STOCK PURCHASE AGREEMENT
among:
SILICON STORAGE TECHNOLOGY, INC.,
a California corporation;
LINVEX TECHNOLOGY, CORP.,
a California corporation;
and
THE SHAREHOLDERS OF LINVEX TECHNOLOGY, CORP.
---------------------------
Dated as of June 4, 1999
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TABLE OF CONTENTS
Page
SECTION 1. SALE AND PURCHASE OF SHARES; RELATED TRANSACTIONS...............1
1.1 Sale and Purchase of Shares.....................................1
1.2 Exchange of Shares..............................................1
1.3 Closing.........................................................3
1.4 Further Action..................................................4
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY...................4
2.1 Due Organization; No Subsidiaries; Etc..........................4
2.2 Articles of Incorporation and Bylaws; Records...................5
2.3 Capitalization, Etc.............................................5
2.4 Financial Statements............................................6
2.5 Absence of Changes..............................................6
2.6 Title to Assets.................................................8
2.7 Bank Accounts; Receivables; Customers...........................8
2.8 Equipment; Leasehold............................................9
2.9 Proprietary Assets..............................................9
2.10 Contracts......................................................11
2.11 Liabilities....................................................13
2.12 Compliance with Legal Requirements.............................13
2.13 Governmental Authorizations....................................14
2.14 Tax Matters....................................................14
2.15 Employee and Labor Matters; Benefit Plans......................15
2.16 Environmental Matters..........................................18
2.17 Sale of Products; Performance of Services......................18
2.18 Insurance......................................................19
2.19 Related Party Transactions.....................................19
2.20 Legal Proceedings; Orders......................................19
2.21 Authority; Binding Nature of Agreement.........................20
2.22 Non-Contravention; Consents....................................20
2.23 No Brokers.....................................................21
2.24 Full Disclosure................................................21
i
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SST..........................21
3.1 SEC Filings; Financial Statements..............................21
3.2 Authority; Binding Nature of Agreement.........................22
3.3 Valid Issuance.................................................22
3.4 Organization, Standing and Power...............................22
3.5 No Violation or Conflict.......................................22
3.6 Consent or Approval of Governmental Authorities................23
3.7 Full Disclosure................................................23
SECTION 4. INDEMNIFICATION, ETC...........................................23
4.1 Survival of Representations, Etc...............................23
4.2 Indemnification by Shareholders................................24
4.3 Threshold; Ceiling.............................................25
4.4 No Contribution................................................25
4.5 Defense of Third Party Claims..................................25
4.6 Exercise of Remedies by Indemnitees Other Than SST.............27
4.7 General Release................................................27
4.8 Indemnification by SST.........................................27
4.9 Shareholders' Representative...................................28
SECTION 5. MISCELLANEOUS PROVISIONS.......................................29
5.1 Further Assurances.............................................29
5.2 Fees and Expenses..............................................29
5.3 Attorneys' Fees................................................29
5.4 Notices........................................................29
5.5 Confidentiality................................................30
5.6 Time of the Essence............................................30
5.7 Headings.......................................................30
5.8 Counterparts...................................................31
5.9 Governing Law; Venue...........................................31
5.10 Successors and Assigns.........................................31
5.11 Remedies Cumulative; Specific Performance......................31
5.12 Waiver.........................................................32
ii
5.13 Amendments.....................................................32
5.14 Severability...................................................32
5.15 Parties in Interest............................................32
5.16 Entire Agreement...............................................32
5.17 Construction...................................................32
iii
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement") is made and entered into as of
June 4, 1999, by and among: SILICON STORAGE TECHNOLOGY, INC., a California
corporation ("SST"); LINVEX TECHNOLOGY, CORP., a California corporation (the
"Company"); and the parties identified on Exhibit A representing all of the
holders of capital stock of the Company (the "Shareholders"). Certain
capitalized terms used in this Agreement are defined in Exhibit B.
RECITALS
A. SST intends to purchase all of the outstanding capital stock of the
Company from the Shareholders. Upon consummation of the transactions
contemplated herein the Company will become a wholly-owned subsidiary of SST.
B. This Agreement has been adopted and approved by the respective boards of
directors of SST and the Company.
C. The Shareholders own a total of 5,348,500 shares of the voting Common
Stock, no par value per share, of the Company, 158,335 shares of the Series A
Preferred Stock, no par value per share, of the Company, and 628,380 shares of
the Series B Preferred Stock, no par value per share, of the Company. The voting
Common Stock, Series A Preferred Stock and Series B Preferred Stock are
collectively referred to in this Agreement as "Company Capital Stock."
AGREEMENT
The parties to this Agreement agree as follows:
Section 1. SALE AND PURCHASE OF SHARES; RELATED TRANSACTIONS
1.1 Sale and Purchase of Shares. At the Closing (as defined below), the
Shareholders shall sell, assign, transfer and deliver one hundred percent (100%)
of the Company Capital Stock to SST, and SST issue SST Common Stock to the
Shareholders as the purchase consideration for the Company Capital Stock from
the Shareholders, on the terms and subject to the conditions set forth in this
Agreement (the "Transaction").
1.2 Exchange of Shares.
(a) At the Closing without any further action on the part of SST, the
Company or any Shareholder of the Company:
(i) each share of Company Common Stock outstanding immediately
prior to the Closing shall be converted into the right to receive
.073797 of a share of SST Common Stock;
1.
(ii) each share of Company Series A Preferred Stock outstanding
immediately prior to the Closing shall be converted into the right to
receive .422545 of a share of SST Common Stock;
(iii) each share of Company Series B Preferred Stock outstanding
immediately prior to the Closing shall be converted into the right to
receive .52166 of a share of SST Common Stock;
(b) No fractional shares of SST Common Stock shall be issued in
connection with the Transaction, and no certificates for any such
fractional shares shall be issued. In lieu of such fractional shares, any
holder of Company Capital Stock who would otherwise be entitled to receive
a fraction of a share of SST Common Stock (after aggregating all fractional
shares of SST Common Stock issuable to such holder) shall, upon surrender
of such holder's stock certificate(s) representing shares of Company Common
Stock, be paid in cash the dollar amount (rounded to the nearest whole
cent), without interest, determined by multiplying such fraction by $0.330
if for Common Stock, $1.8896 if for Series A Preferred Stock, and $2.3328
if for Series B Preferred Stock.
(c) The shares of SST Common Stock to be issued in the Transaction
shall be characterized as "restricted securities" for purposes of Rule 144
under the Securities Act, and each certificate representing any of such
shares shall bear a legend identical or similar in effect to the following
legend (together with any other legend or legends required by applicable
state securities laws or otherwise):
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED
UNLESS REGISTERED UNDER THE ACT OR UNLESS AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE ACT IS AVAILABLE."
(d) SST shall be entitled to deduct and withhold from any
consideration payable or otherwise deliverable to any holder or former
holder of Company Capital Stock pursuant to this Agreement such amounts as
SST may be required to deduct or withhold therefrom under the Code or under
any provision of state, local or foreign tax law. To the extent such
amounts are so deducted or withheld, such amounts shall be treated for all
purposes under this Agreement as having been paid to the Person to whom
such amounts would otherwise have been paid.
(e) Notwithstanding anything to the contrary contained in this
Agreement, ten percent (10%) of the shares otherwise issuable to each
Shareholder pursuant to Section 1.5(a) shall be deposited by SST in escrow
(rather than issued and delivered to such Shareholder) as security for the
Shareholders' indemnification obligations under Section 4 and pursuant to
the Escrow Agreement (as defined below).
2.
1.3 Closing.
(a) Closing Date. The consummation of the transactions contemplated by
this Agreement (the "Closing") shall take place at the offices of Cooley
Godward LLP, Five Palo Alto Square, 0000 Xx Xxxxxx Xxxx, Xxxx Xxxx,
Xxxxxxxxxx 00000 at 10:00 a.m. on May 27, 1999 (the "Closing Date").
(b) Pre-Closing Condition. Prior to the Closing the following
obligations shall have been satisfied:
(i) The Company's 1996 Stock Option Plan shall be terminated and
outstanding options, rights, and other securities exercisable for or
convertible into Company Capital Stock thereunder shall have been
exercised or terminated if not previously exercised.
(c) Delivery at Closing. At the Closing, the parties hereto shall take
such actions and execute and deliver, or cause to be executed and
delivered, such agreements and other documents and instruments as are
necessary or appropriate to effect the transactions contemplated by this
Agreement in accordance with its terms, including, the following:
(i) each Shareholder shall execute and deliver to SST a
Shareholder Representation Letter in the form of Exhibit C;
(ii) each Shareholder shall execute and deliver to SST a
Purchaser Questionnaire in the form of Exhibit D;
(iii) each of SST, the Escrow Agent, the Shareholders'
Representative and the Shareholders shall have entered into an Escrow
Agreement in the form of Exhibit E (the "Escrow Agreement");
(iv) each of SST and the Shareholders shall have entered into a
Registration Rights Agreement in the Form of Exhibit F;
(v) the Secretary of the Company shall deliver to SST: (A) an
executed certificate pursuant to which the Secretary represents and
warrants to SST that attached to such certificate are (i) resolutions
duly adopted by the Board of Directors of the Company authorizing and
approving the Transactions contemplated by this Agreement; (ii) a true
and correct copy of the Articles of Incorporation of the Company; and
(iii) a true and correct copy of the Bylaws of the Company, and (B) an
executed certificate as to the incumbency of the officers of the
Company authorized to execute this Agreement;
(vi) The Chief Executive Officer of the Company shall execute and
deliver to SST a certificate setting forth that (A) each of the
representations and warranties made by the Company in this Agreement
are true and correct in all respects as of the date of this Agreement
and are true and correct in all respects as of the Closing Date, (B)
each of the covenants and obligations that the Company and the
Shareholders are required to have complied with or performed pursuant
to this Agreement at or prior to the Closing has been duly complied
with and performed in all respects; and
3.
(vii) the officers and directors of the Company shall resign from
their positions as officers and directors of the Company and shall
deliver to SST letters to such effect.
(viii) the Shareholders shall deliver to SST the stock
certificates representing one hundred percent (100%) of the
outstanding shares of Company Capital Stock, duly endorsed (or
accompanied by duly executed stock powers) and with signatures (i)
guaranteed by a bank, broker, dealer, credit union, savings
association or other entity which is a member in good standing of the
Securities Transfer Agent's Medallion Program, or (ii) otherwise
notorized by a Notary Public, and the respective spouses of the
Shareholders shall deliver any required Spousal Consents; and SST
shall deliver within thirty (30) days of the Closing Date the SST
Common Stock in accordance with Section 1.2 and shall make the cash
payments specified in Section 1.2(a).
1.4 Further Action. If, at any time after the Closing Date, any further
action is determined by SST to be necessary or desirable to carry out the
purposes of this Agreement or to vest SST with full right, title and possession
of and to all rights and property of the Company, the officers and directors of
SST shall be fully authorized (in the name of the Company and otherwise) to take
such action.
Section 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants, to and for the benefit of the
Indemnitees, as follows:
2.1 Due Organization; No Subsidiaries; Etc.
(a) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of California and has all
necessary power and authority: (i) to conduct its business in the manner in
which its business is currently being conducted and in the manner in which
its business is proposed to be conducted; (ii) to own and use its assets in
the manner in which its assets are currently owned and used and in the
manner in which its assets are proposed to be owned and used; and (iii) to
perform its obligations under all Contracts by which it is bound.
(b) The Company has not conducted any business under or otherwise
used, for any purpose or in any jurisdiction, any fictitious name, assumed
name, trade name or other name, other than the name "Linvex Technology,
Corp."
(c) The Company is not, and has not been, required to be qualified,
authorized, registered or licensed to do business as a foreign corporation
in any jurisdiction, except where the failure to be so qualified,
authorized, registered or licensed has not had and will not have a Material
Adverse Effect on the Company.
(d) Part 2.1(d) of the Disclosure Schedule accurately sets forth (i)
the names of the members of the Company's board of directors, and (ii) the
names and titles of the Company's officers. The Company's board of
directors has never established any committees.
4.
(e) The Company has no subsidiaries, and has never owned, beneficially
or otherwise, any shares or other securities of, or any direct or indirect
interest of any nature in, any other Entity.
2.2 Articles of Incorporation and Bylaws; Records. The Company has
delivered to SST accurate and complete copies of: (a) the Company's articles of
incorporation and bylaws, including all amendments thereto; (b) the stock
records of the Company; and (c) the minutes and other records of the meetings
and other proceedings (including any actions taken by written consent or
otherwise without a meeting) of the shareholders of the Company and the board of
directors of the Company. There have been no meetings or other proceedings or
actions of the shareholders of the Company or the board of directors of the
Company that are not fully reflected in such minutes or other records. There has
not been any violation of any of the provisions of the Company's articles of
incorporation or bylaws or of any resolution adopted by the Company's
shareholders or the Company's board of directors. The books of account, stock
records, minute books and other records of the Company are complete in all
material respects, and have been maintained in accordance with prudent business
practices.
