this
Agreement shall forthwith become null and void and no party hereto or none of
their respective officers, directors, employees, agents, or consultants shall
carry any liability or obligation hereunder or with respect hereto.
ARTICLES 9
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SURVIVAL AND INDEMNIFICATION
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9.1 SURVIVAL. All representations, warranties, covenants and agreements
contained in this Agreement, or in any schedule, certificate, document or
statement delivered pursuant hereto, shall survive (and not be affected in any
respect by) any investigation conducted by any party hereto and any information
which any party may receive as of the date hereof or the Closing Date.
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9.2 INDEMNIFICATION. The parties hereto shall indemnify each other as
set forth below:
(a) Seller shall indemnify and hold Buyer and each of its
directors, officers, employees, affiliates and agents harmless from and against
(i) any and all losses, damages, liabilities and claims arising out of, based
upon or resulting from (x) any inaccuracy as of the date hereof or as of the
Closing Date of any representation or warranty of Seller which is contained in
or made pursuant to this Agreement, or (y) any breach by the Company or Seller
of any of their respective obligations contained in or made pursuant to this
Agreement, (ii) any and all fees, costs and expenses of any kind related thereto
(including, without limitation, any and all Legal Expenses (as defined below)),
and (iii) any and all contingent liabilities of the Company arising out of
matters existing as of the date hereof or the Closing Date. As used herein,
"LEGAL EXPENSES" of a Person shall mean, any and all fees, costs and expenses of
any kind reasonably incurred by such Person and its counsel for investigation,
preparation, to defend against or provide evidence, produce documents or take
other actions with respect to, any threatened or asserted claim; provided,
however, Buyer shall indemnify all damages of Seller arising out of the sale of
the Company's share owned by Xxx Global Fund Ltd. to the residents of Japan, and
shall cooperate with and hold Seller harmless if Seller has been sued by a third
party in relation thereto
(b) Buyer shall indemnify and hold harmless of Seller and each
of its directors, officers, employees, affiliates and representatives from and
against (i) any and all losses, damages, liabilities and claims arising out of,
based upon or resulting from (x) any inaccuracy as of the date hereof or as of
the Closing Date of any representation or warranty of Buyer which is contained
in or made pursuant to this Agreement, or (y) any breach by Buyer of any of its
obligations contained in or made pursuant to this Agreement, and (ii) any and
all fees, costs and expenses of any kind related thereto (including, without
limitation, any and all Legal Expenses).
(c) Promptly after receipt of notice by any Person entitled to
indemnification under this Article 9.2 (the "INDEMNIFIED Party") the
commencement of any action in respect of which the Indemnified Party will seek
indemnification hereunder, the Indemnified Party shall notify each Person that
is obligated to provide such indemnification (the "INDEMNIFYING PARTY") thereof
in writing; provided, however, any failure to so notify the Indemnifying Party
shall not relieve it from any liability that it may have to the Indemnified
Party other than those liabilities under this Article 9. The Indemnifying Party
shall be entitled to participate in the defense of such action and, provided
that within 15 days after receipt of such written notice the Indemnifying Party
confirms in writing its responsibility therefore and reasonably demonstrates
that it will be able to pay the full amount of potential liability in connection
with any such claim, to assume control of such defense with counsel which is
reasonably satisfactory to such Indemnified Party; provided, however, that:
(i) the Indemnified Party shall be entitled to participate in
the defense of such claim and to employ counsel at its own expense to assist in
the handling of such claim;
(ii) the Indemnifying Party shall obtain the prior written
approval of the Indemnified Party before entering into any settlement of such
claim or ceasing to defend against such claim, if pursuant to or as a result of
such settlement or cessation, injunctive or other equitable relief would be
imposed against the Indemnified Party; and
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(iii) the Indemnifying Party shall not be entitled to control
(but shall be entitled to participate at its own expense in the defense of), and
the Indemnified Party shall be entitled to have sole control over, the defense
or settlement of (A) any claim to the extent the claim seeks an order,
injunction or other equitable relief against the Indemnified Party which, if
successful, could materially interfere with the business, operations, assets,
condition (financial or otherwise) or otherwise, or prospects of the Indemnified
Party, or (B) any claim relating to taxes.
