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SHARE SWAP AGREEMENT
This Share Swap Agreement ("Agreement") is made as of October 21, 1997, by and
between SVI HOLDINGS, INC., a Nevada corporation or its designee ("SVIH"), and
SOFTLINE LIMITED, a South African Company ("Softline").
1. Recital.
This Agreement is made with reference to the following recital of
essential facts:
1.1. SVIH desires to exchange 7,536,000 Shares in its capital stock (the
"SVIH
Shares") for 28,755,448 Shares in the capital stock of Softline (the "Softline
Shares") plus the Technology Assets (as defined below).
1.2. Softline desires to exchange the Softline Shares plus the Technology
Assets for the SVIH Shares.
1.3. The parties intending to be legally bound, agree as set forth below:
2. Definitions.
For purposes of this Agreement, the following definitions shall apply:
2.1. "Closing" has the meaning defined in Section 3.2.
2.2. "Closing Date" means a date to be agreed between the parties to this
Agreement, but in no event later than November 17, 1997.
2.3. "Contemplated Transactions" means all of the transactions contemplated
by
this Agreement, including:
(a) Transfer of the SVIH Shares to Softline;
(b) Transfer of the Softline Shares to SVIH;
(c) Delivery of the Technology Assets to SVIH;
(d) The performance by SVIH and Softline of their respective covenants and
obligations under this Agreement.
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2.4. "Contract" means any agreement, contract, obligation, promise, or
undertaking (whether written or oral and whether express or implied) that is
legally binding.
2.5. "Governing Authorization" means any approval, consent, license, permit,
waiver, or other authorization issued, granted, given, or otherwise made
available by or under the authority of any governmental body or pursuant to
any legal requirement.
2.6. "Person" means any individual, corporation, general or limited
partnership, limited liability company, joint venture, estate, trust,
association, organization, labor union, or other entity.
2.7. "Proceeding" means any action, arbitration, audit, hearing,
investigation,
litigation, or suit (whether civil, criminal, administrative, investigative,
or informal) commenced, brought, conducted, or heard by or before, or
otherwise
involving, any governmental body or arbitrator.
2.8. "Technology Assets" means software programs, object and source code, all
associated products, know-how and enhancements which together comprise
packages called "Brilliant" and/or "Brilliant Accounting" that enables retail,
wholesale, distribution, and/or manufacturing enterprises to conduct all their
transactions in an integrated, computerized environment and includes all
intellectual property rights of every kind in and to such software programs,
object and source code, products and know-how, the name "Brilliant" and all
associated goodwill.
3. Sale and Delivery of the SVIH Shares, the Softline Shares and the
Technology Assets; Closing; Additional Agreements.
3.1. Delivery and Transfer.
Subject to the terms and conditions of this Agreement, at the Closing:
(a)
SVIH will transfer and deliver to Softline the SVIH Shares, and (b) Softline
will transfer and deliver to SVIH the Softline Shares and the Technology
Assets.
3.2. Closing.
Consummation of the delivery and transfer (the "Closing") provided for in
this Agreement will take place, after all conditions specified in Sections 6
and 7 are satisfied or waived by the appropriate party, at the offices of
Xxxxxxx Xxxx Seidenwurm and Xxxxx at 000 X Xxxxxx, Xxxxx 0000, Xxx Xxxxx,
Xxxxxxxxxx 00000. Closing shall only occur after telephonic approval of
Softline's counsel, Xxxxx Xxxxxxxxxx, to be confirmed by fax. Subject to the
provisions of Section 8, failure to consummate the exchange provided for in
this Agreement on the date and time and at the place determined pursuant to
this Section 3.2 will not result in the termination of this Agreement and will
not relieve any party of any obligation under this Agreement.
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3.3. Closing Obligations.
At the Closing:
(a) Softline will deliver to SVIH:
(i) a xxxx of sale and such other instruments as may be necessary or
desirable, in SVIH's reasonable discretion, for the assignment and conveyance
of marketable title to the Technology Assets to SVIH;
(ii) Certificates representing the Softline Shares in a form reasonably
acceptable to Softline and capable of renunciation.
(iii) a certificate executed by the Softline representing and warranting to
SVIH that each of Softline's representations and warranties in this Agreement
was accurate in all respects as of the date of this Agreement and is accurate
in all respects as of the Closing Date as if made on the Closing Date; and
(iv) such other documents as may be required pursuant to Section 6 below.
