STOCK PURCHASE AGREEMENT
Exhibit
10.1
This
Stock Purchase Agreement ("Agreement") is made as of September 23, 2008,
by Home System Group ("Buyer"), and Asia Forever Investment
Limited, a Hong
Kong corporation (the "Company"), and Xxxxxx Xxxx and Xxxxxxxx
Xxxx ("Sellers").
RECITALS
Sellers desires to sell, and Buyer desires to purchase, all of the issued and
outstanding shares (the "Shares") of capital stock of the Company for
the consideration and on the terms set forth in this Agreement.
AGREEMENT
The
parties, intending to be legally bound, agree as follows:
1. DEFINITIONS
For
purposes of this Agreement, the following terms have the meanings specified or
referred to in this Section 1:
"Acquired
Companies"--the Company and its Subsidiaries.
"Best
Efforts"--the efforts that a prudent Person desirous of achieving a
result would use in similar circumstances to ensure that such result is achieved
as expeditiously as possible ; provided, however,
that an obligation to use Best Efforts under this Agreement does not require the
Person subject to that obligation to take actions that would result in a
materially adverse change in the benefits to such Person of this Agreement and
the Contemplated Transactions.
"Buyer"--as defined
in the first paragraph of this Agreement.
"Closing Date"--the
date and time as of which the Closing actually takes place.
"Company"--as defined
in the Recitals of this Agreement.
"Contemplated
Transactions"--all of the transactions contemplated by this Agreement,
including:
(a) the
sale of the Shares by Seller to Buyer;
(b) the
performance by Buyer and Seller of their respective covenants and obligations
under this Agreement; and
(c) Buyer's
acquisition and ownership of the Shares and exercise of control over the
Acquired Companies.
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"Encumbrance"--any
charge, claim, condition, equitable interest, lien, option, pledge, security
interest, right of first refusal, or restriction of any
kind.
"GAAP"--generally
accepted United States accounting principles, applied on a basis consistent
basis.
"Governmental
Authorization"--any approval, consent, license, permit, waiver, or other
authorization issued, granted, given, or otherwise made available by or under
the authority of any Governmental Body or pursuant to any Legal
Requirement.
"Governmental
Body"—any federal, state, local, municipal, or other government
exercising, or entitled to exercise, any administrative, executive, judicial,
legislative, police, regulatory, or taxing authority or power of any nature over
the parties or the Acquired Companies.
"Knowledge"--an
individual will be deemed to have "Knowledge" of a particular fact or other
matter if such individual is actually aware of such fact or other
matter. A Person (other than an individual) will be deemed to have
"Knowledge" of a particular fact or other matter if any individual who is
serving, or who has at any time served, as a director, officer, partner,
executor, or trustee of such Person (or in any similar capacity) has, or at any
time had, Knowledge of such fact or other matter.
"Legal
Requirement"--any federal, state, local, municipal, foreign,
international, multinational, or other administrative order, constitution, law,
ordinance, regulation, statute, or treaty.
"Order"--any award,
decision, injunction, judgment, order, ruling, subpoena, or verdict entered,
issued, made, or rendered by any court, administrative agency, or other
Governmental Body or by any arbitrator.
"Ordinary Course of
Business"--an action taken by a Person will be deemed to have been taken
in the "Ordinary Course of Business" only if:
(a) such
action is consistent with the past practices of such Person and is taken in the
ordinary course of the normal day-to-day operations of such Person;
and
(b) such
action is not required to be authorized by the board of directors of such Person
(or by any Person or group of Persons exercising similar
authority).
"Organizational
Documents"--(a) the articles or certificate of incorporation and the
bylaws of a corporation; (b) the partnership agreement and any statement of
partnership of a general partnership; (c) the limited partnership agreement
and the certificate of limited partnership of a limited partnership;
(d) any charter or similar document adopted or filed in connection with the
creation, formation, or organization of a Person; and (e) any amendment to
any of the foregoing.
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"Person"--any
individual, corporation (including any non-profit corporation), general or
limited partnership, limited liability company, joint venture, estate, trust,
association, organization, labor union, or other entity or Governmental
Body.
"Proceeding"--any
action, hearing, litigation, or suit commenced, brought, conducted, or heard by
or before, or otherwise involving, any Governmental Body.
"Representative"--with
respect to a particular Person, any director, officer, employee, agent,
consultant, advisor, or other representative of such Person, including legal
counsel, accountants, and financial advisors.
