EXHIBIT 2.1
ASSET PURCHASE AGREEMENT
BY AND AMONG
XXXX ACQUISITION CO. PTE LTD;
XXXX X.X. LABORATORY PTE LTD;
INTERNATIONAL VISION LABORATORIES PTE LTD;
XXXX VISIONCARE PTE LTD;
AND
THE SHAREHOLDERS LISTED ON THE SIGNATURE PAGE HERETO
04TH MAY, 2002
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TABLE OF CONTENTS
TABLE OF CONTENTS
PAGE
1. DEFINITIONS.........................................................................5
2. BASIC TRANSACTION...................................................................9
(a) PURCHASE AND SALE OF ACQUIRED ASSETS AND GRANT OF LICENSE....................9
(b) ASSUMPTION OF LIABILITIES....................................................9
(c) PURCHASE PRICE..............................................................10
(d) THE CLOSING.................................................................10
(e) DELIVERIES AT THE CLOSING...................................................10
(f) ALLOCATION..................................................................11
(g) RISK........................................................................11
3. REPRESENTATIONS AND WARRANTIES OF THE SELLER AND THE SHAREHOLDERS..................11
(a) ORGANIZATION OF THE SELLER..................................................12
(b) PERMITS.....................................................................12
(c) AUTHORIZATION OF TRANSACTION................................................12
(d) NONCONTRAVENTION............................................................12
(e) BROKERS' FEES...............................................................13
(f) TITLE TO ACQUIRED ASSETS....................................................13
(g) FINANCIAL STATEMENTS........................................................13
(h) EVENTS SUBSEQUENT TO MOST RECENT FISCAL YEAR END............................13
(i) UNDISCLOSED LIABILITIES.....................................................14
(j) LEGAL COMPLIANCE............................................................14
(k) TAX MATTERS.................................................................14
(l) REAL PROPERTY...............................................................14
(m) INTELLECTUAL PROPERTY.......................................................16
(n) TANGIBLE ASSETS.............................................................19
(o) SUFFICIENCY OF ACQUIRED ASSETS..............................................19
(p) CONTRACTS...................................................................19
(q) INSURANCE...................................................................19
(r) LITIGATION..................................................................20
(s) WARRANTIES..................................................................20
(t) GUARANTIES..................................................................20
(u) EMPLOYEES...................................................................20
(v) EMPLOYEE BENEFITS...........................................................20
(w) ENVIRONMENTAL, HEALTH, AND SAFETY MATTERS...................................20
(x) INVESTMENT IN SHARES........................................................22
(y) DISCLOSURE..................................................................23
4. REPRESENTATIONS AND WARRANTIES OF THE BUYER........................................23
(a) ORGANIZATION OF THE BUYER...................................................23
(b) AUTHORIZATION OF TRANSACTION................................................24
(c) NON-CONTRAVENTION...........................................................24
(d) NO PROCEEDING...............................................................24
(e) NO ORDER....................................................................25
(f) SECURITIES FILINGS,.........................................................25
(g) SHARES......................................................................25
(h) BROKERS' FEES...............................................................25
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(i) DISCLOSURE....................................................................25
5. PRE-CLOSING COVENANTS..............................................................25
(a) GENERAL.....................................................................25
(b) NOTICES AND CONSENTS........................................................25
(c) OPERATION OF THE ACQUIRED ASSETS............................................26
(d) PRESERVATION OF BUSINESS....................................................26
(e) FULL ACCESS.................................................................26
(f) NOTICE OF DEVELOPMENTS......................................................26
(g) EXCLUSIVITY.................................................................26
(h) CONFIDENTIALLY..............................................................27
(i) REGISTRATION STATEMENT......................................................27
(j) UNDERTAKINGS OF THE SELLER RELATING, TO EMPLOYEES...........................28
(k) UNDERTAKINGS OF THE SELLER RELATING TO LEASEHOLD PROPERTY...................28
6. CONDITIONS TO OBLIGATION TO CLOSE..................................................29
(a) CONDITIONS TO OBLIGATION OF THE BUYER.......................................29
(b) CONDITIONS TO OBLIGATION OF THE SELLER......................................31
7. TERMINATION........................................................................32
(a) TERMINATION OF AGREEMENT....................................................32
(b) EFFECT OF TERMINATION.......................................................33
8. POST-CLOSING COVENANTS.............................................................33
(a) GENERAL ....................................................................33
(b) LITIGATION SUPPORT..........................................................33
(e) TRANSITION..................................................................34
(d) CONFIDENTIALITY.............................................................34
(e) COVENANT NOT TO COMPETE.....................................................34