(b) Subject to Softline's performing all its obligations including, in
accordance with Paragraph 3.3(a) above, SVIH will deliver to Softline:
(i) certificates representing the SVIH Shares;
(ii) a certificate executed by SVIH to the effect that, except as otherwise
stated in such certificate, each of SVIH's representations and warranties in
this Agreement was accurate in all respects as of the date of this Agreement
and is accurate in all respects as of the Closing Date as if made on the
Closing Date.
4. Representations and Warranties of Softline.
Softline represents and warrants to SVIH as follows:
4.1. Organization and Good Standing.
Softline is a corporation duly organized, validly existing, and in good
standing under the laws of its jurisdiction of incorporation, with full
corporate authority to conduct its business as it is now being conducted, and
to own or use the properties and assets that it purports to own or use.
Softline is duly qualified to do business under the laws of each jurisdiction
where applicable law requires such qualification.
4.2. Authority; No Conflict.
(a) This Agreement constitutes the legal, valid, and binding obligation of
Softline, enforceable against Softline in accordance with its terms. Softline
has the absolute and unrestricted right, power, authority, and capacity to
execute and deliver this Agreement and to perform its obligations under this
Agreement.
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(b) Neither the execution and delivery of this Agreement nor the consummation
or performance of any of the Contemplated Transactions will, directly or
indirectly (with or without notice or lapse of time):
(i) contravene, conflict with, or result in a violation of (A) any provision
of the Articles and Memorandum of Association of Softline, or (B) any
resolution adopted by the board of directors or the shareholders of Softline;
(ii) to the best of Softline's reasonable knowledge, contravene, conflict
with, or result in a violation of, or give any governmental body or other
Person the right to challenge any of the Contemplated Transactions or to
exercise any remedy or obtain any relief under, any legal requirement or any
order to which Softline, or the Technology Assets, may be subject;
(iii) to the best of Softline's reasonable knowledge, contravene, conflict
with, or result in a violation of any of the terms or requirements of, or give
any governmental body the right to revoke, withdraw, suspend, cancel,
terminate, or modify, any Governmental Authorization that is held by Softline
that relates to the Contemplated Transactions;
(iv) result in the imposition or creation of any encumbrance upon or with
respect to any of the assets owned or used by Softline.
Softline is not nor will be required to give any notice to or obtain any
consent from any Person in connection with the execution and delivery of this
Agreement or the consummation or performance of any of the Contemplated
Transactions.
4.3. Title to Assets.
Softline is, and as of the Closing Date will be, the sole and absolute owner
of the Technology Assets and has and will have as of the Closing Date good and
marketable title to the Technology Assets, free and clear of any security
interests, conditional sales agreements, liens, claims, charges, reversions,
reservations, restrictions, preferential rights of purchase, encumbrances,
encroachments, burdens or other defects of title. There has been no grant,
assignment or other transfer of any rights in the Technology Assets other than
Softline's retention of the non-transferable exclusive right, in perpetuity,
to distribute the products produced by the Technology Assets in the Republic
of South Africa, providing such distribution is limited to sale to retail
customers for exclusive use in South Africa.
4.4. Legal Proceedings; Orders.
There are no Proceedings by or against Softline or that otherwise relates to
or may affect the Technology Assets, and, to the best of Softline's knowledge,
no such Proceeding has been threatened or is pending.
4.5. Intellectual Property.
(1) Know-How. The Technology Assets include all know-how necessary for the
use, operation, marketing, sale, licensing, and further development of the
Technology Assets by SVIH.
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(2) Trademarks. Softline is in the process of registering trademarks and
tradenames with respect to the Technology Assets and will assign or cede to
SVIH all of Softline's rights or benefits relating to or arising from such
registrations. Softline is the owner of all right, title, and interest in and
to each of such marks, free and clear of all liens, security interests,
charges, encumbrances, equities, and other adverse claims. No such xxxx is
infringed or, to Softline's best knowledge, no such xxxx infringes or is
alleged to infringe any trade name, trademark, or service xxxx of any third
party.
(3) Copyrights. Softline is the owner of all right, title, and interest in
and to each of the copyrights existing with respect to the Technology Assets,
free and clear of all liens, security interests, charges, encumbrances,
equities, and other adverse claims. To the best of Softline's knowledge, no
such copyright is infringed or infringes or is alleged to infringe any
copyright of any third party or is a derivative work based on the work of a
third party.
(4) Trade Secrets. The Technology Assets include all trade secrets,
confidential information, customer lists, software, technical information,
data, process technology, plans, and drawings, materially necessary for the
use, operation, marketing, sale, licensing, and further development of the
Technology Assets by SVIH.