"Securities Act"--the
Securities Act of 1933 or any successor law, and regulations and rules issued
pursuant to that Act or any successor law.
"Subsidiary"--with
respect to any Person (the "Owner"), any corporation or other Person of which
securities or other interests having the power to elect a majority of that
corporation's or other Person's board of directors or similar governing body, or
otherwise having the power to direct the business and policies of that
corporation or other Person are held by the Owner or one or more of its
Subsidiaries; when used without reference to a particular Person, "Subsidiary"
means a Subsidiary of the Company.
"Threatened"--a
Proceeding will be deemed to have been "Threatened" if any demand or statement
has been made or any notice has been given.
2.
SALE AND TRANSFER OF SHARES; CLOSING
2.1 SHARES
Subject
to the terms and conditions of this Agreement, at the Closing, Seller will sell
and transfer the Shares to Buyer, and Buyer will purchase the Shares from
Seller.
2.2 PURCHASE
PRICE
The
purchase price (the "Purchase Price") for the Shares will be $ 00, 000, 000,
00 (xx 000 xxxxxxx
XXX).
2.3 CLOSING
The
purchase and sale (the "Closing") provided for in this Agreement will take place
at the offices of Buyer's counsel, at 10:00 a.m. (local time) as soon as the
conditions to closing are satisfied or at such other time and place as the
parties may agree. Subject to the provisions of Section 9, failure to consummate
the purchase and sale provided for in this Agreement on the date and time and at
the place determined pursuant to this Section 2.3 will not result in the
termination of this Agreement and will not relieve any party of any obligation
under this Agreement.
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2.4 CLOSING
OBLIGATIONS
At the
Closing:
(a) Seller
will deliver to Buyer:
(i) certificates
representing the Shares, duly endorsed (or accompanied by duly executed stock
powers), with signatures guaranteed by a commercial bank or by a member firm of
the New York Stock Exchange, for transfer to Buyer; and
(b) Buyer
will deliver to each Seller a note equal to ½ of the Purchase Price, payable as
follows:
The note
will have a maturity of 2 years and will bear no interest. Principal
will be repaid as follows: 25% payable on or before December 31,
2008, the remaining principal amount to be repaid in 3 semi-annual installments
with the final installment due on or before the maturity date.
3.
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller
represents and warrants to Buyer as follows:
3.1
ORGANIZATION AND GOOD STANDING
(a) Each
Acquired Company that is a corporation is duly organized, validly existing, and
in good standing under the laws of its jurisdiction of incorporation, with full
corporate power and authority to conduct its business as it is now being
conducted, to own or use the properties and assets that it purports to own or
use. Each Acquired Company is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each state or other
jurisdiction in which either the ownership or use of the properties owned or
used by it, or the nature of the activities conducted by it, requires such
qualification.
(b) Seller
has delivered to Buyer copies of the Organizational Documents of each Acquired
Company, as currently in effect.
3.2 AUTHORITY;
NO CONFLICT
(a) This
Agreement constitutes the legal, valid, and binding obligation of Seller,
enforceable against Seller in accordance with its terms. Seller has the absolute
and unrestricted right, power, authority, and capacity to execute and deliver
this Agreement and to perform its obligations under this Agreement.
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(b) Neither the
execution and delivery of this Agreement nor the consummation or performance of
any of the Contemplated Transactions will, directly or indirectly (with or
without notice or lapse of time):
(i) contravene,
conflict with, or result in a violation of (A) any provision of the
Organizational Documents of the Acquired Companies, or (B) any resolution
adopted by the board of directors or the stockholders of any Acquired
Company;
(ii) contravene,
conflict with, or result in a violation of, or give any Governmental Body or
other Person the right to challenge any of the Contemplated Transactions or to
exercise any remedy or obtain any relief under, any Legal Requirement or any
Order to which any Acquired Company or either Seller, or any of the assets owned
or used by any Acquired Company, may be subject;
(iii) 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 any
Acquired Company or that otherwise relates to the business of, or any of the
assets owned or used by, any Acquired Company;
(iv) contravene,
conflict with, or result in a violation or breach of any provision of, or give
any Person the right to declare a default or exercise any remedy under, or to
accelerate the maturity or performance of, or to cancel, terminate, or modify,
any material contract; or
(v) result
in the imposition or creation of any material Encumbrance upon or with respect
to any of the assets owned or used by any Acquired Company.