2.3 Capitalization, Etc.
(a) The authorized capital stock of the Company consists of (i)
10,000,000 shares of Common Stock, of which 5,348,500 shares have been
issued and are outstanding, (ii) 2,000,000 shares of Series A Preferred
Stock, of which 158,335 shares have been issued and are outstanding, (iii)
1,500,000 shares of Series B Preferred Stock, of which 603,380 shares have
been issued and are outstanding. There are no shares of capital stock held
in the Company's treasury. Part 2.3(a) of the Disclosure Schedule sets
forth the names of the Company's shareholders and the number of shares of
Company Capital Stock owned of record by each of such shareholders. All of
the outstanding shares of Company Capital Stock have been duly authorized
and validly issued, and are fully paid and non-assessable, and none of such
shares is subject to any repurchase option or restriction on transfer
(other than restrictions on transfer imposed by virtue of applicable
federal and state securities laws). As of the date hereof, SST is acquiring
good and valid title to all of the outstanding shares of Company Capital
Stock free and clear of any Encumbrances.
(b) Except as set forth on Part 2.3(b) of the Disclosure Schedule
there is no: (i) outstanding subscription, option, call, warrant or right
(whether or not currently exercisable) to acquire, or otherwise relating
to, any shares of the capital stock or other securities of the Company;
(ii) outstanding security, instrument or obligation that is or may become
convertible into or exchangeable for any shares of the capital stock or
other securities of the Company; (iii) Contract under which the Company is
or may become obligated to sell or otherwise issue any shares of its
capital stock or any other securities; or (iv) condition or circumstance
that may give rise to or provide a basis for the assertion of a claim by
any Person to the effect that such Person is entitled to acquire or receive
any shares of capital stock or other securities of the Company. The
Company's 1996 Stock Option Plan has been terminated and all rights to
receive Company Capital Stock thereunder have been exercised or terminated
if not previously exercised.
5.
(c) All outstanding shares of Company Capital Stock have been issued
in compliance with (i) all applicable securities laws and other applicable
Legal Requirements, and (ii) all requirements set forth in applicable
Contracts.
(d) Any shares of capital stock or other securities repurchased,
redeemed or otherwise reacquired by the Company were validly reacquired in
compliance with (i) the applicable provisions of the California General
Corporation Law and all other applicable Legal Requirements, and (ii) any
requirements set forth in applicable Contracts.
2.4 Financial Statements.
(a) The Company has delivered to SST the following financial
statements and notes (collectively, the "Company Financial Statements"):
(i) the unaudited balance sheets of the Company as of September
30, 1998 and 1997, and the related unaudited statements of income,
statements of shareholders' equity and statements of cash flows of the
Company for the two (2) years then ended; and
(ii) the unaudited balance sheet of the Company as of March 31,
1999 (the "Unaudited Interim Balance Sheet"), and the related
unaudited statement of income of the Company for the six (6) months
then ended.
(b) The Company Financial Statements are accurate and complete in all
respects and present fairly the financial position of the Company as of the
respective dates thereof and the results of operations and cash flows of
the Company for the periods covered thereby. The Company Financial
Statements have been prepared on a consistent basis throughout the periods
covered (except that the financial statements referred to in Section
2.4(a)(ii) are subject to normal and recurring year-end adjustments, which
will not, individually or in the aggregate, be material in magnitude). None
of the financial statements of the Company have ever been audited.
2.5 Absence of Changes. Except as set forth in Part 2.5 of the Disclosure
Schedule, since March 31, 1999:
(a) there has not been any adverse change in the Company's business,
condition, assets, liabilities, operations, financial performance or
prospects, and no event has occurred that will, or could reasonably be
expected to, have a Material Adverse Effect on the Company;
(b) there has not been any loss, damage or destruction to, or any
interruption in the use of, any of the Company's assets (whether or not
covered by insurance);
(c) the Company has not declared, accrued, set aside or paid any
dividend or made any other distribution in respect of any shares of capital
stock, and has not repurchased, redeemed or otherwise reacquired any shares
of capital stock or other securities;
6.
(d) the Company has not sold, issued or authorized the issuance of (i)
any capital stock or other security, (ii) any option, call, warrant or
right to acquire, or otherwise relating to, any capital stock or any other
security, or (iii) any instrument convertible into or exchangeable for any
capital stock or other security;
(e) the Company has not made any capital expenditure which, when added
to all other capital expenditures made by the Company since March 31, 1999,
exceeds $10,000 in the aggregate;
(f) the Company has not (i) entered into or permitted any of the
assets owned or used by it to become bound by any Material Contract (as
defined in Section 2.10(a)), or (ii) amended or prematurely terminated, or
waived any material right or remedy under, any Material Contract to which
it is or was a party or under which it has or had any rights or
obligations;
(g) the Company has not (i) acquired, leased or licensed any right or
other asset from any other Person (other than immaterial rights or other
immaterial assets acquired, leased or licensed by the Company from other
Persons in the ordinary course of business and consistent with the
Company's past practices), (ii) sold or otherwise disposed of, or leased or
licensed, any right or other asset to any other Person (other than
immaterial rights or other immaterial assets disposed of or leased or
licensed by the Company to other Persons in the ordinary course of business
and consistent with the Company's past practices), or (iii) waived or
relinquished any right (other than immaterial rights waived or relinquished
by the Company in the ordinary course of business and consistent with the
Company's past practices);
(h) the Company has not written off as uncollectible, or established
any extraordinary reserve with respect to, any account receivable or other
indebtedness;
(i) the Company has not made any pledge of any of its assets or
otherwise permitted any of its assets to become subject to any Encumbrance,
except for pledges of immaterial assets made in the ordinary course of
business and consistent with the Company's past practices;
(j) the Company has not (i) lent money to any Person, or (ii) incurred
or guaranteed any indebtedness for borrowed money;
(k) the Company has not (i) established, adopted or amended any
Employee Benefit Plan, or (ii) made any profit-sharing or similar payment
to any of its directors, officers or employees;
(l) the Company has not changed any of its methods of accounting or
accounting practices in any respect;
(m) the Company has not made any Tax election other than an election
indicated on the face of an income tax return furnished by the Company to
SST pursuant to this Agreement;
(n) the Company has not commenced or settled any Legal Proceeding;
7.
(o) the Company has not entered into any material transaction or taken
any other material action outside the ordinary course of business or
inconsistent with its past practices; and
(p) the Company has not agreed or committed to take any of the actions
referred to in clauses "(c)" through "(o)" above.
2.6 Title to Assets.
(a) Except as set forth in Part 2.6(a) of the Disclosure Schedule, the
Company owns, and has good, valid and marketable title to, all assets
purported to be owned by it, including: (i) all assets reflected on the
Unaudited Interim Balance Sheet; (ii) all assets referred to in Parts 2.8
and 2.9 of the Disclosure Schedule and all of the Company's rights under
the Contracts identified in Part 2.10(a) of the Disclosure Schedule; and
(iii) all other assets reflected in the Company's books and records as
being owned by the Company. Except as set forth in Part 2.6(a) of the
Disclosure Schedule, all of said assets are owned by the Company free and
clear of any liens or other Encumbrances, except for (i) any lien for
current taxes not yet due and payable, and (ii) minor liens that have
arisen in the ordinary course of business and that do not (in any case or
in the aggregate) materially detract from the value of the assets subject
thereto or materially impair the operations of the Company.
(b) Part 2.6(b) of the Disclosure Schedule identifies all assets that
are being leased or licensed to the Company, except for (i) any equipment
being leased to the Company under a standard operating lease requiring
annual payments by the Company of less than $5,000, and (ii) any software
being licensed to the Company under any third party software license
generally available to the public at a total cost of less than $5,000.
2.7 Bank Accounts; Receivables; Customers.
(a) Part 2.7(a) of the Disclosure Schedule provides accurate and
complete information (including account numbers, type of account and names
of all individuals authorized to draw on or make withdrawals from each
account) with respect to each account maintained by or for the benefit of
the Company at any bank or other financial institution.
(b) Part 2.7(b) of the Disclosure Schedule provides an accurate and
complete breakdown and aging of all accounts receivable, notes receivable
and other receivables of the Company as of March 31, 1999. Except as set
forth in Part 2.7(b) of the Disclosure Schedule, all existing accounts
receivable of the Company (including those accounts receivable reflected on
the Unaudited Interim Balance Sheet that have not yet been collected and
those accounts receivable that have arisen since March 31, 1999 and have
not yet been collected) (i) represent valid obligations of customers of the
Company arising from bona fide transactions entered into in the ordinary
course of business, and (ii) are current and can be collected by the
Company or the Surviving Corporation (without any counterclaim or set off)
when due with no more than a commercially reasonable degree of effort, net
of an allowance for doubtful accounts not to exceed $20,000 in the
aggregate.
8.
(c) Part 2.7(c) of the Disclosure Schedule (i) identifies and provides
an accurate and complete breakdown of the revenues received from each
customer or other Person that accounted for more than $15,000 of the
revenues of the Company in the fiscal year ended September 30, 1998, and
(ii) identifies each customer that is obligated to make payments to the
Company in an aggregate amount exceeding $15,000 per year. The Company has
not received any notice or other communication indicating that any customer
or other Person identified in Part 2.7(c) of the Disclosure Schedule
intends or expects to cease dealing with the Company or to effect a
material reduction in the volume of business transacted by such Person with
the Company below historical levels.
2.8 Equipment; Leasehold.
(a) Part 2.8 of the Disclosure Schedule provides accurate and complete
information with respect to all material items of equipment, fixtures,
leasehold improvements and other tangible assets owned by or leased to the
Company. The assets identified in Part 2.8 of the Disclosure Schedule are
adequate for the uses to which they are being put, are in good condition
and repair (ordinary wear and tear excepted) and are adequate for the
conduct of the Company's business in the manner in which such business is
currently being conducted and in the manner in which such business is
proposed to be conducted.
(b) The Company does not own any real property or any interest in real
property, except for the leasehold created under the real property lease
identified in Part 2.8(b) of the Disclosure Schedule.
2.9 Proprietary Assets.
(a) Part 2.9(a)(1) of the Disclosure Schedule sets forth, with respect
to each Company Proprietary Asset that has been registered, recorded or
filed with any Governmental Body or with respect to which an application
has been filed with any Governmental Body, (i) a brief description of such
Company Proprietary Asset, and (ii) the names of the jurisdictions covered
by the applicable registration, recordation, filing or application. Part
2.9(a)(2) of the Disclosure Schedule identifies and provides a brief
description of all other Company Proprietary Assets owned by the Company.
Part 2.9(a)(3) of the Disclosure Schedule identifies and provides a brief
description of each Company Proprietary Asset that is owned by any other
Person and that is licensed to or used by the Company (except for any
Company Proprietary Asset that is licensed to the Company under any third
party software license that (1) is generally available to the public at a
cost of less than $5,000, and (2) imposes no future monetary obligation on
the Company) and identifies the license agreement or other agreement under
which such Company Proprietary Asset is being licensed to or used by the
Company. Except as set forth in Part 2.9(a)(4) of the Disclosure Schedule,
the Company has good, valid and marketable title to all of the Proprietary
Assets identified in Parts 2.9(a)(1) and 2.9(a)(2) of the Disclosure
Schedule, free and clear of all liens and other Encumbrances, and has a
valid right to use all Proprietary Assets identified in Part 2.9(a)(3) of
the Disclosure Schedule. Except as set forth in Part 2.9(a)(5) of the
Disclosure Schedule, the Company is not obligated to make any payment to
any Person for the use of any Company Proprietary Asset. Except as set
forth in Part 2.9(a)(6) of the Disclosure Schedule, the Company is free to
use, modify, copy, distribute, sell, license or otherwise exploit each of
the
9.
Company Proprietary Assets on an exclusive basis (other than Company
Proprietary Assets consisting of software licensed to the Company under
third party licenses generally available to the public, with respect to
which the Company's rights are not exclusive).
(b) The Company has taken all reasonable measures and precautions
necessary to protect and maintain the confidentiality and secrecy of all
Company Proprietary Assets (except Company Proprietary Assets whose value
would be unimpaired by public disclosure) and otherwise to maintain and
protect the value of all Company Proprietary Assets. Except as set forth in
Part 2.9(b) of the Disclosure Schedule, the Company has not disclosed or
delivered or permitted to be disclosed or delivered to any Person, and no
Person (other than the Company) has access to or has any rights with
respect to, the source code, or any portion or aspect of the source code,
of any Company Proprietary Asset.