(f) SURVIVAL OF REPRESENTATIONS AND WARRANTIES..................................35
(g) THIRD PARTY CONSENTS........................................................35
(h) INDEMNIFICATION PROVISIONS FOR BENEFIT OF THE BUYER.........................35
(i) INDEMNIFICATION PROVISIONS FOR BENEFIT OF THE SELLER AND THE SHAREHOLDERS...37
(j) MATTERS INVOLVING THIRD-PARTIES.............................................37
(k) NATURE AND LIMITATIONS ON INDEMNIFICATION OBLIGATIONS.......................38
(l) REPAYMENT OF LOANS..........................................................38
(m) LICENSE RIGHTS..............................................................39
9. ESCROW AGREEMENT...................................................................39
10. MISCELLANEOUS......................................................................39
(a) PRESS RELEASES AND PUBLIC ANNOUNCEMENTS.....................................39
(b) NO THIRD-PARTY BENEFICIARIES................................................39
(c) ENTIRE AGREEMENT............................................................39
(d) SUCCESSION AND ASSIGNMENT...................................................40
(e) COUNTERPARTS................................................................40
(f) HEADINGS....................................................................40
(g) NOTICES.....................................................................40
(h) GOVERNING LAW...............................................................41
(i) DISPUTE RESOLUTION..........................................................41
(j) AMENDMENTS AND WAIVERS......................................................42
(k) SEVERABILITY................................................................42
(l) EXPENSES....................................................................42
(m) CONSTRUCTION................................................................42
(n) INCORPORATION OF EXHIBITS AND SCHEDULES.....................................42
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(o) SPECIFIC PERFORMANCE........................................................42
EXHIBIT A ACQUIRED ASSETS...............................................................45
EXHIBIT A-1 CUSTOMER CONTRACTS AND CUSTOMER LIST...................................46
EXHIBIT A-2 PROPRIETARY INFORMATION AND PROCESSES..................................47
EXHIBIT A-3 BUSINESS NAMES AND TELEPHONE NUMBERS...................................48
EXHIBIT A-4 AGREEMENTS.............................................................49
EXHIBIT A-5 TANGIBLE PERSONAL PROPERTY.............................................50
EXHIBIT A-6 INVENTORY..............................................................51
EXHIBIT A-7 INTELLECTUAL PROPERTY..................................................52
EXHIBIT A-8 PERMITS................................................................53
EXHIBIT B KEY EMPLOYEES.................................................................54
EXHIBIT C EMPLOYMENT AGREEMENT..........................................................55
EXHIBIT D XXXX OF SALE..................................................................70
EXHIBIT E ASSIGNMENT AND ASSUMPTION OF CONTRACTS........................................72
EXHIBIT F FINANCIAL STATEMENTS..........................................................76
EXHIBIT G OPINION OF PATENT COUNSEL TO THE SELLER.......................................77
EXHIBIT H ESCROW AGREEMENT..............................................................78
EXHIBIT I ALLOCATION OF PURCHASE PRICE..................................................96
EXHIBIT J ASSIGNMENT OF LEASE AGREEMENT.................................................97
EXHIBIT K DEED OF SURRENDER............................................................104
EXHIBIT L NOVATION AGREEMENT...........................................................107
EXHIBIT M UNDERTAKING FROM THE PARENT..................................................112
DISCLOSURE SCHEDULE....................................................................114
Assumed Liabilities:..............................................................129
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ASSET PURCHASE AGREEMENT
THIS
ASSET PURCHASE AGREEMENT is entered into as of this 04th day of May
2002 by and among XXXX ACQUISITION CO. PTE LTD, a Singapore private company (the
"Buyer"); XXXX VISIONCARE PTE LTD, a Singapore private company (the "Company");
XXXX X.X. LABORATORY PTE LTD, a Singapore private company; and INTERNATIONAL
VISION LABORATORIES PTE LTD, a Singapore private company (collectively, "XXXX
Subsidiaries"); and SINDUCHAJANA SULISTYO, an individual; and XXXXXXX X. XXXXXX,
an individual (collectively, the "Shareholders"). The Company and the XXXX
Subsidiaries are sometimes referred to collectively herein as the "Seller" and
any reference to the Seller, although appearing in the singular, shall unless
the context otherwise requires, include a reference to each one of the aforesaid
entities and all of them. The Buyer, the Seller and the Shareholders are
sometimes referred to collectively herein as the "Parties."
This Agreement contemplates a transaction in which the Buyer will purchase
certain of the assets of the Seller in return for the consideration hereinafter
set forth.
NOW, THEREFORE, in consideration of the premises and the mutual promises
herein made, and in consideration of the representations, warranties, and
covenants herein contained, the Parties agree as follows.
1. DEFINITIONS.
"ACQUIRED ASSETS" means all right, title, and interest in and to the assets
of the Seller set forth on Exhibit A hereto.
"ADVERSE CONSEQUENCES" means all actions, suits, proceedings, hearings,
investigations, charges, complaints, claims, demands, injunctions, Orders,
damages, dues, penalties, fines, costs, amounts paid in settlement, liabilities,
obligations, taxes, liens, losses, expenses, and fees, including court costs and
reasonable attorney's fees and expenses involving or relating to the Acquired
Assets, PROVIDED HOWEVER that Adverse Consequences shall not include
consequential, incidental or punitive damages.