After written notice by the Indemnifying Party to the Indemnified Party
of its election to assume control of the defense of any such action, the
Indemnifying Party shall not be liable to such Indemnified Party hereunder for
any Legal Expenses subsequently incurred by such Indemnified Party in connection
with the defense thereof other than reasonable costs of investigation and of
liaison counsel for the Indemnifying Party. If the Indemnifying Party does not
assume control of the defense of such claim as provided in this Article 9.2(c),
the Indemnified Party shall have the right to defend such claim in such manner
as it may deem appropriate at the cost and expense of the Indemnifying Party,
and the Indemnifying Party will promptly reimburse the Indemnified Party
therefore in accordance with this Article 9.2. The reimbursement of fees, costs
and expenses required by this Article 9.2 shall be made by periodic payments
during the course of the investigation or defense, as and when bills are
received or expenses incurred.
(d) In the event that the Indemnifying Party shall be
obligated to indemnify the Indemnified Party pursuant to this Article 9, the
Indemnifying Party shall, upon payment of such indemnity in full, be subrogated
to all rights of the Indemnified Party with respect to the claims to which such
indemnification relates.
ARTICLE 10
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MISCELLANEOUS
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10.1 EXPENSES. Each of the parties hereto shall pay its own fees and
expenses (including the fees of any attorneys, accountants, investment bankers
or others engaged by such party) in connection with this Agreement and the
transactions contemplated hereby whether or not the transactions contemplated
hereby are consummated.
10.2 HEADINGS. The section headings herein are for convenience of
reference only, do not constitute part of this Agreement and shall not be deemed
to limit or otherwise affect any of the provisions hereof.
10.3 NOTICES. All notices or other communications required or permitted
hereunder shall be given in writing and shall be deemed duly given or served
when personally delivered against receipt, when sent by facsimile (and
confirmation received), on the next Business Day when sent by nationally
recognized overnight delivery service, or on the fifth Business Day after
deposit with Japan Post for delivery by registered or certified mail, postage
prepaid (return receipt requested), as follows:
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If to Seller:
Aoyama Oval Building 14th Floor
00-0, XXXXXXXX 0-XXXXX, XXXXXXX-XX, XXXXX
Forval Corporation
KEIRI-BU (Accounting Department)
Att.: XXXX XXXX
Telephone Number: (00) 0-0000-0000
Facsimile Number: (00) 0-0000-0000
If to Buyer:
0 Xxxxxxx Xxxxx #00-00, Xxxxxxxx Xxxxx
Xxxxxxxxx 000000
c/o ING Asia Private Bank Limited
Xxxxxx Strategic Investment Partnership
Att.: XXXXXXXXX XXXXXXX
Telephone Number: (00) 0000-0000
Facsimile Number: (00) 0000-0000
or such other address as shall be furnished in writing by such party. Any notice
or communication changing any of the addresses set forth above shall be
effective and deemed given only upon its receipt.
10.4 ASSIGNMENT. This Agreement and all of the provisions hereof shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted transferees, and the provisions of Article 9
hereof shall inure to the benefit of the Indemnified Party referred to therein;
provided, however, no party hereof shall transfer any rights, interests, or
obligations hereof or hereunder without the prior written consent of the other
party; provided, further, that Buyer may transfer its interests hereunder to any
of its affiliates by first notifying Seller, without obtaining prior written
consent of Seller.
10.5 ENTIRE AGREEMENT. This Agreement (including the exhibit hereto)
embodies the entire agreement and understanding of the parties with respect to
the transactions contemplated hereby and supersedes all prior written or oral
commitments, arrangements or understandings with respect thereto. There are no
restrictions, agreements, promises, warranties, covenants or undertakings with
respect to the transactions contemplated hereby other than those expressly set
forth herein.