Neither
Seller nor any Acquired Company is or will be required to give any notice to or
obtain any consent from any Person in connection with the execution and delivery
of this Agreement or the consummation or performance of any of the Contemplated
Transactions.
3.3 CAPITALIZATION
Seller is
and will be on the Closing Date the record and beneficial owner and holder of
the Shares, free and clear of all Encumbrances. There are no
contracts relating to the issuance, sale, or transfer of any equity securities
or other securities of any Acquired Company. No Acquired Company owns, or has
any contract to acquire, any equity securities or other securities of any Person
(other than Acquired Companies) or any direct or indirect equity or ownership
interest in any other business.
3.4 FINANCIAL
STATEMENTS
Seller
has delivered to Buyer: (a) an [unaudited] consolidated balance sheet of
the Acquired Companies as at ____________(the "Balance Sheet"), and the related
[unaudited] consolidated statements of income, changes in stockholders' equity,
and cash flow for the fiscal period
then ended. Such financial statements and notes present the financial condition
and the results of operations, changes in stockholders' equity, and cash flow of
the Acquired Companies in accordance with GAAP, subject, in the case of interim
financial statements, to normal recurring year-end adjustments and the absence
of notes.
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3.5 BOOKS
AND RECORDS
The
minute books of the Acquired Companies contain accurate and complete records of
all meetings held of, and corporate action taken by, the stockholders, the
Boards of Directors, and committees of the Boards of Directors of the Acquired
Companies, and no meeting of any such stockholders, Board of Directors, or
committee has been held for which minutes have not been prepared and are not
contained in such minute books. At the Closing, all of those books and records
will be in the possession of the Acquired Companies.
3.6 TITLE
TO PROPERTIES; ENCUMBRANCES
The
Acquired Companies own all the properties and assets that they
purport to own, including all of the properties and assets reflected in the
Balance Sheet (except for assets held under capitalized leases and personal
property sold since the date of the Balance Sheet in the Ordinary Course of
Business).
3.7 CONDITION
AND SUFFICIENCY OF ASSETS
The
buildings, plants, structures, and equipment of the Acquired Companies are
adequate for the uses to which they are being put. The building, plants,
structures, and equipment of the Acquired Companies are sufficient for the
continued conduct of the Acquired Companies' businesses after the Closing in
substantially the same manner as conducted prior to the Closing.
3.8 ACCOUNTS
RECEIVABLE
All
accounts receivable of the Acquired Companies that are reflected on the Balance
Sheet (collectively, the "Accounts Receivable") represent or will represent
valid obligations arising from sales actually made or services actually
performed in the Ordinary Course of Business. There is no contest, claim, or
right of set-off, other than returns in the Ordinary Course of Business, under
any contract with any obligor of an Accounts Receivable relating to the amount
or validity of such Accounts Receivable.
3.9 INVENTORY
The
inventory of the Acquired Companies reflected in the Balance Sheet consists of
items of a quality and quantity consistent with the Ordinary Course of
Business. The quantities of items of inventory (whether raw
materials, work-in-process, or finished goods) are not excessive, but are
reasonable in the present circumstances of the Acquired Companies.
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3.10 RELATIONSHIPS
WITH RELATED PERSONS
Seller does not have any interest in any real or personal property, used in the
Acquired Companies' businesses. Seller is not a party to any contract with, or
has any claim or right against, any Acquired Company after Closing.
3.11 TAXES
(a) The
Acquired Companies have filed or caused to be filed all tax returns that are or
were required to be filed by or with respect to any of them pursuant to
applicable Legal Requirements. The Acquired Companies have paid, or made
provision for the payment of, all taxes that have become due pursuant to those
tax returns, or pursuant to any assessment received by Seller or any Acquired
Company, except such taxes, if any, as are being contested in good faith and as
to which adequate reserves (determined in accordance with GAAP) have been
provided in the Balance Sheet.
(b) Seller
has not given or been requested to give waivers or extensions of any statute of
limitations relating to the payment of taxes of any Acquired Company or for
which any Acquired Company may be liable.
(c) All
tax returns filed by any Acquired Company are true, correct, and complete. There
is no tax sharing agreement that will require any payment by any Acquired
Company after the date of this Agreement.