"AFFILIATE" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Securities Exchange Act of 1934, as amended.
"ASSIGNMENT AND ASSUMPTION OF CONTRACTS" has the meaning set forth in
Section 2(e) below.
"ASSUMED LIABILITIES" means (a) all obligations of the Seller arising in
the Ordinary Course of Business from and after the Closing Date under the
agreements referred to in the definition of Acquired Assets, and (b) save to the
extent qualified therein, those other Liabilities and obligations of the Seller
specifically set forth in an appendix to the Disclosure Schedule under an
express statement (that the Buyer has initialed) to the effect that the
definition of Assumed Liabilities will include the Liabilities and obligations
so disclosed; PROVIDED, HOWEVER, that the Assumed Liabilities shall not include
(i) any Liability of the Seller for Taxes, (ii) any Liability of the Seller for
the unpaid Taxes of any Person (other than of the Seller) under Reg. Section
1.1502-6 (or any similar provision of state, local, or foreign Law), as a
transferee or successor, by contract, or otherwise, (iii) any obligations of the
Seller to indemnify any Person (including any of the Shareholders) by reason of
the fact that such
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Person was a manager, officer, employee, or agent of the Seller or was serving
at the request of any such entity as a partner, trustee, manager, officer,
employee, or agent of another entity (whether such indemnification is for
judgments, damages, penalties, fines, costs, amounts paid in settlement, losses,
expenses, or otherwise and whether such indemnification is pursuant to any
statute, charter document, bylaw, agreement, or otherwise), (iv) any Liability
of the Seller for costs and expenses incurred in connection with this Agreement
and the transactions contemplated hereby, (v) any Liability or obligation of the
Seller under this Agreement, or (vi) any other Liability or other obligation of
the Seller not specifically set forth in an appendix to the Disclosure Schedule
and specifically agreed to by the Buyer.
"XXXX OF SALE" has the meaning set forth in Section 2(e) below.
"BUYER" has the meaning set forth in the preface above.
"CASH PURCHASE PRICE" has the meaning set forth in Section 2(c) below.
"CLOSING" has the meaning set forth in Section 2(d) below.
"CLOSING DATE" has the meaning set forth in Section 2(d) below,
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMPANY" has the meaning set forth in the preface above.
"CONFIDENTIAL INFORMATION" means any information concerning the businesses
and affairs of the Seller, Buyer or the Parent (as defined below), excluding
such information concerning the businesses and affairs of the Seller that
relates to the manufacture of contact lenses by lathing, that is not already
generally available to the public and that is not generally known in the contact
lens industry.
"CONSENT" means any approval, authorization, consent, ratification, waiver,
exemption or variance by or on behalf of any Person other than a Party.
"DISCLOSURE SCHEDULE" has the meaning set forth in Section 3 below.
"EMPLOYEE BENEFIT PLAN" means any deferred compensation or retirement plan,
or arrangement, pension schemes, social security schemes, welfare plans,
retirement, death or disability benefit schemes and other employee benefits,
bonus, or incentive plans or programs, or any profit sharing, incentive, bonus
or equity participation arrangement, including any mandatory benefits or schemes
which are imposed by applicable Laws.
"EMPLOYMENT AGREEMENT" has the meaning set forth in Section 2(e) below.
"ENVIRONMENTAL, HEALTH, AND SAFETY REQUIREMENTS" shall mean all Laws, all
federal, state, local and foreign statutes, regulations, ordinances, directives
and other provisions having the force or effect of law, all judicial and
administrative Orders and determinations, all contractual obligations and all
common law concerning public health and safety, worker health and safety, and
pollution or protection of the environment, including without limitation all
those relating to the presence, use, production, generation, handling,
transportation, treatment, storage, disposal, distribution, labeling, testing,
processing, discharge, release, threatened release, control, or cleanup of any
hazardous materials, substances or wastes, chemical substances or mixtures,
pesticides, pollutants, contaminants, toxic chemicals,
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petroleum products or byproducts, asbestos, polychlorinated biphenyls, noise or
radiation, each as a mended and as now or hereafter in effect.
"ESCROW AGENT" means the escrow agent appointed and serving pursuant to the
Escrow Agreement.
"ESCROW AGREEMENT" means the Escrow Agreement to be dated as of the Closing
Date, substantially in the form attached hereto as Exhibit H.
"ESCROW FUND" has the meaning set forth in Section 9 below.
"FDA" means the U.S. Food and Drug Administration.
"GAAP" means Singapore generally accepted accounting principles as in
effect from time to time.
"GOVERNMENTAL AUTHORITY" means any United States, Singapore or foreign
federal, state or local government or governmental authority, agency, political
subdivision, bureau, department or instrumentality; any court or arbitration
panel of competent jurisdiction; any stock exchange or automated inter-dealer
quotation system on which any securities of the Parties are listed, admitted to
trading or included for quotation.
"XXXX SUBSIDIARIES" has the meaning set out in the preface above.