4.6. The Softline Shares.
4.6.1. Softline is the registered and beneficial owner of the Softline Shares
and has good and marketable title to the Softline Shares, free and clear of
any
liens, claims, charges or other encumbrances whatsoever.
4.6.2. There are no outstanding options or rights effecting the Softline
Shares.
4.6.3. The delivery to SVIH of the Softline Shares pursuant to the provisions
of this Agreement will transfer to SVIH valid title thereto, free and clear of
all liens, encumbrances, restrictions and claims of every kind.
4.6.4. The Softline Shares rank pari passu with all other issued shares of
Softline.
4.7. Disclosure.
(a) No representation or warranty of Softline in this Agreement omits to
state a material fact necessary to make the statements herein or therein, in
light of the circumstances in which they were made, not misleading. The
exhibits and schedules attached or prepared in connection with this Agreement
are accurate and complete and not misleading.
(b) To the best of Softline's knowledge and belief there is no fact known to
Softline that has specific application to the Technology Assets and that
materially adversely affects or, as far as any Softline can reasonably
foresee, materially threatens, the use, marketability, or value of the
Technology Assets.
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4.8. Brokers or Finders.
Except for a commission payable solely by Softline, Softline and its
officers have incurred no obligation or liability, contingent or otherwise,
for brokerage or finders' fees or agents' commissions or other similar payment
in connection with this Agreement.
4.9. Securities Representations and Warranties of Softline.
Softline hereby represents and warrants as follows, all of which
representations and warranties are being relied upon by SVIH to establish that
the offer and sale of the SVIH Shares is exempt from the registration and
qualification requirements of federal and applicable state registration and
qualification requirements, and shall survive the acquisition of the SVIH
Shares by Softline:
4.9.1. Softline and Softline's advisors, have had an opportunity to ask
question of and receive answers from SVIH, or persons acting on SVIH' behalf,
concerning the subject offering of the SVIH Shares, and all such questions
have
been answered to the full satisfaction of Softline. Softline has requested and
received such documents and financial statements as Softline deems necessary
in order to fully evaluate the risks associated with investing in SVIH and to
make an informed investment decision.
4.9.2. Softline understands and acknowledges that all documents, records and
books pertaining to an investment in the SVIH Shares have been made available
for inspection to Softline and its legal, tax, and business advisors, and that
the documents, records, and books of SVIH will be available upon reasonable
notice, for inspection by Softline during reasonable business hours at SVIH's
principal place of business. No oral representations have been made, or oral
information furnished, to Softline or Softline's advisors in connection with
the offering of the SVIH Shares which was in any way inconsistent with written
materials, documents, records, and books of SVIH furnished to or made
available to Softline.
4.9.3. Softline acknowledges that it has been provided all pleadings,
documents
and materials related to the litigation where SVIH obtained a preliminary
injunction in the United States District Court (Southern District of
California) against certain defendants, including Park Financial Group, Inc.
("Park Financial"), Xxxxx Xxxx, Bank Martinique, Brink, Xxxxxx & XxXxxxx,
Ltd., Walmur & Co., Pacific International Securities, Inc., Union Securities,
Ltd., Corporate Stock Transfer, Inc., BLB Financial, Inc., Xxxxx Xxxxx, Xxxxx
Xxxxxxxx, Xxxx xx Xxxxxx, Xxxx Xxxxxxxx, Bear Xxxxxxx & Co., Inc., and
Philadelphia Depository Trust Company, in order to prevent the transfer of any
of the two million shares of SVIH's common stock that had been delivered to
Park Financial in contemplation of a loan to be secured by a pledge of stock
that was never funded by Park Financial.
4.9.4. Softline's financial condition is such that (a) it has adequate means
of
providing for its current needs and possible personal contingencies, (b) it
has no need for liquidity in this investment, (c) it is able to bear the
substantial economic risks of an investment in the SVIH Shares for an
indefinite period time, and (d) at the present time, it could afford a
complete
loss of its investment in the SVIH Shares.
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4.9.5. Softline understands and acknowledges the risks related to a
transaction
of this nature.