(c) None of the Company Proprietary Assets infringes or conflicts with
any Proprietary Asset owned or used by any other Person. Except as set
forth in Part 2.9(c) of the Disclosure Schedule, the Company is not
infringing, misappropriating or making any unlawful use of, and the Company
has not at any time infringed, misappropriated or made any unlawful use of,
or received any notice or other communication of any actual, alleged,
possible or potential infringement, misappropriation or unlawful use of,
any Proprietary Asset owned or used by any other Person. Except as set
forth in Part 2.9(c) of the Disclosure Schedule, no other Person is
infringing, misappropriating or making any unlawful use of, and no
Proprietary Asset owned or used by any other Person infringes or conflicts
with, any Company Proprietary Asset.
(d) The Company Proprietary Assets constitute all the Proprietary
Assets necessary to enable the Company to conduct its business in the
manner in which such business has been conducted and in the manner in which
such business is proposed to be conducted. Except as set forth in Part
2.9(d) of the Disclosure Schedule, (i) the Company has not licensed any of
the Company Proprietary Assets to any Person on an exclusive basis, and
(ii) the Company has not entered into any covenant not to compete or
Contract limiting its ability to exploit fully any of its Proprietary
Assets or to transact business in any market or geographical area or with
any Person.
(e) Except as set forth in Part 2.9(e) of the Disclosure Schedule, all
current and former employees of the Company, and all current and former
consultants and independent contractors to the Company, have executed and
delivered to the Company written agreements (containing no exceptions to or
exclusions from the scope of their coverage) that are substantially
identical to the form of Employee Invention Assignment and Confidentiality
Agreement attached to Part 2.9(e) of the Disclosure Schedule. No current
employee or consultant of the Company has disclosed to the Company any
"Invention" (as such term is defined in the Employee Invention Assignment
and Confidentiality Agreement attached to Part 2.9(e) of the Disclosure
Schedule) as contemplated by such Employee Invention Assignment and
Confidentiality Agreement.
(f) Except as set forth in Part 2.9(f) of the Disclosure Schedule, the
Company has not entered into and is not bound by any Contract under which
any Person has the right to distribute or license, on a commercial basis,
any Company Proprietary Asset including source
10.
code, object code, or any versions, modifications or derivative works of
source code or object code in any Company Proprietary Asset.
(g) Except as set forth in Part 2.9(g) of the Disclosure Schedule, the
Company has no obligation (under any Contract or otherwise) with any of its
customers or any other Person which requires any computer program or other
item of software that has been designed, developed, sold or otherwise made
available by the Company to be Year 2000 Compliant. In the event that any
computer program or other item of software that has been designed,
developed, sold or otherwise made available by the Company is required to
be Year 2000 Compliant, the Company has ensured that such computer program
or other item of software is Year 2000 Compliant. As used in this Section
2.9(g), "Year 2000 Compliant" means, with respect to a computer program or
other item of software (i) the functions, calculations, and other computing
processes of the program or software (collectively, "Processes") perform in
a consistent and correct manner without interruption regardless of the date
on which the Processes are actually performed and regardless of the date
input to the applicable computer system, whether before, on, or after
January 1, 2000; (ii) the program or software accepts, calculates,
compares, sorts, extracts, sequences, and otherwise processes date inputs
and date values, and returns and displays date values, in a consistent and
correct manner regardless of the dates used whether before, on, or after
January 1, 2000; (iii) the program or software accepts and responds to year
input, if any, in a manner that resolves any ambiguities as to century in a
defined, predetermined, and appropriate manner; (iv) the program or
software stores and displays date information in ways that are unambiguous
as to the determination of the century; and (v) leap years will be
determined by the following standard (A) if dividing the year by 4 yields
an integer, it is a leap year, except for years ending in 00, but (B) a
year ending in 00 is a leap year if dividing it by 400 yields an integer.
2.10 Contracts.
(a) Part 2.10(a) of the Disclosure Schedule identifies each Company
Contract that constitutes a "Material Contract." (For purposes of this
Agreement, each of the following (and each other Contract that is material
to the business of the Company) shall be deemed to constitute a "Material
Contract":
(i) any Contract relating to the employment or engagement of, or
the performance of services by, any employee, consultant or
independent contractor;
(ii) any Contract relating to the acquisition, transfer, use,
development, sharing or license of any technology or any Proprietary
Asset;
(iii) any Contract imposing any restriction on the Company's
right or ability (A) to compete with any other Person, (B) to acquire
any product or other asset or any services from any other Person, to
sell any product or other asset to or perform any services for any
other Person or to transact business or deal in any other manner with
any other Person, or (C) to develop or distribute any technology;
11.
(iv) any Contract creating or involving any agency relationship,
distribution arrangement or franchise relationship;
(v) any Contract relating to the acquisition, issuance or
transfer of any securities;
(vi) any Contract creating or relating to the creation of any
Encumbrance with respect to any asset owned or used by the Company;
(vii) any Contract involving or incorporating any guaranty, any
pledge, any performance or completion bond, any indemnity, any right
of contribution or any surety arrangement;
(viii) any Contract creating or relating to any partnership or
joint venture or any sharing of revenues, profits, losses, costs or
liabilities;
(ix) any Contract relating to the purchase or sale of any product
or other asset by or to, or the performance of any services by or for,
any Related Party (as defined in Section 2.19);
(x) any Contract to which any Governmental Body is a party or
under which any Governmental Body has any rights or obligations, or
involving or directly or indirectly benefiting any Governmental Body
(including any subcontract or other Contract between the Company and
any contractor or subcontractor to any Governmental Body);
(xi) any Contract entered into outside the ordinary course of
business or inconsistent with the Company's past practices;
(xii) any Contract that has a term of more than 60 days and that
may not be terminated by the Company (without penalty) within 60 days
after the delivery of a termination notice by the Company; and
(xiii) any Contract (not otherwise identified in clauses "(i)"
through "(xii)" of this sentence) that contemplates or involves (A)
the payment or delivery of cash or other consideration in an amount or
having a value in excess of $15,000 in the aggregate, or (B) the
performance of services having a value in excess of $15,000 in the
aggregate.)
(b) The Company has delivered to SST accurate and complete copies of
all Contracts identified in Part 2.10(a) of the Disclosure Schedule,
including all amendments thereto. Each Contract identified in Part 2.10(a)
of the Disclosure Schedule is valid and in full force and effect, and is
enforceable by the Company in accordance with its terms, subject to (i)
laws of general application relating to bankruptcy, insolvency and the
relief of debtors, and (ii) rules of law governing specific performance,
injunctive relief and other equitable remedies. Other than the Contracts
referred to in Part 2.10(a) of the Disclosure Schedule, the Company is not
now, and has never been, a party to or bound by any Contract with any third
party that contains a provision (which is currently in force) limiting the
Company from soliciting or entering into a relationship
12.
with any employee, customer, client, supplier or similar Person of such
third party or of any affiliate of such third party.
(c) Except as set forth in Part 2.10(c) of the Disclosure Schedule:
(i) the Company has not violated or breached in any material
respect, or committed any default in any material respect under, any
Company Contract, and, to the Knowledge of the Company, no other
Person has violated or breached, or committed any default under, any
Company Contract;
(ii) to the Knowledge of the Company, no event has occurred, and
no circumstance or condition exists, that (with or without notice or
lapse of time) will, or could reasonably be expected to, (A) result in
a violation or Breach of any of the provisions of any Company
Contract, (B) give any Person the right to declare a default or
exercise any remedy under any Company Contract, (C) give any Person
the right to accelerate the maturity or performance of any Company
Contract, or (D) give any Person the right to cancel, terminate or
materially modify any Company Contract;
(iii) the Company has not received any notice or other
communication regarding (i) any actual or possible violation or Breach
of, or default under, any Company Contract, or (ii) any actual or
possible termination of any Company Contract; and
(iv) the Company has not waived any of its material rights under
any Contract.
(d) No Person is renegotiating, or has the right to renegotiate, any
amount paid or payable to the Company under any Company Contract or any
other term or provision of any Company Contract.
(e) The Contracts identified in Part 2.10(a) of the Disclosure
Schedule collectively constitute all of the Material Contracts necessary to
enable the Company to conduct its business in the manner in which its
business is currently being conducted and in the manner in which its
business is proposed to be conducted.
2.11 Liabilities.
(a) The Company has no accrued, contingent or other liabilities of any
nature, either matured or unmatured, except for: (i) liabilities identified
as such in the "liabilities" column of the Unaudited Interim Balance Sheet;
(ii) accounts payable or accrued salaries that have been incurred by the
Company since March 31, 1999 in the ordinary course of business and
consistent with the Company's past practices; and (iii) the liabilities (if
any) identified in Part 2.11(a) of the Disclosure Schedule.
(b) Part 2.11(b) of the Disclosure Schedule provides an accurate and
complete breakdown of (i) all accounts payable of the Company as of Xxxxx
00, 0000, (xx) all notes payable of the Company and all indebtedness of the
Company for borrowed money, and (iii) all customer deposits and other
deposits held by the Company as of March 31, 1999.
13.
(c) Except as set forth in Part 2.11(c) of the Disclosure Schedule,
the Company has not paid any fees, costs or expenses of the type referred
to in Section 5.3.
2.12 Compliance with Legal Requirements. The Company is, and has at all
times been, in compliance in all material respects with each Legal Requirement
that is applicable to it or to the conduct of its business or the ownership of
its assets. No event has occurred, and no condition or circumstance exists, that
might (with or without notice or lapse of time) constitute or result directly or
indirectly in a violation by the Company of, or a failure on the part of the
Company to comply with, any Legal Requirement. Except as set forth in Part 2.12
of the Disclosure Schedule, the Company has never received any notice or other
communication from any Governmental Body regarding any actual or possible
violation of, or failure to comply with, any material Legal Requirement.
2.13 Governmental Authorizations. Part 2.13 of the Disclosure Schedule
identifies each Governmental Authorization held by the Company, and the Company
has delivered to SST accurate and complete copies of all Governmental
Authorizations identified in Part 2.13 of the Disclosure Schedule. The
Governmental Authorizations identified in Part 2.13 of the Disclosure Schedule
are valid and in full force and effect, and collectively constitute all
Governmental Authorizations necessary to enable the Company to conduct its
business in the manner in which its business is currently being conducted and in
the manner in which its business is proposed to be conducted. The Company is,
and at all times has been, in compliance with the material terms and
requirements of the respective Governmental Authorizations identified in Part
2.13 of the Disclosure Schedule. The Company has never received any notice or
other communication from any Governmental Body regarding (a) any actual or
possible violation of or failure to comply with any term or requirement of any
Governmental Authorization, or (b) any actual or possible revocation,
withdrawal, suspension, cancellation, termination or modification of any
Governmental Authorization.
2.14 Tax Matters.
(a) All Tax Returns required to be filed by or on behalf of the
Company with any Governmental Body on or before the date hereof (the
"Company Returns") (i) have been filed in a timely manner, and (ii) have
been accurately and completely prepared in compliance with all applicable
Legal Requirements. All amounts shown on the Company Returns to be due on
or before the date hereof have been paid. The Company has delivered to SST
accurate and complete copies of all filed Company Returns.
(b) Except for immaterial failures to pay, withhold or collect Taxes
(or to establish reserves) (i) each Tax required to have been paid, or
claimed by any Governmental Body to be payable, by the Company (whether
pursuant to any Tax Return or otherwise) has been duly paid in full on a
timely basis; (ii) any Tax required to have been withheld or collected by
the Company has been duly withheld and collected on a timely basis; and (to
the extent required) each such Tax has been paid to the appropriate
Governmental Body on a timely basis; and (iii) the Company has established,
in the ordinary course of business and consistent with its past practices,
reserves adequate for the payment of all Taxes for the period from March
31, 1999 through the date hereof.
14.
(c) No Company Return relating to income Taxes has ever been examined
or audited by any Governmental Body. Except as set forth in Part 2.14(c) of
the Disclosure Schedule, there has been no examination or audit of any
Company Return, and no such examination or audit has been proposed or
scheduled by any Governmental Body. The Company has delivered to SST
accurate and complete copies of all audit reports and similar documents (to
which the Company has access) relating to the Company Returns. Except as
set forth in Part 2.14(c) of the Disclosure Schedule, no extension or
waiver of the limitation period applicable to any of the Company Returns
has been granted (by the Company or any other Person), and no such
extension or waiver has been requested from the Company.