"INTELLECTUAL PROPERTY" means (a) all inventions (whether patentable or
unpatentable and whether or not reduced to practice), all improvements thereto,
and all patents, patent applications, and patent disclosures, together with all
reissuances, continuations, continuations-in-part, revisions, extensions, and
reexaminations thereof, (b) all trademarks, service marks, logos, trade names,
domain names, corporate names and IP addresses, together with all translations,
adaptations, derivations, and combinations thereof and including all goodwill
associated therewith, and all applications, registrations, and renewals in
connection therewith, (c) all copyrightable works, all copyrights, and all
applications, registrations, and renewals in connection therewith, (d) all mask
works and all applications, registrations, and renewals in connection therewith,
(e) all trade secrets and confidential business information (including ideas,
research and development, know-how, formulas, compositions, manufacturing and
production processes and techniques, technical data, designs, drawings,
specifications, customer and supplier lists, pricing and cost information, and
business and marketing plans and proposals), (f) all computer software
(including data and related documentation), (g) all other proprietary rights,
and (h) all copies and tangible embodiments thereof (in whatever form or
medium).
"KEY EMPLOYEES" means those key employees of the Seller that are listed on
Exhibit B hereto.
"KNOWLEDGE" means actual knowledge after reasonable investigation.
"LAW" means any statute, rule, regulation or ordinance of any Governmental
Authority.
"LEASEHOLD PROPERTY" means the property situated at 000 Xxx Xxxx Xxxx,
Xxxxxxxxx together with all buildings and fixtures located or situated thereon,
and "Leasehold Interest" means all rights, title and interest in and to the
Leasehold Property that may be vested in
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International Vision Laboratories Pte Ltd including that arising pursuant to the
Building Agreement dated 1 November 1993, entered into between the Housing and
Development Board of Singapore and International Vision Laboratories Pte Ltd.
"LIABILITY" OR "LIABILITIES" means any liability (whether known or unknown,
whether asserted or unasserted, whether absolute or contingent, whether accrued
or unaccrued, whether liquidated or unliquidated, and whether due or to become
due), including any liability for Taxes.
"MATERIAL ADVERSE EFFECT" means any material adverse effect on the Acquired
Assets, the Seller or their respective businesses or operations or the sale and
transfer of the Acquired Assets to the Buyer pursuant to this Agreement.
"MOST RECENT FINANCIAL STATEMENTS" has the meaning set forth in Section
3(g) below.
"MOST RECENT MONTH END" has the meaning set forth in Section 3(g) below.
"MOST RECENT FISCAL YEAR END" has the meaning set forth in Section 3(g)
below.
"NOTICE" means giving any notice to, or making any declaration or filing,
or registration or recordation, with any Person.
"ORDER" means any judgment, order, writ, decree, award, directive, ruling
or decision of any Governmental Authority.
"ORDINARY COURSE-OF BUSINESS" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity and
frequency).
"PARENT" means 1-800 Contacts, Inc., a Delaware corporation.
"PARTY" or "PARTIES" have the meaning set forth in the preface above.
"PERMITS" means all concessions, permits, licenses, authorizations,
approvals, certificates, registrations and Consents of the Seller with respect
to the Acquired Assets and/or their respective use and exploitation, including,
but not limited to (i) any permits from any Governmental Authority or Laws of
any U.S., Singapore or other foreign Governmental Authority having jurisdiction
over the Seller and their assets and operations, and (ii) any ISO
certifications, CE certifications, manufacturing approvals, approvals and
certifications given by the FDA and any similar Governmental Authority in
Singapore or other jurisdictions.
"PERMITTED LIEN" means a Security Interest that secures any Assumed
Liability or that (i) secures the payment of unpaid Taxes that are currently due
and not yet delinquent; (ii) is a carriers', warehousemen's, mechanics' or other
similar Security Interest arising in the Ordinary Course of Business; (iii)
arises out of pledges or deposits under unemployment insurance or worker's
compensation, pension or other social security or retirement benefits that are
currently due and not yet delinquent; or (iv) is a utility easement, building
restriction or other encumbrance or charge against real property which is of a
nature generally existing with respect to properties of a similar character and
which does not materially affect their marketability or interfere with their
intended use.
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"PERSON" means an individual, a partnership, a corporation, an association,
a joint stock company, a trust, a joint venture, an unincorporated organization,
or a Governmental Authority.
"PROCEEDING" means any action, suit, arbitration, audit, hearing,
investigation or other proceeding, at law or in equity, before or by any
Governmental Authority.
"PURCHASE PRICE" has the meaning set forth in Section 2(c) below.
"SECURITY INTEREST" means any interest or equity" of any Person (including
any right to acquire, option or right of first refusal) or any mortgage, pledge,
lien, encumbrance, charge, assignment, hypothecation, security interest, title
retention or any other security agreement or arrangement or other security
interest.
"SELLER" has the meaning set forth in the preface above.
"SHAREHOLDERS" has the meaning set forth in the preface above.
"SHARES" has the meaning set forth in Section 2(c) below.