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10.6 MODIFICATIONS, AMENDMENT IN WAIVER. At anytime prior to the
Closing, to the extent permitted by law, (i) Buyer and Seller may, by written
agreement, modify, amend or supplement any term or provision of this Agreement,
and (ii) any term or provision of this Agreement may be waived in writing by the
party which is entitled to the benefits thereof.
10.7 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
be one and the same agreement.
10.8 GOVERNING LAW. This Agreement shall be governed by the laws of
Japan (regardless of the laws that might be applicable under principles of
conflicts of law) as to all matters, including but not limited to matters of
validity, interpretation, effect and performance.
10.9 ACCOUNTING TERMS. All accounting terms used herein which are not
expressly defined in this Agreement shall have the respective meanings given to
them in accordance with generally accepted accounting principles as of the date
hereof.
10.10 CERTAIN DEFINITIONS. For purpose of this Agreement:
(a) "BUSINESS DAY" shall mean any day that is not a Saturday,
Sunday or a holiday pursuant to Article 3 of KOKUMIN NO SHUKUJITSU NI KANSURU
HORITSU (National Holiday Act, Law No. 178 of 1948) or other days on which
commercial transaction are customarily not taken place.
(b) "BEST EFFORTS" shall be deemed not to include any
obligation on the part of any Person to undertake any liabilities or perform any
acts (except liabilities or performance, other than any best efforts
obligations, expressly required to be undertaken by the terms of this Agreement)
which are materially burdensome to such Person; provided, however, that
notwithstanding the foregoing, the term "Best Efforts" shall include an
obligation to take such actions which are normally incident to or reasonably
foreseeable in connection with such obligation or the transactions contemplated
hereby;
(c) "MATERIAL ADVERSE EFFECT" shall mean any change in, or
effect on, the Company (including the business thereof) which is, or with
reasonable probability might be, materially adverse to the business, operations,
assets, condition (financial or otherwise) or prospects of the Company; and
(d) "PERSON" shall mean, and include an individual,
corporation, partnership, joint venture, association, trust, any other
unincorporated organization or entity and a governmental entity or any
department or agency thereto.
10.11 SEVERABILITY. If any one or more of the provisions of this
Agreement shall be held to be invalid, illegal or unenforceable, the validity,
legality or enforceability of the remaining provisions of this Agreement shall
not be affected thereby. To the extent permitted by applicable law, each party
waives any provision of law which renders any provision of this Agreement
invalid, illegal or unenforceable in any respect.
10.12 CONSENT TO JURISDICTION. The parties hereof agree that the Tokyo
District Court has first instance jurisdiction in the event that a dispute
arises in connection with the Agreement.
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10.13 SINCERE DISCUSSION. Buyer and Seller shall discuss sincerely and
solve in peaceful manner if any dispute arises out of any matter not stated
hereunder or interpretation or performance of any provision hereunder.
[Remainder of Page Intentionally Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
[SELLER]
Aoyama Oval Building 14th Floor
00-0, XXXXXXXX 0-XXXXX, XXXXXXX-XX, XXXXX
Forval Corporation
Representative Director and President XXXXX XXXXX
[BUYER]
0 Xxxxxxx Xxxxx #00-00, Xxxxxxxx Xxxxx
Xxxxxxxxx 000000
c/o ING Asia Private Bank Limited
Xxxxxx Strategic Investment Partnership
Representative XXXXXXX XXXXXX
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(Translation)
-------------
(EXHIBIT)
March 31, 2005
To: Xxxxxx Strategic Investment Partnership
Forval Corporation
Representative Director and President XXXXX XXXXX
CERTIFICATE
-----------
Forval Corporation ("SELLER") hereby certifies the following as of the date
hereof to Xxxxxx Strategic Investment Partnership ("BUYER") in accordance with
Article 6.1 of the Stock Purchase Agreement (the "AGREEMENT") dated as of March
28, 2005 by and between Seller and Buyer.
The representation and warranties by Seller set forth in Article 2 and
3 of the Agreement shall be true and accurate in all respects as of the
execution date of the Agreement.
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