4.9.6. Softline acknowledges and understands that the SVIH Shares have not
been
registered under the Securities Act of 1993, as amended (the "Act") (nor
registered or qualified under the securities laws of any state) in reliance
upon an exemption from registration for non-public offerings and certain
related factors. Softline understands that the SVIH Shares may not be sold
and must be held indefinitely unless they are subsequently registered under
the Act or an exemption from registration is available or may otherwise be
sold in accordance with applicable law. Softline further understands that SVIH
is under no obligation to register the SVIH Shares unless SVIH makes the
election to register other of SVIH's Shares. SVIH will place upon the
certificates issued to Softline the appropriate legends reflecting this
restriction.
4.9.7. Softline understands that SVIH is relying in large part on Softline's
representations and warranties as set forth in this paragraph 4.9 for purposes
of claiming exemptions from the above referenced securities registration
requirements.
4.9.8. Softline's purchase of the SVIH Shares is for Softline's own account
and
not with a view to or for sale in connection with any distribution of the SVIH
Shares, and no other person has a direct or indirect beneficial interest in
the SVIH Shares.
4.9.9. Softline is a South African limited company authorized and otherwise
duly qualified to purchase and hold the SVIH Shares. Softline has its
principal
place of business as set forth on the signature page of this Agreement and has
not been formed for the specific purpose of acquiring the SVIH Shares.
4.9.10. All information which Softline has provided to SVIH concerning
Softline, Softline's financial condition, and/or the knowledge of financial
and
business matters of the person making the investment decision on behalf of
Softline, is correct and complete as of the date set forth at the end of this
Agreement, and if there should be any adverse change in such information prior
to Softline's investment being accepted by SVIH, Softline will immediately
provide SVIH with such information. The information contained in this
Agreement is complete and accurate and may be relied upon by SVIH.
4.9.11. Softline acknowledges that SVIH has requested information regarding
whether Softline qualifies as an Accredited Investor, as such term is defined
in
Securities and Exchange Commission Rule 501(a). In light of the foregoing,
and in addition to the other representations and warranties being made
Softline in this Agreement, Softline hereby represents, warrants, and confirms
that it qualifies as an Accredited Investor.
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4.9.12. Softline acknowledges and understands that no predictions may be made
as
to the revenues or return which Softline might expect to receive from an
investment in SVIH and that any representation to the contrary is unauthorized
and may not be relied upon.
5. Representations and Warranties of SVIH.
SVIH represents and warrants to Softline as follows:
5.1. Organization and Good Standing.
SVIH is a corporation duly organized, validly existing, and in good standing
under the laws of the State of Nevada.
5.2. Authority; No Conflict.
(a) This Agreement constitutes the legal, valid, and binding obligation of
SVIH, enforceable against SVIH in accordance with its terms. SVIH has the
absolute and unrestricted right, power, and authority to execute and deliver
this Agreement and to perform its obligations under this Agreement.
(b) Neither the execution and delivery of this Agreement by SVIH nor the
consummation or performance of any of the Contemplated Transactions by SVIH
will give any Person the right to prevent, delay, or otherwise interfere with
any of the Contemplated Transactions pursuant to:
(i) any provision of SVIH's Memorandum and Articles of Incorporation;
(ii) any resolution adopted by the board of directors or the stockholders of
SVIH;
(iii) any legal requirement or order to which SVIH may be subject; or
(iv) any Contract to which SVIH is a party or by which SVIH may be bound.
SVIH is not and will not be required to obtain any consent from any Person in
connection with the execution and delivery of this Agreement or the
consummation or performance of any of the Contemplated Transactions.
5.3. Certain Proceedings.
There is no pending Proceeding that has been commenced against SVIH and that
challenges, or may have the effect of preventing, delaying, making illegal, or
otherwise interfering with, any of the Contemplated Transactions. To SVIH's
knowledge, no such proceeding has been threatened.
5.4. Brokers or Finders.
SVIH and its officers and agents have incurred no obligation or liability,
contingent or otherwise, for brokerage or finders' fees or agents' commissions
or other similar payment in connection with this Agreement and will indemnify
and hold Softline harmless from any such payment alleged to be due by or
through SVIH as a result of the action of SVIH or its officers or agents.
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5.5. The SVIH Shares.
5.5.1. SVIH is the registered and beneficial owner of the SVIH Shares and
has
good and marketable title to the SVIH Shares, free and clear of any liens,
claimS, charges or other encumbrances whatsoever.
5.5.2. There are no outstanding options or rights effecting the SVIH Shares.
5.5.3. The delivery to Softline of the SVIH Shares pursuant to the provisions
of this Agreement will transfer to Softline valid title thereto, free and
clear
of all liens, encumbrances, restrictions and claims of every kind.