"SINGAPORE DOLLARS" means the official currency of the Republic of
Singapore.
"TAX" means where applicable, any U.S. or Singapore federal, state, local,
or foreign income, gross receipts, license, payroll, employment, excise,
severance, stamp, occupation, premium, windfall profits, environmental
(including taxes under Code Section 59A), customs duties, capital stock,
franchise, profits, withholding, social security (or similar), unemployment,
disability, real property, personal property, sales, use, transfer,
registration, value added, goods and services, compulsory statutory
contributions and saving schemes, alternative or add-on minimum, estimated, or
other tax of any kind whatsoever, including any interest, penalty, or addition
thereto, whether disputed or not.
"TAX REFUND" means any return, declaration, report, claim for refund, or
information return or statement relating to Taxes, including any schedule or
attachment thereto, and including any amendment thereof
"TRANSACTION DOCUMENT" means this Agreement and each other agreement,
instrument, certificate or other document to be executed and/or delivered by a
Party pursuant hereto
2. BASIC TRANSACTION.
(a) PURCHASE AND SALE OF ACQUIRED ASSETS AND GRANT OF LICENSE. On and
subject to the terms and conditions of this Agreement and for the
consideration specified below in this Section 2, the Seller agrees to sell,
transfer, convey, assign and deliver to the Buyer, and the Buyer agrees to
purchase from the Seller, all of the Acquired Assets at the Closing, free
and clear from any Liabilities, other than the Assumed Liabilities, and
free and clear of all Security Interests, other than the Permitted Liens.
(b) ASSUMPTION OF LIABILITIES, On and subject to the terms and
conditions of this Agreement, the Buyer agrees to assume and become
responsible, for the Assumed Liabilities at the Closing, However, the Buyer
will not assume or have any
9
responsibility, whatsoever, with respect to any other obligation or
Liability of the Seller not expressly included within the definition of
Assumed Liabilities.
(c) PURCHASE PRICE. In exchange for the Acquired Assets, the
aggregate purchase price (the "Purchase Price") shall be (i) Eight Million
Singapore Dollars (SGD8,000,000.00), to be paid by the Buyer to such bank
account as may be jointly nominated by the Company and the XXXX
Subsidiaries in writing at the Closing by wire transfer or other
immediately available funds (the "Cash Purchase Price"), and (ii) 700,000
restricted shares of the common stock of the Parent (the "Shares") to be
delivered at the Closing by the Buyer to the Escrow Agent, to be held in
escrow pursuant to the Escrow Agreement. The Parties agree that the Shares
shall be released to the Seller by the Escrow Agent only pursuant to the
conditions set forth in the Escrow Agreement.
(d) THE CLOSING. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place in person or by telephone
conference call, or at the corporate headquarters of the Buyer, 00 Xxxx
Xxxxxxxxx Xxxx Xxxxx, 0xx Xxxxx, Xxxxxx, Xxxx 00000, or such other place as
the parties may mutually agree, commencing at 10:00 a.m. local time on the
earlier of (i) the second business day following the satisfaction or waiver
of all conditions to the obligations of the Parties to consummate the
transactions contemplated hereby (other than conditions with respect to
actions the respective Parties will take at the Closing itself) or (ii)
July 31, 2002 (the "Closing Date"); provided, however, that the Closing
Date may be extended upon mutual written agreement of the Parties.
(e) DELIVERIES AT THE CLOSING. At the Closing:
i the Buyer will deliver to the Seller: (A) the certificate
referred to in Section 6(b)(v) below, (B) the Purchase Price specified
in Section 2(c) above, (C) a counterpart of the novation agreements to
be made by and among the Buyer, the Seller and the owners of the
assets, machinery and/or equipment comprised in the hire purchase
agreements included in the list of Assumed Liabilities in the
Disclosure Schedule, in the form attached hereto as Exhibit L (the
"Novation Agreements"), duly executed by the Buyer, (D) a counterpart
of an employment agreement duly executed by the Buyer in respect of
the employment of Xx. Xxxxxxx X. Xxxxxx, which shall be in the form
attached hereto as Exhibit C (the "Employment Agreement"), (E) a
counterpart of the Escrow Agreement duly executed by the Buyer and the
Escrow Agent, (and (F) an undertaking in writing in the form set out
in Exhibit M from the parent that it will comply with the provisions
of and perform the obligations set out in Section 5(i);
ii the Seller and the Shareholders will deliver to the Buyer:
(A) the Acquired Assets, including those listed in Exhibits A-5 and
A-6, (B) the various certificates, instruments, and documents referred
to in Section 6(a)(iv), (v), (vii) and (xiv) below, (C) the Novation
Agreements, each duly executed by the Seller and the relevant owner of
the assets, machinery and/or equipment comprised in the hire purchase
agreement to be novated, (D) a xxxx of sale in the form attached
hereto as Exhibit D (the "Xxxx of Sale") duly executed by the Seller
for purposes of execution and completion by the Buyer, (E) an
assignment and assumption of contracts agreement in the form attached
hereto
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as Exhibit E (the "Assignment and Assumption of Contracts"), duly
executed by the Seller for purposes of execution and completion by the
Buyer, (F) a counterpart of the Escrow Agreement, duly executed by the
Seller, (G) a duly executed assignment/transfer by International