(d) Except as set forth in Part 2.14(d) of the Disclosure Schedule, no
claim or Legal Proceeding is pending or has been threatened against or with
respect to the Company in respect of any Tax. There are no unsatisfied
liabilities for Taxes (including liabilities for interest, additions to tax
and penalties thereon and related expenses) with respect to any notice of
deficiency or similar document received by the Company. There are no liens
for Taxes upon any of the assets of the Company, except liens for current
Taxes not yet due and payable. The Company has not entered into or become
bound by any agreement or consent pursuant to Section 341(f) of the Code.
The Company has not been, and the Company will not be, required to include
any adjustment in taxable income for any tax period (or portion thereof)
pursuant to Section 481 or 263A of the Code or any comparable provision
under state or foreign Tax laws as a result of transactions or events
occurring, or accounting methods employed, prior to the date hereof.
(e) There is no agreement, plan, arrangement or other Contract
covering any Company Employee or any independent contractor or former
employee or independent contractor of the Company that, considered
individually or considered collectively with any other such Contracts,
will, or could reasonably be expected to, give rise directly or indirectly
to the payment of any amount that would not be deductible pursuant to
Section 280G or Section 162 of the Code. The Company is not, and has never
been, a party to or bound by any tax indemnity agreement, tax sharing
agreement, tax allocation agreement or similar Contract.
(f) Except as set forth in Part 2.14(f) of the Disclosure Schedule (i)
no Governmental Body has asserted any claim or otherwise made any
allegation that the Company has failed or may have failed to pay any sales
tax, use tax or similar Tax, and (ii) the Company has not engaged in any
discussions or negotiations with any Governmental Body, and has not sent
any written communication to or received any written communication from any
Governmental Body, in connection with any possible failure on the part of
the Company to pay any sales tax, use tax or similar Tax.
2.15 Employee and Labor Matters; Benefit Plans.
(a) Part 2.15(a) of the Disclosure Schedule contains a list of all
Company Employees, and correctly reflects their salaries, any other
compensation payable to them (including compensation payable pursuant to
bonus, deferred compensation or commission arrangements), their dates of
employment and their positions. The Company is not, and has
15.
never been, a party to any collective bargaining contract or other Contract
with a labor union involving any of its current or former employees.
(b) There is no Company Employee who is not fully available to perform
work because of disability or other leave. The employment of each of the
Company Employees is terminable by the Company at will. The Company has
delivered to SST accurate and complete copies of all employee manuals and
handbooks, disclosure materials, policy statements and other materials
relating to the employment of the Company Employees.
(c) Part 2.15(c) of the Disclosure Schedule identifies each salary,
bonus, deferred compensation, incentive compensation, stock purchase, stock
option, severance pay, termination pay, hospitalization, medical,
insurance, supplemental unemployment benefits, profit-sharing, pension or
retirement plan, program or agreement (individually referred to as a "Plan"
and collectively referred to as the "Plans") sponsored, maintained,
contributed to or required to be contributed to by the Company for the
benefit of any current or former employee of the Company.
(d) Except as set forth in Part 2.15(d) of the Disclosure Schedule,
the Company does not maintain, sponsor or contribute to, and the Company
has not at any time in the past maintained, sponsored or contributed to,
any employee pension benefit plan (as defined in Section 3(2) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
whether or not excluded from coverage under specific Titles or Merger
Subtitles of ERISA) for the benefit of employees or former employees of the
Company (a "Pension Plan").
(e) The Company does not maintain, sponsor or contribute to any
employee welfare benefit plan (as defined in Section 3(1) of ERISA, whether
or not excluded from coverage under specific Titles or Merger Subtitles of
ERISA) for the benefit of employees or former employees of the Company (a
"Welfare Plan") except for those Welfare Plans described in Part 2.15(e) of
the Disclosure Schedule, none of which is a multiemployer plan (within the
meaning of Section 3(37) of ERISA).
(f) With respect to each Plan, the Company has delivered to SST:
(i) an accurate and complete copy of such Plan (including all
amendments thereto);
(ii) an accurate and complete copy of the annual report (if
required under ERISA) with respect to such Plan for each of 1998 and
1997;
(iii) an accurate and complete copy of (A) the most recent
summary plan description, together with each Summary of Material
Modifications (if required under ERISA) with respect to such Plan, and
(B) each material employee communication relating to such Plan;
(iv) if such Plan is funded through a trust or any third party
funding vehicle, an accurate and complete copy of the trust or other
funding agreement (including all
16.
amendments thereto) and accurate and complete copies the most recent
financial statements thereof;
(v) accurate and complete copies of all Contracts relating to
such Plan, including service provider agreements, insurance contracts,
minimum premium contracts, stop-loss agreements, investment management
agreements, subscription and participation agreements and
recordkeeping agreements; and
(vi) an accurate and complete copy of the most recent
determination letter received from the Internal Revenue Service with
respect to such Plan (if such Plan is intended to be qualified under
Section 401(a) of the Code).
(g) The Company is not and has never been required to be treated as a
single employer with any other Person under Section 4001(b)(1) of ERISA or
Section 414(b), (c), (m) or (o) of the Code. The Company has never been a
member of an "affiliated service group" within the meaning of Section
414(m) of the Code. The Company has never made a complete or partial
withdrawal from a "multiemployer plan" (as defined in Section 3(37) of
ERISA) resulting in "withdrawal liability" (as defined in Section 4201 of
ERISA), without regard to subsequent reduction or waiver of such liability
under either Section 4207 or 4208 of ERISA.
(h) The Company does not have any plan or commitment to create any
additional Welfare Plan or any Pension Plan, or to modify or change any
existing Welfare Plan or Pension Plan (other than to comply with applicable
law).
(i) No Welfare Plan provides death, medical or health benefits
(whether or not insured) with respect to any current or former employee of
the Company after any such employee's termination of service (other than
(i) benefit coverage mandated by applicable law, including coverage
provided pursuant to Section 4980B of the Code, (ii) deferred compensation
benefits accrued as liabilities on the Unaudited Interim Balance Sheet, and
(iii) benefits the full cost of which are borne by current or former
employees of the Company (or their beneficiaries)).
(j) With respect to each of the Welfare Plans constituting a group
health plan within the meaning of Section 4980B(g)(2) of the Code, the
provisions of Section 4980B of the Code ("COBRA"), to the extent applicable
to the Company, have been complied with in all material respects.
(k) Each of the Plans has been operated and administered in all
material respects in accordance with applicable Legal Requirements,
including ERISA and the Code.
(l) Each of the Plans intended to be qualified under Section 401(a) of
the Code has received a favorable determination from the Internal Revenue
Service, and neither the Company nor any of the Shareholders is aware of
any reason why any such determination letter should be revoked.
(m) Except as set forth in Part 2.15(m) of the Disclosure Schedule,
neither the execution, delivery or performance of this Agreement, nor the
consummation of the Merger or
17.
any of the other transactions contemplated by this Agreement, will result
in any bonus payment, golden parachute payment, severance payment or other
payment to any current or former employee or director of the Company
(whether or not under any Plan), or materially increase the benefits
payable under any Plan, or result in any acceleration of the time of
payment or vesting of any such benefits.
(n) The Company is in compliance in all material respects with all
applicable Legal Requirements and Contracts relating to employment,
employment practices, employee compensation, wages, bonuses and terms and
conditions of employment.
(o) The Company has good labor relations, and, except as set forth in
Part 2.15(o) of the Disclosure Schedule, the Company has no Knowledge that
(i) the consummation of the transactions contemplated by this Agreement
will have a material adverse effect on the Company's labor relations, or
(ii) any of the Company Employees intends to terminate his or her
employment with the Company. To the Knowledge of the Company, no Company
Employee is a party to or is bound by any confidentiality agreement,
noncompetition agreement or other Contract (with any Person) that may have
an adverse effect on (A) the performance by such Company Employee of any of
his duties or responsibilities as an employee of the Company, or (B) the
business or operations of the Company.
2.16 Environmental Matters. The Company is and has at all times been in
compliance in all material respects with all applicable Environmental Laws. To
the Knowledge of the Company, each property that is owned by, leased to,
controlled by or used by the Company, and all surface water, groundwater, soil
and air associated with or adjacent to such property (a) is free of any
Hazardous Material and any harmful chemical or physical conditions, and (b) is
free of any environmental contamination of any nature. The Company possesses all
permits and other Governmental Authorizations required under applicable
Environmental Laws, and the Company is and has at all times been in compliance
with the terms and requirements of all such Governmental Authorizations. The
Company has not received any notice or other communication (whether from a
Governmental Body, citizens group, employee or otherwise) that alleges that the
Company is not in compliance with any Environmental Law, and, to the Knowledge
of the Company, there are no circumstances that could reasonably be expected to
prevent or interfere with the Company's compliance with any Environmental Law in
the future. To the Knowledge of the Company, no current or prior owner of any
property leased or controlled by the Company has received any notice or other
communication (whether from a Governmental Body, citizens group, employee or
otherwise) that alleges that such current or prior owner or the Company is not
or was not in compliance with any Environmental Law. All Governmental
Authorizations currently held by the Company pursuant to Environmental Laws are
identified in Part 2.16 of the Disclosure Schedule. (For purposes of this
Section 2.16: (i) "Environmental Law" means any federal, state, local or foreign
Legal Requirement relating to pollution or protection of human health or the
environment (including ambient air, surface water, ground water, land surface or
subsurface strata), including any law or regulation relating to emissions,
discharges, releases or threatened releases of Materials of Environmental
Concern, or otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of Materials of
Environmental Concern; and (ii) "Materials of Environmental Concern" include
chemicals, pollutants, contaminants, wastes, toxic substances,
18.
petroleum and petroleum products and any other substance that is now or in the
future regulated by any Environmental Law or that is otherwise a danger to
health, reproduction or the environment.)
2.17 Sale of Products; Performance of Services.
(a) All installation services, design services, development services,
programming services, repair services, maintenance services, support
services, training services, upgrade services and other services that have
been performed by the Company were performed in all material respects in
accordance with the terms of any applicable Contract or warranty.
(b) To the Knowledge of the Company, the Company will not incur or
otherwise become subject to any Liability arising directly or indirectly
from any installation services, design services, development services,
programming services, repair services, maintenance services, support
services, training services, upgrade services or other services performed
by the Company.
(c) Except as set forth in Part 2.17(d) of the Disclosure Schedule, no
customer or other Person has ever asserted or threatened to assert any
claim against the Company (i) under or based upon any warranty provided by
or on behalf of the Company, or (ii) under or based upon any other warranty
relating to any product, system or program designed or developed by the
Company or any services performed by the Company. To the Knowledge of the
Company and the Shareholders, no event has occurred, and no condition or
circumstance exists, that might (with or without notice or lapse of time)
directly or indirectly give rise to or serve as a basis for the assertion
of any such claim.
2.18 Insurance. Part 2.18 of the Disclosure Schedule provides accurate and
complete information with respect to each insurance policy maintained by, at the
expense of or for the benefit of the Company and with respect to any claims made
thereunder. The Company has delivered to SST accurate and complete copies of the
insurance policies identified in Part 2.18 of the Disclosure Schedule. Each of
the insurance policies identified in Part 2.18 of the Disclosure Schedule is in
full force and effect. The Company has never received any notice or other
communication regarding any actual or possible (a) cancellation or invalidation
of any insurance policy, (b) refusal of any coverage or rejection of any claim
under any insurance policy, or (c) material adjustment in the amount of the
premiums payable with respect to any insurance policy. No event has occurred,
and no condition or circumstance exists, that might (with or without notice or
lapse of time) give rise to or serve as a basis for any claim under any
insurance policy identified in Part 2.18 of the Disclosure Schedule.
2.19 Related Party Transactions. Except as set forth in Part 2.19 of the
Disclosure Schedule: (a) no Related Party has, and no Related Party has at any
time had any direct or indirect interest in any material asset used in or
otherwise relating to the business of the Company; (b) no Related Party is, or
has at any time been, indebted to the Company; (c) no Related Party has entered
into, or has had any direct or indirect financial interest in, any material
Contract, transaction or business dealing involving the Company; (d) no Related
Party is competing, or has at any time competed, directly or indirectly, with
the Company; and (e) no
19.
Related Party has any claim or right against the Company (other than rights to
receive compensation for services performed as an employee of the Company). (For
purposes of this Section 2.19, each of the following shall be deemed to be a
"Related Party": (i) each of the Shareholders; (ii) each individual who is, or
who has at any time been an officer or director of the Company; (iii) each
individual who is, or who at any time been a member of the immediate family of
any of the individuals referred to in clauses "(i)" and "(ii)" above; and (iv)
any trust or other Entity (other than the Company) in which any one of the
individuals referred to in clauses "(i)", "(ii)" and "(iii)" above holds (or in
which more than one of such individuals collectively hold), beneficially or
otherwise, a material voting, proprietary or equity interest.)