5.5.4. The SVIH Shares rank pari passu with all other issued shares of SVIH.
6. Conditions Precedent to SVIH's Obligation to Close.
SVIH's obligation to exchange the SVIH Shares and to take the other actions
required to be taken by SVIH at the Closing is subject to the satisfaction, at
or prior to the Closing, of each of the following conditions (any of which may
be waived by SVIH, in whole or in part):
6.1. Accuracy of Representations.
All of Softline's representations and warranties in this Agreement
(considered collectively), and each of these representations and warranties
(considered individually and subject to qualifications set forth in such
representations and warranties), must have been accurate in all material
respects as of the date of this Agreement, and must be accurate in all
material respects as of the Closing Date as if made on the Closing Date.
6.2. Softline's Performance.
All of the covenants and obligations that Softline is required to perform or
to comply with pursuant to this Agreement at or prior to the Closing
(considered collectively), and each of these covenants and obligations
(considered individually), must have been duly performed and complied with in
all material respects.
6.3. No Proceedings.
There must not have been commenced or threatened any Proceeding (a)
involving any challenge to, or seeking damages or other relief in connection
with, any of the Contemplated Transactions, or (b) that may have the effect of
preventing, delaying, making illegal, or otherwise interfering with any of the
Contemplated Transactions.
6.4. No Prohibition.
Neither the consummation nor the performance of any of the Contemplated
Transactions will, directly or indirectly (with or without notice or lapse of
time), materially contravene, or conflict with, or result in a material
violation of, or cause SVIH or any Person affiliated with SVIH to suffer any
material adverse consequence under, (a) any applicable legal requirement or
order, or (b) any legal requirement or order that has been published,
introduced, or otherwise formally proposed by or before any governmental body.
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6.5. Consummation of Related Transaction.
SVIH must have, either prior to or concurrently with the Closing,
consummated the various agreements entered into with Softline and/or Xxxxxx
Consolidated Investments Limited and others including the Sale Agreement, the
Subscription Agreement and the Renunciation Agreement (the "Related
Transactions")
7. Conditions Precedent to Softline's Obligation to Close.
Softline's obligation to exchange the Softline Shares and the Technology
Assets and to take the other actions required to be taken by Softline at the
Closing is subject to the satisfaction, at or prior to the Closing, of each of
the following conditions (any of which may be waived by Softline, in whole or
in part):
7.1. Accuracy of Representations.
All of SVIH's representations and warranties in this Agreement (considered
collectively), and each of these representations and warranties (considered
individually), must have been accurate in all material respects as of the date
of this Agreement and must be accurate in all material respects as of the
Closing Date as if made on the Closing Date.
7.2. No Injunction.
There must not be in effect any legal requirement or any injunction or other
order that (a) prohibits the delivery of the Technology Assets by Softline to
SVIH, and (b) has been adopted or issued, or has otherwise become effective,
since the date of this Agreement.
7.3. Consummation of the Related Transactions.
The Related Transactions shall have been consummated prior to or
concurrently with the Closing.
8. Termination.
8.1. Termination Events.
This Agreement may, by notice given prior to or at the Closing, be
terminated:
(a) by either SVIH or Softline if a material breach of any provision of this
Agreement has been committed by the other party and such breach has not been
waived or cured on or before fourteen (14) days after written notice from the
non-breaching party; provided that if the breaching party has reasonably
commenced curing the breach within such 14 day period but if such breach is
incapable of being cured within such period, the 14 day period shall be
reasonably extended to enable the breaching party to complete cure the breach.
(b) (i) by SVIH if any of the conditions in Section 6 have not been satisfied
as of the Closing Date or if satisfaction of such a condition is or becomes
impossible (other than through the failure of SVIH to comply with its
obligations under this Agreement) and SVIH has not waived such condition on or
before the Closing Date; or (ii) by Softline, if any of the conditions in
Section 7 has not been satisfied of the Closing Date or if satisfaction of
such a condition is or becomes impossible (other than through the failure of
Softline to comply with its obligations under this Agreement) and Softline has
not waived such condition on or before the Closing Date;
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(c) by mutual consent of SVIH and Softline; or
(d) by either SVIH or Softline if the Closing has not occurred (other than
through the failure of any party seeking to terminate this Agreement to comply
fully with its obligations under this Agreement) on or before October 31,
1997, or such later date as the parties may agree upon.