Vision Laboratories Pte Ltd to the Buyer of the Leasehold Interest,
which assignment/transfer shall be in substantially the form attached
hereto as Exhibit J, subject to such further amendments or
modifications as may be necessary to meet such additional requirements
of, or to incorporate such terms and conditions as may be imposed by,
the relevant Government Authority, and accepted by the Buyer acting
reasonably, for purposes of execution and completion by the Parties,
and provided further that the assignment/transfer shall also be
effective to convey all rights, title and interests of International
Vision Laboratories Pte Ltd in and to all subleases subsisting as at
Closing (except for the subleases described in paragraph (I) below)
granted by International Vision Laboratories Pte Ltd in respect of any
part of the Leasehold Property, (H) payment by way of bank draft drawn
on a bank acceptable to the Buyer in respect of any and all deposits
received under all subleases (except for the subleases described in
paragraph (I) below) granted by International Vision Laboratories Pte
Ltd in respect of any part of the Leasehold Property, (I) duly
executed agreements evidencing the termination by mutual agreement of
the existing subleases entered into between International Vision
Laboratories Pte Ltd and (aa) XXXX XX Laboratory Pte Ltd in respect of
Units 04-01, 04-02, 06-02, BI-01, 04-03, 04-04 and 05-01 of the
Leasehold Property, and (bb) Alliance Technology And Development
Limited in respect of Xxxx 00-00 of the Leasehold Property, and (cc)
XXXX Far East Pte Ltd in respect of Unit #05-01 of the Leasehold
Property in substantially the form attached hereto as Exhibit K (the
"Deeds of Surrender"), (J) a counterpart of the Employment Agreement
duly executed by Xx. Xxxxxxx X. Xxxxxx, () (K) an opinion from patent
counsel to the Seller in the form attached hereto as Exhibit G
addressed to the Buyer and dated as of the Closing Date, and (L)
certified extracts of resolutions of the general meeting of
shareholders of the Company and each of the XXXX Subsidiaries
respectively approving the sale and transfer of the Acquired Assets
from each of them to the Buyer pursuant to this Agreement; and
iii each Party shall deliver such other instruments of sale,
transfer, conveyance, and assignment as the other Party and its
counsel reasonably may request.
(f) ALLOCATION. The Parties agree to allocate the Purchase Price (and
all other capitalizable costs) among the Acquired Assets for all purposes
(including financial accounting and tax purposes) in the manner set forth
in Exhibit I.
(g) RISK. All risk of loss of or damage to the Acquired Assets
including the Leasehold Property shall remain with the Seller up to and
until Closing.
3. REPRESENTATIONS AND WARRANTIES OF THE SELLER AND THE SHAREHOLDERS. The
Seller and the Shareholders jointly and severally represent and warrant to the
Buyer that the statements contained in this Section 3 are correct and complete
as of the date of this Agreement and will be correct and complete as of the
Closing Date (as though made then and as though the Closing Date were
substituted for the date of this Agreement throughout this Section 3), except as
set forth in the disclosure schedule accompanying this Agreement and
11
initialed by the Parties (the "Disclosure Schedule"). The Disclosure Schedule
will be arranged in paragraphs corresponding to the lettered and numbered
paragraphs contained in this Section 3:
(a) ORGANIZATION OF THE SELLER. Each of the Seller is a company duly
organized, validly existing and in good standing under the Laws of its
jurisdiction of formation, and it has full power and authority to own its
assets and carry on its business as and in the places where such assets are
located or such business is conducted, except where it would not reasonably
be expected to have a Material Adverse Effect. Complete and correct copies
of the Certificates of Incorporation, including all amendments thereto as
of the date hereof, and Bylaws of each of the Seller, including all
amendments thereto as of the date hereof, have been delivered or made
available to the Buyer.
(b) PERMITS. Section 3(b) of the Disclosure Schedule sets forth all
Permits. The Permits set forth in Section 3(b) of the Disclosure Schedule
constitute all of the Permits that the Seller has and that have been
necessary to enable the Seller to operate the Acquired Assets and the
businesses of the Seller as currently conducted by them (except for any
concessions, Permits, licenses, authorizations, approvals, certificates,
registrations and Consents as to which the failure to have would not
reasonably be expected to have a Material Adverse Effect) and that complete
copies of those Permits are attached to Section 3(b) of the Disclosure
Schedule. The Seller and the Shareholders further jointly and severally
represent and warrant that, except as set forth in Section 3(b) of the
Disclosure Schedule, (i) the Seller has title to, and full right to assign,
the Permits free and clear of any Liabilities to the Buyer, (ii) the Seller
will transfer, assign, and deliver all of the Permits to the Buyer at the
Closing, and (iii) upon their assignment and transfer to the Buyer, the
Permits will be valid and in fall force and effect,
(c) AUTHORIZATION OF TRANSACTION. The Seller has full power and
authority, and each of the Shareholders have full capacity, to execute and
deliver this Agreement and each other Transaction Document to which it is a
party and to assume and perform its obligations hereunder and thereunder.