2.20 Legal Proceedings; Orders.
(a) Except as set forth in Part 2.20(a) of the Disclosure Schedule,
there is no pending Legal Proceeding, and (to the Knowledge of the Company)
no Person has threatened to commence any Legal Proceeding: (i) that
involves the Company or any of the assets owned or used by the Company; or
(ii) that challenges, or that may have the effect of preventing, delaying,
making illegal or otherwise interfering with, the Merger or any of the
other transactions contemplated by this Agreement. To the Knowledge of the
Company, except as set forth in Part 2.20(a) of the Disclosure Schedule, no
event has occurred, and no claim, dispute or other condition or
circumstance exists, that will, or that could reasonably be expected to,
give rise to or serve as a basis for the commencement of any such Legal
Proceeding.
(b) Except as set forth in Part 2.20(b) of the Disclosure Schedule, no
Legal Proceeding has ever been commenced by, and no Legal Proceeding has
ever been pending against, the Company.
(c) There is no order, writ, injunction, judgment or decree to which
the Company, or any of the assets owned or used by the Company, is subject.
None of the Shareholders is subject to any order, writ, injunction,
judgment or decree that relates to the Company's business or to any of the
assets owned or used by the Company. To the Knowledge of the Company, no
officer or other Company Employee is subject to any order, writ,
injunction, judgment or decree that prohibits such officer or other Company
Employee from engaging in or continuing any conduct, activity or practice
relating to the Company's business.
2.21 Authority; Binding Nature of Agreement. The Company has the right,
power and authority to enter into and to perform its obligations under this
Agreement and under each other agreement, document or instrument referred to in
or contemplated by this Agreement to which the Company is or will be a party;
and the execution, delivery and performance by the Company of this Agreement and
of each such other agreement, document and instrument have been duly authorized
by all necessary action on the part of the Company and its board of directors.
This Agreement and each other agreement, document and instrument referred to in
or contemplated by this Agreement to which the Company is a party constitutes
the legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, subject to (i) laws of general application
relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of
law governing specific performance, injunctive relief and other equitable
remedies.
20.
2.22 Non-Contravention; Consents. Neither (1) the execution, delivery or
performance of this Agreement or any of the other agreement, document or
instrument referred to in or contemplated by this Agreement, nor (2) the
consummation of the Transaction or any of the other transactions contemplated by
this Agreement or any such other agreement, document or instrument, will
directly or indirectly (with or without notice or lapse of time):
(a) contravene, conflict with or result in a violation of (i) any of
the provisions of the Company's articles of incorporation or bylaws, or
(ii) any resolution adopted by the Company's shareholders or the Company's
board of directors;
(b) contravene, conflict with or result in a violation of, or give any
Governmental Body or other Person the right to challenge any of the
transactions contemplated by this Agreement or to exercise any remedy or
obtain any relief under, any Legal Requirement or any order, writ,
injunction, judgment or decree to which the Company, or any of the assets
owned or used by the Company, is subject;
(c) 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 the Company or that otherwise relates to the
Company's business or to any of the assets owned or used by the Company;
(d) contravene, conflict with or result in a violation or breach of,
or result in a default under, any provision of any Company Contract, or
give any Person the right to (i) declare a default or exercise any remedy
under any Company Contract, (ii) accelerate the maturity or performance of
any Company Contract, or (iii) cancel, terminate or modify any Company
Contract; or
(e) result in the imposition or creation of any lien or other
Encumbrance upon or with respect to any asset owned or used by the Company
(except for minor liens that will not, in any case or in the aggregate,
materially detract from the value of the assets subject thereto or
materially impair the operations of the Company).
The Company is not and will not be required to make any filing with or give any
notice to, or to obtain any Consent (other than Shareholder Consent) from, any
Person in connection with (x) the execution, delivery or performance of this
Agreement or any other agreement, document or instrument referred to in or
contemplated by this Agreement, or (y) the consummation of the Merger or any of
the other transactions contemplated by this Agreement or contemplated by any
other agreement, document or instrument referred to in or contemplated by this
Agreement.
2.23 No Brokers. The Company has not agreed nor has it become obligated to
pay to any Person, or has taken any action that might result in any Person
claiming to be entitled to receive, any brokerage commission, finder's fee or
similar commission or fee in connection with any of the transactions
contemplated by this Agreement.
21.
2.24 Full Disclosure. This Agreement (including the Disclosure Schedule)
does not (i) contain any representation, warranty or information that is false
or misleading with respect to any material fact, or (ii) omit to state any
material fact necessary in order to make the representations, warranties and
information contained herein (in light of the circumstances under which such
representations, warranties and information were made or provided) not false or
misleading.
Section 3. REPRESENTATIONS AND WARRANTIES OF SST
SST hereby represents and warrants to, and for the benefit of, the Company
and the Shareholders as follows:
3.1 SEC Filings; Financial Statements.
(a) SST has delivered or otherwise made available to the Shareholders
accurate and complete copies (excluding copies of exhibits) of each report,
registration statement (on a form other than Form S-8) and definitive proxy
statement filed by SST with the SEC between January 1, 1998 and the date of
this Agreement (the "SST SEC Documents"). As of the time it was filed with
the SEC (or, if amended or superseded by a filing prior to the date of this
Agreement, then on the date of such filing): (i) each of the SST SEC
Documents complied in all material respects with the applicable
requirements of the Securities Act or the Exchange Act (as the case may
be); and (ii) none of the SST SEC Documents 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 the
light of the circumstances under which they were made, not misleading.
(b) The consolidated financial statements contained in the SST SEC
Documents: (i) complied as to form in all material respects with the
published rules and regulations of the SEC applicable thereto; (ii) were
prepared in accordance with generally accepted accounting principles
applied on a consistent basis throughout the periods covered, except as may
be indicated in the notes to such financial statements and (in the case of
unaudited statements) as permitted by Form 10-Q of the SEC, and except that
unaudited financial statements may not contain footnotes and are subject to
normal and recurring year-end audit adjustments (which will not,
individually or in the aggregate, be material in magnitude); and (iii)
fairly present the consolidated financial position of SST and its
subsidiaries as of the respective dates thereof and the consolidated
results of operations of SST and its subsidiaries for the periods covered
thereby.
3.2 Authority; Binding Nature of Agreement. SST has the right, power and
authority to perform its obligations under this Agreement; and the execution,
delivery and performance by SST and of this Agreement has been duly authorized
by all necessary action on the part of SST's Board of Directors. This Agreement
constitutes the legal, valid and binding obligation of SST, enforceable against
it in accordance with its terms, subject to (i) laws of general application
relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of
law governing specific performance, injunctive relief and other equitable
remedies.
22.
3.3 Valid Issuance. Subject to Section 1.5(b), the SST Common Stock to be
issued in the Transaction will, when issued in accordance with the provisions of
this Agreement, be validly issued, fully paid and nonassessable. Assuming the
accuracy of the representations and warranties set forth in the Shareholder
Representation Letters referred to in Section 1.3, the issuance of SST Common
Stock in the Transaction will be made in accordance with all applicable
securities laws.
3.4 Organization, Standing and Power. SST is a corporation duly organized,
validly existing and in good standing under the laws of its state of
incorporation, and has all requisite right, power and authority to enter into
this Agreement and to consummate the transactions contemplated hereby.
3.5 No Violation or Conflict. The execution, delivery and performance of
this Agreement by SST and the consummation by it of the transactions
contemplated hereby, and compliance by SST with the provisions hereof (i) do not
and will not violate or conflict with any Legal Requirement, or any term or
provision of the Articles of Incorporation or Bylaws of SST and (ii) do not and
will not, with or without the passage of time or the giving of notice, result in
the breach of, or constitute a default or require any consent under, or result
in the creation of any Encumbrance upon any property or assets of SST pursuant
to, any material instrument or agreement to which SST is a party or by which SST
or any of its respective properties may be bound or affected.
3.6 Consent or Approval of Governmental Authorities. Except as contemplated
by this Agreement (including Section 1.3), no consent, approval or authorization
of, or registration, qualification, designation, declaration or filing with, any
Governmental Body is required to be made by SST in connection with the
execution, delivery or performance by SST of this Agreement or any agreement,
instrument or document contemplated hereby or the consummation by SST of the
transactions contemplated hereby and thereby.
3.7 Full Disclosure. No representation or warranty of SST herein (including
the exhibits and schedules hereto), and no certificate or affidavit furnished or
to be furnished by or on behalf of SST to the Company or the Shareholders or the
Shareholders' Representatives, contains or will, at the time it is made, contain
any untrue statement of a material fact or omits or will, at the time it is
made, omit to state a material fact necessary in order to make the statements
contained herein or therein not misleading, in light of the circumstances under
which they were made.
Section 4. INDEMNIFICATION, ETC.
4.1 Survival of Representations, Etc.
(a) Subject to Sections 4.1(b), 4.1(c) and 4.1(d), the
representations, warranties, covenants and obligations of the Company shall
survive (without limitation): (i) the consummation of the transactions
referred to in Section 1; (ii) any sale or other disposition of any or all
of the shares of Company Capital Stock; and (iii) any merger, combination,
recapitalization or similar transaction effected by or otherwise involving
SST or the Company.
23.
(b) Subject to Sections 4.1(c) and 4.1(d), the representations and
warranties made by the Company in this Agreement (including the
representations and warranties set forth in Section 2) shall survive the
Closing and shall expire on the first anniversary of the Closing Date;
provided, however, that if, at any time prior to the first anniversary of
the Closing Date, any Indemnitee (acting in good faith) delivers to the
Shareholders' Representative (as defined in Section 4.9(a)) a written
notice alleging the existence of a Breach of any of such representations
and warranties and asserting a claim for recovery under Section 4.2 based
on such Breach, then the claim asserted in such notice shall survive the
first anniversary of the Closing Date until such time as such claim is
fully and finally resolved.
(c) Subject to Section 4.1(d), the representations and warranties made
by the Company in Section 2.14 shall survive the Closing for the applicable
statute of limitations; provided, however, that if, at any time prior to
the expiration of the applicable statute of limitations, any Indemnitee
(acting in good faith) delivers to the Shareholders' Representative a
written notice alleging the existence of a Breach of any of such
representations and warranties and asserting a claim for recovery under
Section 4.2 based on such Breach, then the claim asserted in such notice
shall survive until such time as such claim is fully and finally resolved.
(d) Notwithstanding anything to the contrary contained in Section
4.1(b) or 4.1(c) (and without limiting the generality of anything contained
in Section 4.1(a)), no limitations on survival of any representations or
warranties of the Company shall apply in the case of fraud committed by the
Company.
(e) The representations, warranties, covenants and obligations of the
Company, and the rights and remedies that may be exercised by the
Indemnitees, shall not be limited or otherwise affected by or as a result
of any information furnished to, or any investigation made by or knowledge
of, any of the Indemnitees or any of their Representatives.
(f) For purposes of this Agreement, each statement or other item of
information set forth in the Disclosure Schedule or in any update to the
Disclosure Schedule shall be deemed to be a representation and warranty
made by the Company in this Agreement.
(g) All representations and warranties made by SST shall terminate and
expire as of the Closing, and any liability of SST with respect to such
representations and warranties shall thereupon cease; provided, however,
that notwithstanding the foregoing, the representations and warranties made
by SST in Section 3 shall survive the Closing and shall expire on the first
anniversary of the Closing Date; and provided further, however, that if, at
any time prior to the first anniversary of the Closing Date, any
Shareholder (acting in good faith) delivers to SST a written notice
alleging the existence of a Breach of any of such representations and
warranties contained in Section 3 and asserting a claim for recovery under
Section 4.8 based on such alleged Breach, then the claim asserted in such
notice shall survive the first anniversary of the Closing Date until such
time as such claim is fully and finally resolved. Notwithstanding the
foregoing, no limitations on survival of any representations or warranties
of SST shall apply in the case of fraud committed by SST.
4.2 Indemnification by Shareholders.
24.
(a) Subject to Section 4.3, from and after the Closing, the
Shareholders, jointly and severally, shall hold harmless and indemnify each
of the Indemnitees from and against, and shall compensate and reimburse
each of the Indemnitees for, any Damages which are suffered or incurred by
any of the Indemnitees or to which any of the Indemnitees may otherwise
become subject (regardless of whether or not such Damages relate to any
third-party claim) and which arise from or as a direct or indirect result
of, or are directly or indirectly connected with: (i) any Breach of any
representation or warranty made by any of the Shareholders or the Company
in this Agreement, the Shareholder Representation Letters, the Purchaser
Questionnaire, the Registration Rights Agreement, and the Escrow Agreement
and any other certificates, documents, etc. delivered by the Company or
Selling Shareholder in connection with transaction; (ii) any Breach of any
representation, warranty, statement, information or provision contained in
the Disclosure Schedule; (iii) any Breach of any covenant or obligation
contained in Section 4 or Section 5.3 by any of the Shareholders or the
Company; (iv) any Liability to which the Company or any of the other
Indemnitees may be or may become subject, and any claim which may be
brought against the Company or any of the other Indemnitees; or (v) any
Legal Proceeding relating to any Breach, alleged Breach, Liability or
matter of the type referred to in clause "(i)," "(ii)," "(iii)" or "(iv)"
of this sentence.