8.2. Effect of Termination.
Each party's right of termination under Section 8.1 is in addition to any
other rights it may have under this Agreement or otherwise, and the exercise
of a right of termination will not be an election of remedies. If this
Agreement is terminated pursuant to Section 8.1, all further obligations of
the parties under this Agreement will terminate, provided, however, that if
this Agreement is terminated by a party because of the breach of the Agreement
by the other party or because one or more of the conditions to the terminating
party's obligations under this Agreement is not satisfied as a result of the
other party's failure to comply with its obligations under this Agreement, the
terminating party's right to pursue all legal remedies will survive such
termination unimpaired.
8.3. No Rescission Remedy. Without prejudice to any other right
or remedy of the parties from and after the Closing neither party may rescind
this Agreement.
9. Indemnification; Remedies.
9.1. Survival.
All representations, warranties, covenants, and obligations in this
Agreement, and any other certificate or document delivered pursuant to this
Agreement, will survive the Closing.
9.2. Indemnification and Payment of Damages by Softline.
For a period of three years from the date of this Agreement, Softline will
indemnify and hold harmless SVIH for, and will pay to SVIH the amount of, any
loss, liability, claim, damage, expense (including costs of investigation and
defense and reasonable attorneys' fees) or diminution of value, whether or not
involving a third-party claim (collectively, "Damages"), arising, directly or
indirectly, from or in connection with:
(a) any breach of any representation or warranty made by such Softline in
this Agreement or any other certificate or document delivered by Softline
pursuant to this Agreement;
(b) any breach of any representation or warranty made by such Softline in
this Agreement as if such representation or warranty were made on and as of
the Closing Date; or
(c) any breach by such Softline of any covenant or obligation of such
Softline in this Agreement;
(d) any claim arising from or relating to an alleged Patent, Trademark,
Copyright or other infringement with respect to the Technology Assets.
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(e) Any matter relating to Softline's ownership of the Technology Assets
prior to Closing;
The remedies provided in this Section 9.2 will not be exclusive of or limit
any other remedies that may be available to SVIH or the other Indemnified
Persons.
9.3. Indemnification and Payment of Damages by SVIH.
For a period of 3 year from the date of this Agreement, SVIH will indemnify
and hold harmless Softline, and will pay to Softline the amount of any damages
arising, directly or indirectly, from or in connection with (a) any breach of
any representation or warranty made by SVIH in this Agreement or in any
certificate delivered by SVIH pursuant to this Agreement, (b) any breach by
SVIH of any covenant or obligation of SVIH in this Agreement, or (c) any claim
by any Person for brokerage or finder's fees or commissions or similar
payments based upon any agreement or understanding alleged to have been made
by such Person with SVIH (or any Person acting on its behalf) in connection
with any of the Contemplated Transactions.
10. Voting Agreement.
Softline will act in all capacities and vote the shares of capital stock of
SVI now or hereafter owned or controlled by it so as to cause and maintain the
election to the Board of Directors of SVIH (the "Board") a majority of the
directors of the Board who are the nominees of the Board for a period of three
years following the date of this Agreement.
11. Restrictions on Transfer of Shares by Softline.
Softline will not sell, assign, transfer, pledge, hypothecate, or otherwise
encumber or dispose of in any way, all or any part of or interest in the
shares of capital stock of SVIH now or hereafter owned or held by it for a
period of three years following the date of this Agreement. Any sale,
assignment, transfer, pledge, hypothecation or other encumbrance or
disposition of shares of the capital stock of SVIH not made in conformance
with this Agreement shall be null and void, shall not be recorded on the books
of SVIH and shall not be recognized by SVIH. SVIH will place upon the
certificates issued to Softline the appropriate legends reflecting this
restriction.
12. General Provisions.
12.1. Expenses.
Except as otherwise expressly agreed to by the parties in writing, each
party to this Agreement will bear expenses incurred in connection with the
preparation, execution, and performance of this Agreement and the Contemplated
Transactions, including the fees and expenses of agents, representatives,
counsel, and accountants. In the event of termination of this Agreement, the
obligation of each party to pay its own expenses will be subject to any rights
of such party arising from a breach of this Agreement by another party.
12.2. Public Announcements.
Any public announcement or similar publicity with respect to this Agreement
or the Contemplated Transactions will be issued, if at all, at such time and
in such manner as the parties may approve in writing which approval shall not
be unreasonably withheld.
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12.3. Notices.