3.12 NO
MATERIAL ADVERSE CHANGE
Since the
date of the Balance Sheet, there has not been any material adverse change in the
business, operations, properties, assets, or condition of any Acquired Company,
and no event has occurred or circumstance exists that may result in such a
material adverse change.
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3.13
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COMPLIANCE
WITH LEGAL REQUIREMENTS; GOVERNMENTAL
AUTHORIZATIONS
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(a)
(i) each
Acquired Company is in full compliance with each Legal Requirement that is
applicable to it or to the conduct or operation of its business or the ownership
or use of any of its assets;
(ii) no
event has occurred or circumstance exists that (with or without notice or lapse
of time) (A) may constitute or result in a violation by any Acquired Company of,
or a failure on the part of any Acquired Company to comply with, any Legal
Requirement, or (B) may give rise to any obligation on the part of any Acquired
Company to undertake, or to bear all or any portion of the cost of, any remedial
action of any nature; and
(iii) no
Acquired Company has received any notice or other communication from any
Governmental Body or any other Person regarding (A) any actual, alleged,
possible, or potential violation of, or failure to comply with, any Legal
Requirement, or (B) any
alleged obligation on the part of any Acquired Company to undertake, or to bear
all or any portion of the cost of, any remedial action of any
nature.
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3.14 EMPLOYEES
No
employee of any Acquired Company is a party to, or is otherwise bound by, any
agreement or arrangement, including any confidentiality, noncompetition, or
proprietary rights agreement, between such employee and any other Person
("Proprietary Rights Agreement") that in any way adversely affects or will
affect (i) the performance of his duties as an employee of the Acquired
Companies, or (ii) the ability of any Acquired Company to conduct its business,
including any Proprietary Rights Agreement with Seller or the Acquired Companies
by any such employee or director. To Seller's Knowledge, no key
employee of any Acquired Company intends to terminate his employment with such
Acquired Company.
3.15 LEGAL
PROCEEDINGS; ORDERS
There is
no pending Proceeding:
(i) that
has been commenced by or against any Acquired Company or any of the assets owned
or used by, any Acquired Company; or
(ii) that
challenges any of the Contemplated Transactions.
3.16 ABSENCE
OF CERTAIN CHANGES AND EVENTS
Since the
date of the Balance Sheet, the Acquired Companies have conducted their
businesses only in the Ordinary Course of Business and there has not been
any:
(a) change
in any Acquired Company's authorized or issued capital stock; grant of any stock
option or right to purchase shares of capital stock of any Acquired Company;
issuance of any security convertible into such capital stock; grant of any
registration rights; purchase, redemption, retirement, or other acquisition by
any Acquired Company of any shares of any such capital stock; or declaration or
payment of any dividend or other distribution or payment in respect of shares of
capital stock;
(b) amendment
to the Organizational Documents of any Acquired Company;
(c) payment
or increase by any Acquired Company of any bonuses, salaries, or other
compensation to any stockholder, director, officer, or (except in the Ordinary
Course of Business) employee or entry into any employment, severance, or similar
contract with any director, officer, or employee; or
(d) sale
(other than sales of inventory in the Ordinary Course of Business), lease, or
other disposition of any material asset or property of any Acquired Company or
mortgage, pledge, or imposition of any lien or other encumbrance on any material
asset or property of any Acquired Company.
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3.17 CONTRACTS;
NO DEFAULTS
(i) Seller
does not have any rights under any contract that relates to the business of, or
any of the assets owned or used by, any Acquired Company; and
(ii) to
the Knowledge of Seller, no officer, agent, employee, consultant, or contractor
of any Acquired Company is bound by any contract that purports to limit the
ability of such officer, agent, employee, consultant, or contractor to (A)
engage in or continue any conduct, activity, or practice relating to the
business of any Acquired Company, or (B) assign to any Acquired Company or to
any other Person any rights to any invention, improvement, or
discovery.
3.18 BROKERS
OR FINDERS
Seller
has incurred no obligation or liability, contingent or otherwise, for brokerage
or finders' fees or agents' commissions or other similar payment in connection
with this Agreement.
4. REPRESENTATIONS
AND WARRANTIES OF BUYER
Buyer
represents and warrants to Seller as follows:
4.1 BROKERS
OR FINDERS
Buyer and
its officers and agents have incurred no obligation or liability, contingent or
otherwise, for brokerage or finders' fees or agents' commissions or other
similar payment in connection with this Agreement and will indemnify and hold
Seller harmless from any such payment alleged to be due by or through Buyer as a
result of the action of Buyer or its officers or agents.