(b) Nothing contained in this Section 4.2 or elsewhere in this
Agreement shall be deemed to limit any right or remedy of any Indemnitee
under the Shareholder Representation Letters, the Purchaser Questionnaires,
the Registration Rights Agreement and the Escrow Agreement delivered by any
Shareholder pursuant to this Agreement or under any of the other
agreements, documents and instruments referred to or contemplated by this
Agreement.
4.3 Threshold; Ceiling.
(a) Subject to Section 4.3(c), the Shareholders shall not be required
to make any indemnification payment pursuant to Section 4.2 until such time
as the total amount of all Damages (whenever suffered and whether arising
from a single Breach or from multiple Breaches of different representations
and warranties) exceeds $35,301 in the aggregate. (If the total amount of
such Damages exceeds $35,301 in the aggregate, then the Indemnitees shall
be entitled to be indemnified against and compensated and reimbursed for
the full amount of such Damages (and not merely the portion of such Damages
exceeding $35,301).
(b) Subject to Section 4.3(c), the shares of SST Common Stock being
held in escrow pursuant to the Escrow Agreement (adjusted as appropriate to
reflect any stock split, reverse stock split, stock dividend or similar
transaction effected by SST after the date hereof) shall be the
Indemnitees' exclusive remedy and recourse under Section 4.2. Subject to
Section 4.3(c), in no event shall the maximum aggregate amount of Damages
which the Indemnitees shall be entitled to be indemnified against and
compensated and reimbursed for (including expenses incurred pursuant to
Section 4.5) under Section 4.2 exceed shares of SST Common Stock having a
"Fair Market Value" (as such term is defined in the Escrow Agreement) of
$3,530,140.
(c) The limitations on the Shareholders indemnification obligations
that are set forth in Section 4.3(b) shall not apply to any Breach of any
of the representations and
25.
warranties set forth in Section 2.14. The limitations on the Shareholders
indemnification obligations that are set forth in Sections 4.3(a) and
4.3(b) shall not apply to fraud committed by any of the Shareholders or the
Company.
4.4 No Contribution. Each Shareholder waives, and acknowledges and agrees
that he shall not have and shall not exercise or assert (or attempt to exercise
or assert), any right of contribution, right of indemnity or other similar right
or remedy against the Company in connection with any Breach of any
representation, warranty, covenant or obligation set forth in this Agreement.
4.5 Defense of Third Party Claims. In the event of the assertion or
commencement by any Person of any claim or Legal Proceeding (whether against the
Company, against any other Indemnitee or against any other Person) with respect
to which any of the Shareholders may become obligated to indemnify, hold
harmless, pay, compensate or reimburse any Indemnitee pursuant to this Section
4, (i) SST, as soon as practicable after it receives written notice of any such
claim or Legal Proceeding, shall notify each Shareholder of such claim or Legal
Proceeding (it being understood that the failure to notify each Shareholder
shall not in any way limit the rights of the Indemnitees under this Agreement
unless such failure materially prejudices the defenses available to the
Shareholders), and (ii) SST shall have the right, at its election, to designate
the Shareholders to assume the defense of such claim or Legal Proceeding at the
sole expense of the Shareholders. If SST so elects to designate the Shareholders
to assume the defense of any such claim or Legal Proceeding:
(a) the Shareholders shall proceed to defend such claim or Legal
Proceeding in a diligent manner with counsel satisfactory to SST;
(b) SST shall make available to the Shareholders any documents and
materials in the possession of SST that may be necessary to the defense of
such claim or Legal Proceeding;
(c) the Shareholders shall keep SST informed of all material
developments and events relating to such claim or Legal Proceeding;
(d) SST shall have the right to participate in the defense of such
claim or Legal Proceeding;
(e) the Shareholders shall not settle, adjust or compromise such claim
or Legal Proceeding without the prior written consent of SST; and
(f) SST may at any time (notwithstanding the prior designation of the
Shareholders to assume the defense of such claim or Legal Proceeding)
assume the defense of such claim or Legal Proceeding if (i) the
Shareholders shall fail to comply with any of its obligations under this
Section 4.5 (including its obligation to defend any claim or Legal
Proceeding in a diligent manner), or (ii) SST, after consultation with its
counsel, determines that the control of the defense by the Shareholders
would give rise to a conflict of interest or would otherwise be
inappropriate in such claim or Legal Proceeding.
26.
If SST does not elect to designate the Shareholders to assume the defense
of any such claim or Legal Proceeding (or if, after initially designating the
Shareholders to assume such defense, SST elects to assume such defense), SST may
proceed with the defense of such claim or Legal Proceeding on its own. If SST so
proceeds with the defense of any such claim or Legal Proceeding on its own:
(i) all expenses relating to the defense of such claim or Legal
Proceeding (whether or not incurred by SST) shall be borne and paid
exclusively by the Shareholders (subject to the limitations of Section
4.3);
(ii) the Shareholders shall make available to SST any documents
and materials in the possession or control of any of the Shareholders
that may be necessary to the defense of such claim or Legal
Proceeding;
(iii) SST shall keep the Shareholders informed of all material
developments and events relating to such claim or Legal Proceeding;
and
(iv) SST shall have the right to settle, adjust or compromise
such claim or Legal Proceeding with the consent of the Shareholders;
provided, however, that the Shareholders shall not unreasonably
withhold such consent.
4.6 Exercise of Remedies by Indemnitees Other Than SST. No Indemnitee
(other than SST or any successor thereto or assign thereof) shall be permitted
to assert any indemnification claim or exercise any other remedy under this
Agreement unless SST (or any successor thereto or assign thereof) shall have
consented to the assertion of such indemnification claim or the exercise of such
other remedy.
4.7 General Release.
(a) As a material inducement for SST to enter into this Agreement,
each Shareholder hereby unconditionally and irrevocably releases and
forever discharges, as of the Closing Date, the Company and SST from any
and all rights, claims, demands, judgments, obligations, liabilities and
damages, whether accrued or unaccrued, asserted or unasserted, and whether
known or unknown, suspected or unsuspected, relating to such Shareholder's
status as a shareholder, director, officer or employee of the Company (or
otherwise relating to the Company or its business) which ever existed, now
exist, or may hereafter exist, by reason of any tort, breach of contract,
violation of law or other act or failure to act which shall have occurred
at or prior to the Closing Date. Each Shareholder expressly intends that
the foregoing release shall be effective regardless of whether the basis
for any claim or right hereby released shall have been known to or
anticipated by him. Notwithstanding the foregoing, nothing contained in
this Section 4.7 will have any effect on (i) a Shareholder's claim accruing
against SST under this Agreement or under any other agreement entered into
by SST in connection with the transactions contemplated hereby, (ii) a
Shareholder's right to indemnification (whether statutory or otherwise) as
an officer or director of Company provided that (A) the Shareholder has met
any applicable standard of conduct to qualify for such indemnification and
(B) the basis of a lawsuit against such officer or director does not
otherwise constitute a Breach of any of the
27.
representations and warranties made by or covenants to be performed by the
Company or the Shareholders in this Agreement, or (iii) a Shareholder's
right to compensation and benefits earned or accrued by the Shareholder as
an employee or officer of the Company to the extent disclosed in the
Disclosure Schedule, incurred in the ordinary course of business consistent
with past practice or properly accounted for in the Financial Statements.
(b) Each Shareholder (a) represents, warrants and acknowledges that
the Shareholder has been fully advised by his attorney of the contents of
Section 1542 of the Civil Code of the State of California, and (b) hereby
expressly waives the benefits thereof and any rights such Shareholder may
have thereunder. Section 1542 of the Civil Code of the State of California
provides as follows:
"A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor."
Each Shareholder also hereby waives the benefits of, and any rights such
Shareholder may have under, any statute or common law principle of similar
effect in any jurisdiction.
4.8 Indemnification by SST. SST shall hold harmless and indemnify each of
the Shareholders from and against, and shall compensate and reimburse each of
the Shareholders for, any Damages which are suffered or incurred by any of the
Shareholders or to which any of the Shareholders may otherwise become subject
(regardless of whether or not such Damages relate to any third-party claim) and
which arise from or as a direct or indirect result of, or are directly or
indirectly connected with (i) any Breach of any representation or warranty made
by SST in Section 3 of this Agreement, (ii) any Breach of any covenant or
obligation of SST set forth in this Agreement, and (iii) any Legal Proceeding
relating to any Breach, alleged Breach, Liability or matter of the type referred
to in clause "(i)" and "(ii)" of this sentence.
4.9 Shareholders' Representative.
(a) The Shareholders hereby irrevocably nominate, constitute and
appoint Xxxx Xxx as the Shareholders' Representative and true and lawful
attorney-in-fact of the Shareholders (the "Shareholders' Representative"),
with full power of substitution, to act in the name, place and stead of the
Shareholders for purposes of executing any documents and taking any actions
that the Shareholders' Representative may, in her sole discretion,
determine to be necessary, desirable or appropriate in connection with any
the Transactions. Xxxx Xxx hereby accepts his appointment as Shareholders'
Representative.
(b) The Shareholders hereby grant to the Shareholders' Representative
full authority to execute, deliver, acknowledge, certify and file on behalf
of the Shareholders (in the name of any or all of the Shareholders or
otherwise) any and all documents that the Shareholders' Representative may,
in her sole discretion, determine to be necessary, desirable or
appropriate, in such forms and containing such provisions as the
Shareholders' Representative may, in her sole
28.
discretion, determine to be appropriate. Notwithstanding anything to the
contrary contained in this Agreement:
(i) SST and the Escrow Agent shall be entitled to deal
exclusively with the Shareholders' Representative on all matters
relating to this Agreement and the respective Transaction (including
all matters relating to any notice to, or any Consent to be given or
action to be taken by, any Shareholder); and
(ii) each Indemnitee shall be entitled to rely conclusively
(without further evidence of any kind whatsoever) on any document
executed or purported to be executed on behalf of any Shareholder by
the Shareholders' Representative, and on any other action taken or
purported to be taken on behalf of any Shareholder by the
Shareholders' Representative, as fully binding upon such Shareholder.
(c) The Shareholders recognize and intend that the power of attorney
granted in Section 4.9(a):
(i) is coupled with an interest and is irrevocable;
(ii) may be delegated by the Shareholders' Representative; and
(iii) shall survive the death or incapacity of each of the
Shareholders.
(d) The Shareholders' Representative shall be entitled to treat as
genuine, and as the document it purports to be, any letter, facsimile,
telex or other document that is believed by her to be genuine and to have
been telexed, telegraphed, faxed or cabled by a Shareholder or to have been
signed and presented by a Shareholder.
(e) If the Shareholders' Representative shall die, become disabled or
otherwise be unable to fulfill her responsibilities hereunder, the
Shareholders shall, within ten (10) days after such death or disability,
appoint a successor to the Shareholders' Representative and immediately
thereafter notify the Purchaser of the identity of such successor. Any such
successor shall succeed the Shareholders' Representative as Shareholders'
Representative hereunder. If for any reason there is no Shareholders'
Representative at any time, all references herein to the Shareholders'
Representative shall be deemed to refer to the Shareholders.
(f) All expenses incurred by the Shareholders' Representative in
connection with the performance of his duties as Shareholders'
Representative shall be borne and paid by the Shareholders.
Section 5. MISCELLANEOUS PROVISIONS.
5.1 Further Assurances. Each party hereto shall execute and cause to be
delivered to each other party hereto such instruments and other documents, and
shall take such other actions, as such other party may reasonably request (at or
after the date hereof) for the purpose of carrying out or evidencing any of the
transactions contemplated by this Agreement.
29.
5.2 Fees and Expenses. Subject to Section 4, each party to this Agreement
shall bear and pay all fees, costs and expenses (including legal fees and
accounting fees) that have been incurred or that are incurred in the future by
such party in connection with the transactions contemplated by this Agreement,
including all fees, costs and expenses incurred by such party in connection with
or by virtue of (a) the negotiation, preparation and review of this Agreement
(including the Disclosure Schedule) and all agreements, certificates, opinions
and other instruments and documents delivered or to be delivered in connection
with the transactions contemplated by this Agreement, (b) the preparation and
submission of any filing or notice required to be made or given in connection
with any of the transactions contemplated by this Agreement, and the obtaining
of any Consent required to be obtained in connection with any of such
transactions, and (c) the consummation of the Transaction.