Each notice and other communication required or permitted to be given under
this Agreement ("Notice") must be in writing. Notice is duly given to another
party upon: (a) hand delivery to the other party, (b) receipt by the other
party when sent by facsimile to the address and number for such party set
forth below (provided, however, that the Notice is not effective unless a
duplicate copy of the facsimile Notice is promptly given by one of the other
methods permitted under this paragraph), (c) fourteen business days after the
Notice has been deposited with the United States postal service as first class
certified mail, return receipt requested, postage prepaid, and addressed to
the party as set forth below, or (d) the next business day after the Notice
has been deposited with a reputable overnight delivery service, postage
prepaid, addressed to the party as set forth below with next-business-day
delivery guaranteed, provided that the sending party receives a confirmation
of delivery from the delivery-service-provider.
To SVIH:Xxxxx X. Xxxxxxxxx
Chief Executive Officer
SVI Holdings, Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xx Xxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Copy to:Xxxxxx X. Xxxxx, Esq.
Xxxxxxx Xxxx Seidenwurm & Xxxxx
000 X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
To Softline:Softline Limited
X.X. Xxx 00000
Xxxxxxxxx 0000
Xxxxx Xxxxxx
Phone: 000-00-00000-0000
Fax: 000-00-00-000-0000
Each party shall make a reasonable, good faith effort to ensure that it will
accept or receive Notices to it that are given in accordance with this
paragraph. A party may change its address for purposes of this paragraph by
giving the other party(ies) written notice of a new address in the manner set
forth above.
12.4. Jurisdiction; Service of Process.
Except as provided below, all actions and proceedings arising in connection
with this Agreement must be tried and litigated exclusively in the State and
Federal courts located in the County of San Diego, State of California, which
courts have personal jurisdiction and venue over each of the parties to this
Agreement for the purpose of adjudicating all matters arising out of or
related to this Agreement. Each party authorizes and accepts service of
process sufficient for personal jurisdiction in any action against it as
contemplated by this paragraph by registered or certified mail, return receipt
requested,
14
postage prepaid, to its address for the giving of notices set forth in this
Agreement.
12.5. Further Assurances.
Each party to this Agreement shall execute and deliver all instruments and
documents and take all actions as may be reasonably required or appropriate to
carry out the purposes of this Agreement.
12.6. Waiver.
Any waiver of a default or provision under this Agreement must be in
writing. No such waiver constitutes a waiver of any other default or
provision concerning the same or any other provision of this Agreement. No
delay or omission by a party in the exercise of any of its rights or remedies
constitutes a waiver of (or otherwise impairs) such right or remedy. A
consent to or approval of an act does not waive or render unnecessary the
consent to or approval of any other or subsequent act.
12.7. Entire Agreement and Modification.
This Agreement and all documents specifically referred to and executed in
connection with this Agreement: (a) contain the entire and final agreement of
the parties to this Agreement with respect to the subject matter of this
Agreement, and (b) supersede all negotiations, stipulations, understandings,
agreements, representations and warranties, if any, with respect to such
subject matter, which precede or accompany the execution of this Agreement.
This Agreement may be modified only by a contract in writing executed by the
party to this Agreement against whom enforcement of the modification is
sought.
12.8. Assignments, Successors, and No Third-Party Rights.
Softline may not voluntarily or by operation of law assign, hypothecate,
delegate or otherwise transfer or encumber all or any part of its rights,
duties or other interests in this Agreement without the prior written consent
of SVIH, which consent may be withheld in SVIH's sole and absolute discretion.
Any such transfer in violation of this paragraph is void. Subject to the
foregoing and any other restrictions on transferability contained in this
Agreement, this Agreement is binding upon and inures to the benefit of the
successors-in-interest and assigns of each party to this Agreement. Nothing
in this Agreement is intended to confer any rights or remedies on any person
or entity other than the parties to this Agreement and their respective
successors-in-interest and permitted assignees.
12.9. Severability.
Each provision of this Agreement is valid and enforceable to the fullest
extent permitted by law. If any provision of this Agreement (or the
application of such provision to any person or circumstance) is or becomes
invalid or unenforceable, the remainder of this Agreement, and the application
of such provision to persons or circumstances other than those as to which it
is held invalid or unenforceable, are not affected by such invalidity or
unenforceability.
12.10. Section Headings, Construction.
The headings of the paragraphs of this Agreement have been included only for
convenience, and shall not be deemed in any manner to modify or limit any of
the provisions of this Agreement, or be used in any manner in the
interpretation of this Agreement.
15
12.11. Time of Essence.
Time and strict and punctual performance are of the essence with respect to
each provision of this Agreement.