5.
COVENANTS OF SELLER PRIOR TO CLOSING DATE
5.1 ACCESS
AND INVESTIGATION
Between
the date of this Agreement and the Closing Date, Seller will, and will cause
each Acquired Company and its Representatives to, (a) afford Buyer and its
Representatives and prospective lenders and their Representatives (collectively,
"Buyer's Advisors") reasonable access to each Acquired Company's personnel,
properties, contracts, books and records, and other documents and data, (b)
furnish Buyer and Buyer's Advisors with copies of all such contracts, books and
records, and other existing documents and data as Buyer may reasonably request,
and (c) furnish Buyer and Buyer's Advisors with such additional financial,
operating, and other data and information as Buyer may reasonably
request.
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5.2
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OPERATION
OF THE BUSINESSES OF THE ACQUIRED
COMPANIES
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Between
the date of this Agreement and the Closing Date, Seller will, and will cause
each Acquired Company to:
(a) conduct
the business of such Acquired Company only in the Ordinary Course of
Business;
(b) use
its Best Efforts to preserve intact the current business organization of such
Acquired Company, keep available the services of the current officers,
employees, and agents of such Acquired Company, and maintain the relations and
good will with suppliers, customers, landlords, creditors, employees, agents,
and others having business relationships with such Acquired
Company;
(c) confer
with Buyer concerning operational matters of a material nature; and
(d) otherwise
report periodically to Buyer concerning the status of the business, operations,
and finances of such Acquired Company.
5.3 REQUIRED
APPROVALS
As
promptly as practicable after the date of this Agreement, Seller will, and will
cause each Acquired Company to, make all filings required by Legal Requirements
to be made by them in order to consummate the Contemplated Transactions. Between
the date of this Agreement and the Closing Date, Seller will, and will cause
each Acquired Company to, (a) cooperate with Buyer with respect to all filings
that Buyer elects to make or is required by Legal Requirements to make in
connection with the Contemplated Transactions, and (b) cooperate with Buyer in
obtaining all consents.
5.5 BEST
EFFORTS
Between
the date of this Agreement and the Closing Date, Seller will use its Best
Efforts to cause the conditions in Sections 7 and 8 to be
satisfied.
6.
COVENANTS OF BUYER PRIOR TO CLOSING DATE
6.1 APPROVALS
OF GOVERNMENTAL BODIES
As
promptly as practicable after the date of this Agreement, Buyer will make all
filings required by Legal Requirements to be made by them to consummate the
Contemplated Transactions. Between the date of this Agreement and the Closing
Date, Buyer will cooperate with Seller with respect to all filings
that Seller are required by Legal Requirements to make in connection with the
Contemplated Transactions, and (ii) cooperate with Seller in obtaining all
consents.
6.2 BEST
EFFORTS
Between
the date of this Agreement and the Closing Date, Buyer will use its Best Efforts
to cause the conditions in Sections 7 and 8 to be satisfied.
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7.
CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE
Buyer's
obligation to purchase the Shares and to take the other actions required to be
taken by Buyer at the Closing is subject to the satisfaction, at or prior to the
Closing, of each of the following conditions (any of which may be waived by
Buyer, in whole or in part):
7.1 ACCURACY
OF REPRESENTATIONS
All of
Seller's representations and warranties in this Agreement (considered
collectively), and each of these representations and warranties (considered
individually), must have been accurate in all material respects as of the date
of this Agreement, and must be accurate in all material respects as of the
Closing Date as if made on the Closing Date.
7.2 SELLER'S
PERFORMANCE
All of
the covenants and obligations that Seller are required to perform or to comply
with pursuant to this Agreement at or prior to the Closing (considered
collectively), and each of these covenants and obligations (considered
individually), must have been duly performed and complied with in all material
respects.
7.3 CONSENTS
Each of
the required consents, if any, must have been obtained.
7.4 NO
PROCEEDINGS
Since the
date of this Agreement, there must not have been commenced or Threatened against
Buyer any Proceeding (a) involving any challenge to any of the Contemplated
Transactions, or (b) that may have the effect of preventing, delaying,
making illegal, or otherwise interfering with any of the Contemplated
Transactions.
7.5 NO
PROHIBITION
Neither
the consummation nor the performance of any of the Contemplated Transactions
will, directly or indirectly (with or without notice or lapse of time),
materially contravene, or conflict with, or result in a material violation of,
any applicable Legal Requirement or Order.