The execution and delivery of this Agreement and each other Transaction
Document to which it is a party by the Seller and the performance of its
obligations hereunder and thereunder, have been duly authorized by all
requisite corporate actions on the part of the Seller (including without
limitation the adoption of this Agreement). This Agreement has been, and
each other Transaction Document to which the Seller or any of the
Shareholders is a party will be, duly executed and delivered by the Seller
and/or the relevant Shareholder, as the case may be, and this Agreement is,
and each other Transaction Document to which the Seller or any of the
Shareholders is a party, when so executed and delivered, will be, a legally
valid and binding obligation of the Seller or such Shareholder, as the case
may be, and enforceable against the relevant Party in accordance with their
respective terms, subject to (i) bankruptcy, insolvency, reorganization,
moratorium or other similar Laws now or hereafter in effect relating to
creditors' rights generally, and (ii) equitable principles limiting the
availability of specific performance, injunctive relief and other equitable
remedies.
(d) NONCONTRAVENTION. The execution and delivery of this Agreement by
the Seller and the Shareholders do not, and the execution and delivery of
each other Transaction Document (to which it may be a party) by the Seller
and the respective
12
Shareholders, and the performance by the Seller and the Shareholders of
their respective obligations hereunder and thereunder will not, violate any
applicable Law or any provision of the Certificate of Incorporation or
Bylaws of the Seller, and do not and will not conflict with or result in
any breach of any condition or provision of, or constitute a default under,
or create or give rise to any adverse right of termination or cancellation
by, or excuse the performance of, any other Person, or result in the
creation or imposition of any Security Interest upon the Seller or any of
the Acquired Assets or the acceleration of the maturity or date of payment
or other performance of any obligation of the Seller or any of the
Shareholders, other than any violation, conflict, breach, default, right of
termination or cancellation, excuse of performance, Security Interest or
acceleration that, individually or in the aggregate, would not reasonably
be expected to have a Material Adverse Effect. No Proceeding is pending,
or, to the Knowledge of the Seller or any of the Shareholders, threatened
against or affecting the business, assets or operations of the Seller or
threatened against or affecting any of the Shareholders, in which an
unfavorable Order would prohibit, invalidate or make unlawful, in whole or
in part, this Agreement or any other Transaction Document, or the carrying
out of the provisions hereof or thereof or the transactions contemplated
hereby or thereby. There is no Order enjoining the Seller or any of the
Shareholders in respect of, or the effect of which is to prohibit or
curtail its performance of, its obligations under this Agreement or any
other Transaction Document.
(e) BROKERS' FEES. Neither the Seller nor any of the Shareholders has
employed or engaged any Person to act as a broker, finder or other
intermediary in connection with the transactions contemplated hereby, no
Person is entitled to any fee, commission or other compensation relating to
any such employment or engagement by the Seller or any of the Shareholders,
and the Buyer and the Parent shall have no Liability whatsoever to any such
broker, finder or intermediary.
(f) TITLE TO ACQUIRED ASSETS. As of the date of Closing, the Seller
shall deliver to the Buyer good and marketable title to all of the Acquired
Assets, free and clear of any Liabilities, debts, obligations, claims,
limitations, other than Assumed Liabilities, and free and clear of Security
Interests, other than the Permitted Liens.
(g) FINANCIAL STATEMENTS. Attached hereto as Exhibit F are the
following financial statements: (i) audited balance sheet and statement of
income for the XXXX Subsidiaries as of and for the two-year period ended
December 31, 2000 and December 31, 2001 (the "Most Recent Fiscal Year
End"), and (ii) unaudited balance sheet and statement of income as of and
for the two-month period ended February 28, 2002 (the "Most Recent Month
End") (collectively, the "Most Recent Financial Statements"). The Most
Recent Financial Statements (without any notes thereto) have been prepared
in accordance with GAAP on a consistent basis throughout the periods
covered thereby, and are true, correct, and complete.
(h) EVENTS SUBSEQUENT TO MOST RECENT FISCAL YEAR END. Except as set
forth in Section 3(h) of the Disclosure Schedule, since the Most Recent
Fiscal Year End, there has not been any material adverse change in the
business, financial condition, operations, results of operations, or future
prospects of the, Acquired Assets, or the Seller, and the Seller and the
Acquired Assets have been operated by the Seller solely in the Ordinary
Course of Business, consistent with past practices.