12.12. Governing Law.
This Agreement is governed by and construed in accordance with the laws of
the State of California, irrespective of California's choice-of-law
principles.
12.13. Counterparts.
This Agreement may be executed in counterparts, each of which is deemed an
original and all of which together constitute one document. All exhibits
attached to and referenced in this Agreement are incorporated into this
Agreement.
12.14. Arbitration.
Any dispute, controversy or claim arising out of or related to this
Agreement shall be finally settled by arbitration in accordance with the Rules
of Conciliation and Arbitration of the International Chamber of Commerce.
(a) In the event of any conflict between these Rules and this Section, the
provisions of this Section will govern. The arbitration shall take place in
San Diego, California. The selection of an arbitrator shall be approved by
agreement between the parties to this Agreement or, if the parties cannot so
agree within 30 days after written notice by either party that it intends to
seek arbitration with respect to a particular dispute, such arbitrator shall
be appointed by Presiding Judge of the Superior Court for the County of San
Diego, California.
(b) The arbitration shall be conducted in the English language. Relevant
documents in other languages shall be translated into English if the
arbitrators so direct. In arriving at their award, the arbitrators shall make
every effort to find a solution to the dispute in the provisions of this
Agreement and shall give full effect to all parts thereof. If a solution
cannot be found in the provisions of the Agreement, the arbitrators shall
apply the laws of the state of California.
(c) The parties agree that after either has filed a notice of demand for
arbitration of any dispute subject to arbitration under this Agreement, they
shall, upon request, make discovery and disclosure of all materials relevant
to the subject of the dispute. The arbitrators shall make the final
determination as to any discovery disputes between the parties. Examination
of witnesses by the parties and by the arbitrators shall be permitted. A
written transcript of the hearing shall be made and furnished to the parties.
The cost of this transcript shall be borne equally by the parties.
(d) The arbitrators shall state the reasons upon which the award is based.
The award of the arbitrators shall be final and binding upon the parties.
Judgment upon the award may be entered in any court having jurisdiction. An
application may be made to any such court for a judicial acceptance of the
award and an order for enforcement.
16
SVIH:SVI HOLDINGS, INC.,
a Nevada corporation
By: /s/ Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx
Chief Executive Officer
Softline:SOFTLINE LIMITED
By: /s/ Xxxx Xxxxxxx
Xxxx Xxxxxxx
Chief Executive Officer
17
TABLE OF CONTENTS
Page
1.Recital.
2.Definitions.
0.Xxxx and Delivery of the SVIH Shares, the Softline Shares and the
Technology Assets; Closing; Additional Agreements.
0.0.Xxxxxxxx and Transfer.
3.2.Closing.
3.3.Closing Obligations.
4.Representations and Warranties of Softline.
4.1.Organization and Good Standing.
4.2.Authority; No Conflict.
4.3.Title to Assets.
0.0.Xxxxx Proceedings; Orders.
4.5.Intellectual Property.
4.6.The Softline Shares.
4.7.Disclosure.
4.8.Brokers or Finders.
4.9.Securities Representations and Warranties of Softline.
5.Representations and Warranties of SVIH.
5.1.Organization and Good Standing.
5.2.Authority; No Conflict.
5.3.Certain Proceedings.
5.4.Brokers or Finders.
5.5.The SVIH Shares.
6.Conditions Precedent to SVIH's Obligation to Close.
6.1.Accuracy of Representations.
6.2.Softline's Performance.
0.0.Xx Proceedings.
0.0.Xx Prohibition.
6.5.Consummation of Related Transaction.
7.Conditions Precedent to Softline's Obligation to Close.
7.1.Accuracy of Representations.
0.0.Xx Injunction.
7.3.Consummation of the Related Transactions.
8.Termination.
8.1.Termination Events.
8.2.Effect of Termination.
9.Indemnification; Remedies.
9.1.Survival.
9.2.Indemnification and Payment of Damages by Softline.
9.3.Indemnification and Payment of Damages by SVIH.
00.Xxxxxx Agreement.
11.Restrictions on Transfer of Shares by Softline.
12.General Provisions.
12.1.Expenses.
12.2.Public Announcements.
12.3.Notices.
12.4.Jurisdiction; Service of Process.
12.5.Further Assurances.
12.6.Waiver.
12.7.Entire Agreement and Modification.
18
12.8.Assignments, Successors, and No Third-Party Rights.
12.9.Severability.
12.10.Section Headings, Construction.
12.11.Time of Essence.
12.12.Governing Law.
12.13.Counterparts.
12.14.Arbitration.