8.
CONDITIONS PRECEDENT TO SELLER'S OBLIGATION TO CLOSE
Seller's
obligation to sell the Shares and to take the other actions required to be taken
by Seller at the Closing is subject to the satisfaction, at or prior to the
Closing, of each of the following conditions (any of which may be waived by
Seller, in whole or in part):
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8.1
BUYER'S PERFORMANCE
All of the covenants and obligations that Buyer is required to perform or to
comply with pursuant to this Agreement at or prior to the Closing (considered
collectively), and each of these covenants and obligations (considered
individually), must have been performed and complied with in all material
respects.
8.2 NO
INJUNCTION
There
must not be in effect any Legal Requirement or any injunction or other Order
that (a) prohibits the sale of the Shares by Seller to Buyer, and
(b) has been adopted or issued, or has otherwise become effective, since
the date of this Agreement.
9.
TERMINATION
9.1 TERMINATION
EVENTS
This
Agreement may, by notice given prior to or at the Closing, be
terminated:
(a) by
either Buyer or Seller if a material breach of any provision of this Agreement
has been committed by the other party and such breach has not been
waived;
(b) (i)
by Buyer if any of the conditions in Section 7 has not been satisfied as of the
Closing Date (other than through the failure of Buyer to comply with its
obligations under this Agreement) and Buyer has not waived such condition on or
before the Closing Date; or (ii) by Seller, if any of the conditions in Section
8 has not been satisfied of the Closing Date (other than through the failure of
Seller to comply with their obligations under this Agreement) and Seller has not
waived such condition on or before the Closing Date;
(c) by
mutual consent of Buyer and Seller; or
(d) by
either Buyer or Seller if the Closing has not occurred (other than through the
failure of any party seeking to terminate this Agreement to comply fully with
its obligations under this Agreement) on or before _______________, or such
later date as the parties may agree upon in writing.
9.2 EFFECT
OF TERMINATION
Each
party's right of termination under Section 9.1 is in addition to any other
rights it may have under this Agreement or otherwise, and the exercise of a
right of termination will not be an election of remedies. If this Agreement is
terminated pursuant to Section 9.1, all further obligations of the parties
under this Agreement will terminate, except that the obligations in Sections
11.1 and 11.3 will survive; provided, however, that if this Agreement is
terminated by a party because of the breach of the Agreement by the other party
or because one or more of the conditions to the terminating party's obligations
under this Agreement is not satisfied as a result of the other party's failure
to comply with its obligations under this Agreement, the terminating party's
right to pursue all legal remedies will survive such termination
unimpaired.
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10. INDEMNIFICATION;
REMEDIES
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10.1
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SURVIVAL
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All
representations, warranties, covenants, and obligations in this Agreement, will
survive the Closing until the expiration of the statute of
limitations.
10.2 INDEMNIFICATION
AND PAYMENT OF DAMAGES BY SELLER
Seller
will indemnify and hold harmless Buyer and its Representatives, stockholders,
controlling persons, and affiliates (collectively, the "Indemnified Persons")
for, and will pay to the Indemnified Persons the amount of, any loss, liability,
claim, damage, expense (including reasonable attorneys' fees) involving a
third-party claim (collectively, "Damages"), arising from: (a) any breach of any
representation or warranty made by Seller in this Agreement; or (b) any claim by
any Person for brokerage or finder's fees or commissions or similar payments
based upon any agreement or understanding alleged to have been made by any such
Person with either Seller or any Acquired Company (or any Person acting on their
behalf) in connection with any of the Contemplated Transactions.
11. GENERAL
PROVISIONS
11.1 EXPENSES
Except as
otherwise expressly provided in this Agreement, each party to this Agreement
will bear its respective expenses incurred in connection with the preparation,
execution, and performance of this Agreement and the Contemplated Transactions,
including all fees and expenses of agents, representatives, counsel, and
accountants. In the event of termination of this Agreement, the
obligation of each party to pay its own expenses will be subject to any rights
of such party arising from a breach of this Agreement by another
party.