5.3 Attorneys' Fees. If any action or proceeding relating to this Agreement
or the enforcement of any provision of this Agreement is brought against any
party hereto, the prevailing party shall be entitled to recover reasonable
attorneys' fees, costs and disbursements (in addition to any other relief to
which the prevailing party may be entitled).
5.4 Notices. Any notice or other communication required or permitted to be
delivered to any party under this Agreement shall be in writing and shall be
deemed properly delivered, given and received (a) when delivered by hand, or (b)
the first business day after sent by registered mail, by courier or express
delivery service or by facsimile, in any case to the address or facsimile
telephone number set forth beneath the name of such party below (or to such
other address or facsimile telephone number as such party shall have specified
in a written notice given to the other parties hereto):
if to SST:
Silicon Storage Technology, Inc.
0000 Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx Godward LLP
3000 El Camino Real
Five Xxxx Xxxx Xxxxxx
Xxxx Xxxx, XX 00000-0000
Attention: Xxxx X. Xxxxxxx
Facsimile: (000) 000-0000
if to the Shareholders' Representative:
Xxxx Xxx
0000 X. Xxxxx Xxxxxx, Xxxxx X
00.
Xxxxxxxxx, XX 00000
if to the Company:
Linvex Technology, Corp.
0000 X. Xxxxx Xxxxxx, Xxxxx X
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxx
Facsimile: (000) 000-0000
5.5 Confidentiality. On and at all times after the Closing Date (a) each
Shareholder shall keep confidential, and shall not use or disclose to any other
Person, any non-public document or other non-public information in such
Shareholder's possession that relates to the business of the Company or SST, and
(b) each Shareholder shall continue to keep the terms of this Agreement and the
other agreements, documents and instruments referred to in or contemplated by
this Agreement strictly confidential; provided, however, that each Shareholder
may disclose the existence and terms of this Agreement and the other agreements,
documents and instruments referred to in or contemplated by this Agreement to
his attorneys and financial advisors.
5.6 Time of the Essence. Time is of the essence of this Agreement.
5.7 Headings. The bold-faced section headings contained in this Agreement
are for convenience of reference only, shall not be deemed to be a part of this
Agreement and shall not be referred to in connection with the construction or
interpretation of this Agreement.
5.8 Counterparts. This Agreement may be executed in several counterparts,
each of which shall constitute an original and all of which, when taken
together, shall constitute one agreement.
5.9 Governing Law; Venue.
(a) This Agreement shall be construed in accordance with, and governed
in all respects by, the internal laws of the State of California (without
giving effect to principles of conflicts of laws).
(b) Any legal action or other legal proceeding relating to this
Agreement or the enforcement of any provision of this Agreement may be
brought or otherwise commenced in any state or federal court located in the
County of Santa Xxxxx, State of California. Each party to this Agreement:
(i) expressly and irrevocably consents and submits to the
jurisdiction of each state and federal court located in the County of
Santa Xxxxx, State of California (and each appellate court located in
the County of Santa Xxxxx, State of California) in connection with any
such legal proceeding;
31.
(ii) agrees that each state and federal court located in the
County of Santa Xxxxx, State of California shall be deemed to be a
convenient forum; and
(iii) agrees not to assert (by way of motion, as a defense or
otherwise), in any such legal proceeding commenced in any state or
federal court located in the County of Santa Xxxxx, State of
California, any claim that such party is not subject personally to the
jurisdiction of such court, that such legal proceeding has been
brought in an inconvenient forum, that the venue of such proceeding is
improper or that this Agreement or the subject matter of this
Agreement may not be enforced in or by such court.
(c) Nothing contained in Section 5.10(b) shall be deemed to limit or
otherwise affect the right of any Indemnitee to commence any legal
proceeding or otherwise proceed against any of the Shareholders in any
other forum or jurisdiction.
5.10 Successors and Assigns. This Agreement shall be binding upon: the
Company and its successors and assigns (if any); the Shareholders and their
respective personal representatives, executors, administrators, estates, heirs,
successors and assigns (if any); SST and its successors and assigns (if any).
This Agreement shall inure to the benefit of: the Company; the Shareholders;
SST; the other Indemnitees (subject to Section 4.6); and the respective
successors and assigns (if any) of the foregoing. Any Indemnitee may freely
assign any or all of its rights under this Agreement (including its
indemnification rights under Section 4), in whole or in part, to any other
Person without obtaining the consent or approval of any other party hereto or of
any other Person.
5.11 Remedies Cumulative; Specific Performance. The rights and remedies of
the parties hereto shall be cumulative (and not alternative). The parties to
this Agreement agree that, in the event of any breach or threatened breach by
any party to this Agreement of any covenant, obligation or other provision set
forth in this Agreement for the benefit of any other party to this Agreement,
such other party shall be entitled (in addition to any other remedy that may be
available to it) to (a) a decree or order of specific performance or mandamus to
enforce the observance and performance of such covenant, obligation or other
provision, and (b) an injunction restraining such breach or threatened breach.
Neither SST nor any other Indemnitee shall be required to provide any bond or
other security in connection with any such decree, order or injunction or in
connection with any related action or Legal Proceeding.
5.12 Waiver.
(a) No failure on the part of any Person to exercise any power, right,
privilege or remedy under this Agreement, and no delay on the part of any
Person in exercising any power, right, privilege or remedy under this
Agreement, shall operate as a waiver of such power, right, privilege or
remedy; and no single or partial exercise of any such power, right,
privilege or remedy shall preclude any other or further exercise thereof or
of any other power, right, privilege or remedy.
(b) No Person shall be deemed to have waived any claim arising out of
this Agreement, or any power, right, privilege or remedy under this
Agreement, unless the waiver of
32.
such claim, power, right, privilege or remedy is expressly set forth in a
written instrument duly executed and delivered on behalf of such Person;
and any such waiver shall not be applicable or have any effect except in
the specific instance in which it is given.
5.13 Amendments. This Agreement may not be amended, modified, altered or
supplemented other than by means of a written instrument duly executed and
delivered on behalf of all of the parties hereto.
5.14 Severability. In the event that any provision of this Agreement, or
the application of any such provision to any Person or set of circumstances,
shall be determined to be invalid, unlawful, void or unenforceable to any
extent, the remainder of this Agreement, and the application of such provision
to Persons or circumstances other than those as to which it is determined to be
invalid, unlawful, void or unenforceable, shall not be impaired or otherwise
affected and shall continue to be valid and enforceable to the fullest extent
permitted by law.
5.15 Parties in Interest. Except for the provisions of Section 4, none of
the provisions of this Agreement is intended to provide any rights or remedies
to any Person other than the parties hereto and their respective successors and
assigns (if any).
5.16 Entire Agreement. This Agreement and the other agreements referred to
herein set forth the entire understanding of the parties hereto relating to the
subject matter hereof and thereof and supersede all prior agreements and
understandings among or between any of the parties relating to the subject
matter hereof and thereof.
5.17 Construction.
(a) For purposes of this Agreement, whenever the context requires: the
singular number shall include the plural, and vice versa; the masculine
gender shall include the feminine and neuter genders; the feminine gender
shall include the masculine and neuter genders; and the neuter gender shall
include the masculine and feminine genders.
(b) The parties hereto agree that any rule of construction to the
effect that ambiguities are to be resolved against the drafting party shall
not be applied in the construction or interpretation of this Agreement.
(c) As used in this Agreement, the words "include" and "including,"
and variations thereof, shall not be deemed to be terms of limitation, but
rather shall be deemed to be followed by the words "without limitation."
(d) Except as otherwise indicated, all references in this Agreement to
"Sections" and "Exhibits" are intended to refer to Sections of this
Agreement and Exhibits to this Agreement.
33.
The parties hereto have caused this Agreement to be executed and delivered
as of the date first written above.
SILICON STORAGE TECHNOLOGY, INC. LINVEX TECHNOLOGY, CORP.
By:/s/ Bing Yeh By: /s/ Xxxx Xxx
------------------------------------- -------------------------------
Bing Yeh Xxxx Xxx
President and Chief Executive Officer President
STOCK PURCHASE AGREEMENT
SIGNATURE PAGE
EXHIBIT A
SHAREHOLDERS
Shares of Series A Shares of Series B
Name and Address Shares of Common Stock Preferred Preferred
------------------------------------- ---------------------- ------------------ ------------------
Xxxxx X. Xxxxx 3,125 -- --
00000 Xxxx Xxxxxxx
Xxxxxxx, XX 00000
Xxxxx Xxxx 8,000 -- --
000 Xxxx Xxxx
Xxxxxxxxx, XX 00000
Ying Go 50,000 -- --
0000 Xxxxxx Xx.
Xxxx Xxxx, XX 00000
Xxxx X. Xxx 2,020,000 6,667 25,000
00000 Xxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Xxxxx X. Xxxxx 1,557,500 26,667 25,000
00000 0xx Xxxxxx, #00
Xxxxxxxx, XX 00000
LTC Enterprise, Inc. 875,000 -- --
c/o Linvex Technology, Corp.
0000 X. Xxxxx Xxxxxx, Xxxxx X
Xxxxxxxxx, XX 00000
Multi-Product Research, Inc. 30,000 -- --
000 Xxxx Xxxx
Xxx Xxxxx, XX 00000
Xxxxxxx Tsim and Xxxxxx X. Tsim, -- 35,000 --
Co-trustees of the Xxxxxxx Tsim and
Xxxxxx X. Tsim Revocable Trust,
UT 11/12/95
000 Xxxxxx Xxx
Xxxxxxxxx, XX 00000-0000
Xxxxxxx Xxxxxxx 31,250 33,334 --
0000 Xxxxxx Xxxxxx
Xxxx Xxxx, XX 00000-0000
A-1.
Shares of Series A Shares of Series B
Name and Address Shares of Common Stock Preferred Preferred
------------------------------------- ---------------------- ------------------ ------------------
Xxxx X. Xxxx -- 20,000 12,500
00000 Xxxxxx Xx.
Xxx Xxxxx Xxxxx, XX 00000
Xxxxx X. Xxxxxxxx 50,000 20,000 25,000
000 Xxxx Xxxx
Xxx Xxxxx, XX 00000
S.C. Tsui 192,500 10,000 --
c/o Western Trading Co., Ltd.
RM 509, Xxx Xxxxx Xxxxx
00 Xxx Xxxxx Xxxx
Xxxxxxx, Xxxx Xxxx
Muneyoshi Samejima -- 6,667 --
c/o Nihon Synopsis Co., Ltd.
24F Shinjuku Mitsui Xxxx.
0-0-0 Xxxxx Xxxxxxxx, Xxxxxxxx,Xx,
Xxxxx 000, Xxxxx
Xxxxxx Xxxx -- -- 115,000
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Xxxxxxx Xxxxxxx and Xxxxxx -- -- 10,000
Xxxxxxx, Trustees, The Xxxxxx X.
Xxxxx 1996 Trust
0000 Xxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Xxxxxxx X. Xxxxxx, a married -- -- 10,000
woman as her separate property
0000 Xxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Xxxxxx X. Xxxxxx -- -- 10,000
000 Xxxxxxxxxx
Xxxxxxx Xxxx, XX 00000
Asnat and Xxx Xxxx -- -- 15,000
00 Xxxxxxx Xxx
Xxxxxxxx, Xxxxxxxx, Xxxxxx
X0X0X0
A-2.
Shares of Series A Shares of Series B
Name and Address Shares of Common Stock Preferred Preferred
------------------------------------- ---------------------- ------------------ ------------------
Xxxxxx Xxxxxxxxx -- -- 50,000
c/o Eastlake Securities, Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Xxxx X. Xxx -- -- 15,000
c/o All Quality & Services Inc.
0000 X. Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxx Tsim -- -- 50,000
000 Xxxxxx Xxx
Xxxxxxxxx, XX 00000
Xxxxx Xxxxx -- -- 15,000
0000 Xxxxxxx Xxxxxx, Xxx. 000
Xxx Xxxxxxxxx, XX 00000
Chu Xxxx Xxx 5,000 -- 25,000
00 Xxxxx Xxxxxx
Xxxxxxxxx 000000
Xxxxxxx Xxxxx 30,000 -- 10,000
00000 Xxxxxx Xxxxxx Xxxx,
Xxxx 000
Xxxxxxxxx, XX 00000
Xxxx X. Xxxxxx and M. Xxxxxx -- -- 12,500
Xxxxxx, Trustees, FBO X.X. and X.X. Xxxxxx
Living Trust
Dated 1-08-80
0000 Xxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Xxxx S.C. Liu 15,000 -- 23,380
0000 Xxxxxxxx Xxxxx Xxxxx
Xxx Xxxx, XX 00000
Xxxx Xxx -- -- 25,000
00000 Xxxx Xxxxx
Xxxxxxxxx, XX 00000-0000
A-3.