11.2 PUBLIC
ANNOUNCEMENTS
Any
public announcement or similar publicity with respect to this Agreement or the
Contemplated Transactions will be issued, if at all, at such time and in such
manner as Seller determines. Unless consented to by the other party in advance
or required by Legal Requirements, prior to the Closing the parties shall keep
this Agreement strictly confidential and may not make any disclosure of this
Agreement to any Person. Seller and Buyer will consult with each other
concerning the means by which the Acquired Companies' employees, customers, and
suppliers and others having dealings with the Acquired Companies will be
informed of the Contemplated Transactions, and Buyer will have the right to be
present for any such communication.
11.3 CONFIDENTIALITY
Between
the date of this Agreement and the Closing Date, Buyer and Seller will maintain
in confidence, and will cause their Representatives to maintain in confidence,
and not use to the detriment of another party or an Acquired Company any
written, oral, or other information obtained in confidence from another party or
an Acquired Company in connection with this Agreement
or the Contemplated Transactions, unless (a) such information is already known
to such party or to others not bound by a duty of confidentiality or such
information becomes publicly available through no fault of such party, (b) the
use of such information is necessary and appropriate in making any filing or
obtaining any consent or approval required for the consummation of the
Contemplated Transactions, or (c) the furnishing or use of such information is
required by legal proceedings.
If the
Contemplated Transactions are not consummated, each party will return or destroy
as much of such written information as the other party may reasonably
request.
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11.4 NOTICES
All notices, consents, waivers, and
other communications under this Agreement must be in writing and will be deemed
to have been duly given when (a) delivered by hand (with written confirmation of
receipt), (b) sent by telecopier (with written confirmation of receipt),
provided that a copy is mailed by registered mail, return receipt requested, or
(c) when received by the addressee, if sent by a nationally recognized overnight
delivery service (receipt requested), in each case to the appropriate addresses
and telecopier numbers set forth at addresses set forth on the signature page
hereof (or to such other addresses and telecopier numbers as a party may
designate by notice to the other party).
11.5 ENTIRE
AGREEMENT AND MODIFICATION
This
Agreement supersedes all prior agreements between the parties with respect to
its subject matter and constitutes (along with the documents referred to in this
Agreement) a complete and exclusive statement of the terms of the agreement
between the parties with respect to its subject matter. This Agreement may not
be amended except by a written agreement executed by the party to be charged
with the amendment.
11.6 ASSIGNMENTS,
SUCCESSORS, AND NO THIRD-PARTY RIGHTS
Neither
party may assign any of its rights under this Agreement without the prior
consent of the other parties, except that Buyer may assign any of its rights
(but not its obligations, which shall be retained by Buyer) under this Agreement
to any Subsidiary of Buyer. Subject to the preceding sentence, this
Agreement will apply to, be binding in all respects upon, and inure to the
benefit of the successors and permitted assigns of the parties. Nothing
expressed or referred to in this Agreement will be construed to give any Person
other than the parties to this Agreement any legal or equitable right, remedy,
or claim under or with respect to this Agreement or any provision of this
Agreement. This Agreement and all of its provisions and conditions are for the
sole and exclusive benefit of the parties to this Agreement and their successors
and assigns.
11.7 SEVERABILITY
If any
provision of this Agreement is held invalid or unenforceable by any court of
competent jurisdiction, the other provisions of this Agreement will remain in
full force and effect. Any provision of this Agreement held invalid or
unenforceable only in part or degree will remain in full force and effect to the
extent not held invalid or unenforceable.
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11.8 SECTION
HEADINGS, CONSTRUCTION
The
headings of Sections in this Agreement are provided for convenience only and
will not affect its construction or interpretation. All references to "Section"
or "Sections" refer to the corresponding Section or Sections of this Agreement.
All words used in this Agreement will be construed to be of such gender or
number as the circumstances require. Unless otherwise expressly provided, the
word "including" does not limit the preceding words or terms. With
regard to all dates and time periods set forth or referred to in this Agreement,
time is of the essence.
11.9 GOVERNING
LAW
This
Agreement will be governed by the laws of the State of Delaware without regard
to conflicts of laws principles.
11.10 COUNTERPARTS
This
Agreement may be executed in one or more counterparts, each of which will be
deemed to be an original copy of this Agreement and all of which, when taken
together, will be deemed to constitute one and the same agreement.
IN
WITNESS WHEREOF, the parties have executed and delivered this Agreement as of
the date first written above.
| Buyer: | Seller: | |||||
| By |
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By: |
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| Name: | Name : | |||||
| Title: | Title : | |||||
| Address: | ||||||
| Address: | ||||||
| Fax: | Fax: | |||||
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