Shares of Series A Shares of Series B
Name and Address Shares of Common Stock Preferred Preferred
------------------------------------- ---------------------- ------------------ ------------------
Xxxx Xxxxxx -- -- 5,000
0000 Xxxxx Xx.
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
Xxxxxx X0X0X0
Xxxxxxx Xxxx -- -- 150,000
x/x Xxxxxxxxxxx Xxxx.
0X, #00 Xxx. 0
Xxx Xxx Xxxxx Xx.
Xxxxxx, Xxxxxx, X.X.X.
Xxxxx Xxx 8,000 -- --
c/o Linvex Technology Corp.
0000 X. Xxxxx Xxxxxx, Xxxxx X
Xxxxxxxxx, XX 00000
Xxxxxxxx Xxxx 1,000 -- --
c/o Linvex Technology Corp.
0000 X. Xxxxx Xxxxxx, Xxxxx X
Xxxxxxxxx, XX 00000
Xxxxxx Xx 7,250 -- --
c/o Linvex Technology Corp.
0000 X. Xxxxx Xxxxxx, Xxxxx X
Xxxxxxxxx, XX 00000
Lo-Xxxx Xxx 21,000 -- --
c/o Linvex Technology Corp.
0000 X. Xxxxx Xxxxxx, Xxxxx X
Xxxxxxxxx, XX 00000
Xxx Xxxxx 1,000 -- --
c/o Linvex Technology Corp.
0000 X. Xxxxx Xxxxxx, Xxxxx X
Xxxxxxxxx, XX 00000
Charlies Liao 1,000 -- --
c/o Linvex Technology Corp.
0000 X. Xxxxx Xxxxxx, Xxxxx X
Xxxxxxxxx, XX 00000
A-4.
Shares of Series A Shares of Series B
Name and Address Shares of Common Stock Preferred Preferred
------------------------------------- ---------------------- ------------------ ------------------
Xxxxxx X. Xxxxxxxx 18,750 -- --
0000 Xxxxxxxxx Xxx. #000
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxx 2,500 -- --
c/o Linvex Technology Corp.
0000 X. Xxxxx Xxxxxx, Xxxxx X
Xxxxxxxxx, XX 00000
Jiun-Xxxxx Xxx 5,000 -- --
c/o Linvex Technology Corp.
0000 X. Xxxxx Xxxxxx, Xxxxx X
Xxxxxxxxx, XX 00000
Yun-Xxxxx Xxxxx 93,750 -- --
c/o Linvex Technology Corp.
0000 X. Xxxxx Xxxxxx, Xxxxx X
Xxxxxxxxx, XX 00000
Xxxxxxx Xxxxx-Xxx Xxx 75,000 -- --
c/o Linvex Technology Corp.
0000 X. Xxxxx Xxxxxx, Xxxxx X
Xxxxxxxxx, XX 00000x
Xxxx Xxxx 25,000 -- --
c/o Linvex Technology Corp.
0000 X. Xxxxx Xxxxxx, Xxxxx X
Xxxxxxxxx, XX 00000
Xxxxxx Xxxxx 9,375 -- --
c/o Linvex Technology Corp.
0000 X. Xxxxx Xxxxxx, Xxxxx X
Xxxxxxxxx, XX 00000
Xxxxx Xx 2,500 -- --
c/o Linvex Technology Corp.
0000 X. Xxxxx Xxxxxx, Xxxxx X
Xxxxxxxxx, XX 00000
Best Trend Limited 10,000 -- --
c/o Linvex Technology Corp.
0000 X. Xxxxx Xxxxxx, Xxxxx X
Xxxxxxxxx, XX 00000
A-5.
Shares of Series A Shares of Series B
Name and Address Shares of Common Stock Preferred Preferred
------------------------------------- ---------------------- ------------------ ------------------
Ing-Hong Chen 9,375 -- --
c/o Linvex Technology Corp.
0000 X. Xxxxx Xxxxxx, Xxxxx X
Xxxxxxxxx, XX 00000
Chi Xxx Xxx 170,625 -- --
c/o Linvex Technology Corp.
0000 X. Xxxxx Xxxxxx, Xxxxx X
Xxxxxxxxx, XX 00000
Xxxxxx Sai Xxx Xxx 10,000 -- --
c/o Linvex Technology Corp.
0000 X. Xxxxx Xxxxxx, Xxxxx X
Xxxxxxxxx, XX 00000
Xxxxx Xx Nam 10,000 -- --
c/o Linvex Technology Corp.
0000 X. Xxxxx Xxxxxx, Xxxxx X
Xxxxxxxxx, XX 00000
TOTAL 5,348,500 158,335 628,380
A-6.
EXHIBIT B
CERTAIN DEFINITIONS
For purposes of the Agreement (including this Exhibit B):
Agreement. "Agreement" shall mean the Stock Purchase Agreement to which
this Exhibit B is attached (including the Disclosure Schedule), as it may be
amended from time to time.
Breach. There shall be deemed to be a "Breach" of a representation,
warranty, covenant, obligation or other provision if there is or has been (i)
any inaccuracy in or breach of, or any failure to comply with or perform, such
representation, warranty, covenant, obligation or other provision, or (ii) any
claim (by any Person) or other circumstance that is inconsistent with such
representation, warranty, covenant, obligation or other provision; and the term
"Breach" shall be deemed to refer to any such inaccuracy, breach, failure, claim
or circumstance.
Company Contract. "Company Contract" shall mean any Contract: (a) to which
the Company is a party; (b) by which the Company or any of its assets is or may
become bound or under which the Company has, or may become subject to, any
obligation; or (c) under which the Company has or may acquire any right or
interest.
Company Employee. "Company Employee" shall mean any Person who is employed
by the Company as of the date of this Agreement.
Company Proprietary Asset. "Company Proprietary Asset" shall mean any
Proprietary Asset owned by or licensed to the Company or otherwise used by the
Company.
Consent. "Consent" shall mean any approval, consent, ratification,
permission, waiver or authorization (including any Governmental Authorization).
Contract. "Contract" shall mean any written, oral or other agreement,
contract, subcontract, lease, understanding, instrument, note, warranty,
insurance policy, benefit plan, or legally binding commitment or undertaking of
any nature.
Damages. "Damages" shall include any loss, damage, injury, decline in
value, lost opportunity, Liability, claim, demand, settlement, judgment, award,
fine, penalty, Tax, fee (including reasonable attorneys' fees), charge, cost
(including costs of investigation) or expense of any nature.
Disclosure Schedule. "Disclosure Schedule" shall mean the schedule (dated
as of the date of the Agreement) delivered to SST on behalf of the Company.
Employee Benefit Plan. "Employee Benefit Plan" shall have the meaning
specified in Section 3(3) of ERISA.
B-1.
Encumbrance. "Encumbrance" shall mean any lien, pledge, hypothecation,
charge, mortgage, security interest, encumbrance, claim, infringement,
interference, option, right of first refusal, preemptive right, community
property interest or restriction of any nature (including any restriction on the
voting of any security, any restriction on the transfer of any security or other
asset, any restriction on the receipt of any income derived from any asset, any
restriction on the use of any asset and any restriction on the possession,
exercise or transfer of any other attribute of ownership of any asset).
Entity. "Entity" shall mean any corporation (including any non-profit
corporation), general partnership, limited partnership, limited liability
partnership, joint venture, estate, trust, company (including any limited
liability company or joint stock company), firm or other enterprise,
association, organization or entity.
Exchange Act. "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
Governmental Authorization. "Governmental Authorization" shall mean any:
(a) permit, license, certificate, franchise, permission, clearance,
registration, qualification or authorization issued, granted, given or otherwise
made available by or under the authority of any Governmental Body or pursuant to
any Legal Requirement; or (b) right under any Contract with any Governmental
Body.
Governmental Body. "Governmental Body" shall mean any: (a) nation, state,
commonwealth, province, territory, county, municipality, district or other
jurisdiction of any nature; (b) federal, state, local, municipal, foreign or
other government; or (c) governmental or quasi-governmental authority of any
nature (including any governmental division, department, agency, commission,
instrumentality, official, organization, unit, body or Entity and any court or
other tribunal).
Knowledge. An individual shall be deemed to have "Knowledge" of a
particular fact or other matter if: such individual is actually aware of such
fact or other matter (which shall be deemed to include (i) facts that the
individual has learned; (ii) facts that in the ordinary course of the Company's
business have been reported to the individual; and (iii) facts that are
ordinarily maintained as part of the individual's business files (both computer
and hard files). The Company shall be deemed to have "Knowledge" of a particular
fact or other matter if any officer or employee of the Company has Knowledge of
such fact or other matter.
Indemnitees. "Indemnitees" shall mean the following Persons: (a) SST; (b)
SST's current and future affiliates; (c) the respective Representatives of the
Persons referred to in clauses "(a)" and "(b)" above; and (d) the respective
successors and assigns of the Persons referred to in clauses "(a)", "(b)" and
"(c)" above; provided, however, that the Shareholders shall not be deemed to be
"Indemnitees."
Legal Proceeding. "Legal Proceeding" shall mean any action, suit,
litigation, arbitration, proceeding (including any civil, criminal,
administrative, investigative or appellate proceeding),
B-2
hearing, inquiry, audit, examination or investigation commenced, brought,
conducted or heard by or before, or otherwise involving, any court or other
Governmental Body or any arbitrator or arbitration panel.
Legal Requirement. "Legal Requirement" shall mean any federal, state,
local, municipal, foreign or other law, statute, constitution, principle of
common law, resolution, ordinance, code, edict, decree, rule, regulation, ruling
or requirement issued, enacted, adopted, promulgated, implemented or otherwise
put into effect by or under the authority of any Governmental Body.
Liability. "Liability" means any debt, obligation, duty or liability of any
nature (including any unknown, undisclosed, unmatured, unaccrued, unasserted,
contingent, indirect, conditional, implied, vicarious, derivative, joint,
several or secondary liability), regardless of whether such debt, obligation,
duty or liability would be required to be disclosed on a balance sheet prepared
in accordance with generally accepted accounting principles and regardless of
whether such debt, obligation, duty or liability is immediately due and payable.
Material Adverse Effect. A violation or other matter will be deemed to have
a "Material Adverse Effect" on the Company if such violation or other matter
(considered together with all other matters that would constitute exceptions to
the representations and warranties set forth in the Agreement but for the
presence of "Material Adverse Effect" or other materiality qualifications, or
any similar qualifications, in such representations and warranties) would have a
material adverse effect on the Company's business, condition, assets,
liabilities, operations, financial performance or prospects.
SST Common Stock. "SST Common Stock" shall mean the common stock, no par
value per share, of SST.
Person. "Person" shall mean any individual, Entity or Governmental Body.
Proprietary Asset. "Proprietary Asset" shall mean any: (a) patent, patent
application, trademark (whether registered or unregistered), trademark
application, trade name, fictitious business name, service xxxx (whether
registered or unregistered), service xxxx application, copyright (whether
registered or unregistered), copyright application, maskwork, maskwork
application, trade secret, know-how, customer list, franchise, system, computer
software, source code, computer program, invention, design, blueprint,
engineering drawing, proprietary product, technology, proprietary right or other
intellectual property right or intangible asset; or (b) right to use or exploit
any of the foregoing.
Representatives. "Representatives" shall mean officers, directors,
employees, Shareholders' Representatives, attorneys, accountants, advisors and
representatives.
SEC. "SEC" shall mean the United States Securities and Exchange Commission.
Securities Act. "Securities Act" shall mean the Securities Act of 1933, as
amended.
B-3
Tax. "Tax" shall mean any tax (including any income tax, franchise tax,
capital gains tax, gross receipts tax, value-added tax, surtax, excise tax, ad
valorem tax, transfer tax, stamp tax, sales tax, use tax, property tax, business
tax, withholding tax or payroll tax), levy, assessment, tariff, duty (including
any customs duty), deficiency or fee, and any related charge or amount
(including any fine, penalty or interest), imposed, assessed or collected by or
under the authority of any Governmental Body.
Tax Return. "Tax Return" shall mean any return (including any information
return), report, statement, declaration, estimate, schedule, notice,
notification, form, election, certificate or other document or information filed
with or submitted to, or required to be filed with or submitted to, any
Governmental Body in connection with the determination, assessment, collection
or payment of any Tax or in connection with the administration, implementation
or enforcement of or compliance with any Legal Requirement relating to any Tax.
B-4