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(i) UNDISCLOSED LIABILITIES. Except as set forth in Section 3(i) of
the Disclosure Schedule, the Seller has no Liability with respect to (i)
the Acquired Assets (and to the Knowledge of the Seller and each of the
Shareholders, there is no basis for any present or future Proceeding,
charge, complaint, claim, or demand against any of them giving rise to any
Liability), except for Liabilities set forth on the Most Recent Financial
Statements (including in any notes thereto), and (ii) Liabilities which
have arisen after the Most Recent Month End in the Ordinary Course of
Business (none of which results from, arises out of, relates to, is in the
nature of, or was caused by any breach of contract, breach of warranty,
tort, infringement, or violation of Law).
(j) LEGAL COMPLIANCE. Except as set forth in Section 30) of the
Disclosure Schedule, the Seller has complied in all material respects with
all applicable Laws (including rules, regulations, codes, plans,
injunctions, Orders and charges thereunder) of Governmental Authorities,
with respect to the Acquired Assets, and no Proceeding, charge, complaint
(including any unresolved administrative agency complaint), claim, demand,
or Notice has been filed or commenced against the Seller alleging any
failure to so comply.
(k) TAX MATTERS. The Seller has timely filed all Tax Returns with
respect to the ownership and operation of the Acquired Assets. Except as
set forth in Section 3(k) of the Disclosure Schedule, the Seller has paid
all Taxes that would be due assuming such Tax Returns were properly
prepared, no Liability exists for any unpaid Taxes of the Seller or
relative to the Acquired Assets prior to the Closing, except for Taxes
accrued but not yet due, and the Buyer shall have no Liability for Taxes
attributable to the Seller, attributable to the Seller's operations with
respect to the Acquired Assets, or attributable to any periods prior to the
Closing, except for Taxes accrued but not yet due.
(I) REAL PROPERTY. Save and except for the Leasehold Property, the
Seller does not own any real property. Section 3(I) of the Disclosure
Schedule lists and describes briefly all real property leased or subleased
to the Seller related to the Acquired Assets, The Seller has delivered to
the Buyer correct and complete copies of the leases and subleases listed in
Section 3(I) of the Disclosure Schedule (as amended to date), and all
Consents and Permits that may be required for the grant of such said leases
and subleases. Other than such leases or subleases, the Acquired Assets do
not include any Teal property or any interests therein. With respect to
each lease and sublease listed in Section 3(I) of the Disclosure Schedule:
i the Seller has good and marketable leasehold title to the
real property subject to the lease or sublease, and to the buildings
and fixtures located or situated thereon, free from any Security
Interest (other than the Permitted Liens) and free from any leases,
tenancies, claims, covenants, restrictions, conditions or other
agreement (save for the subleases listed in Section 3(c) of the
Disclosure Schedule and the covenants, restrictions, conditions and
agreement contained in the Building Agreement/Agreement for Lease
dated 1 November 1993), and the Seller has exclusive and unfettered
use of the said real property, buildings and fixtures subject only to
the terms of the relevant lease and/or sublease and the terms of the
Building Agreement/Agreement for Lease;
14
ii to the Knowledge of the Seller and each of the Shareholders,
the lease or sublease is legal, valid, binding, enforceable, and in
full force and effect, except in the case of any sublease granted by
the Seller where the illegality, invalidity, non-binding nature,
unenforceability or ineffectiveness would not be reasonably expected
to have a Material Adverse Effect;
iii to the Knowledge of the Seller and each of the Shareholders,
each such sublease will continue to be legal, valid, binding,
enforceable, and in full force and effect on identical terms following
the consummation of the transactions contemplated hereby, except where
the illegality, invalidity, nonbinding nature, unenforceability or
ineffectiveness would not have a Material Adverse Effect;
iv the grant of the lease or sublease has been made with the
Consent of all head landlords and relevant authorities and other
interested Persons and all conditions attached to such Consents have
been complied with in all material respects;
v the Seller has not received Notice of any breach or default
by it under any such lease or sublease and, to the Knowledge of the
Seller and each of the Shareholders, (A) neither the Seller nor any
other party to any such lease or sublease is in breach or default
thereunder and (B) no event has occurred which, with Notice or lapse
of time, would constitute a breach or default or permit termination,
modification, or acceleration thereunder;
vi the Seller has not, and to the Knowledge of the Seller and
each of the Shareholders, no other party to the lease or sublease, has
repudiated any provision thereof, and there are no circumstances which
could entitle any Person to exercise any powers of forfeiture, entry
and/or taking of possession or which could otherwise restrict or
prejudice the continued use and possession of the real property
(subject to the lease or sublease) or the buildings and fixtures
located or situated thereon;
vii to the Knowledge of the Seller and each of the Shareholders,
there are no disputes, oral agreements, or forbearance programs in
effect as to the lease or sublease or affecting the real property,
subject to the lease or the sublease or the buildings and fixtures
located thereon;
viii with respect to each sublease, the representations and
warranties set forth in subscriptions (i) through (vii) above are true
and correct with respect to the underlying lease;
ix Section 3(l)(ix) of the Disclosure Schedule sets forth the
terms and any relevant information regarding any assignment, transfer,
conveyance, mortgage, deed in trust, or encumbrance related to the
Leasehold Property and the Seller has complied in all material
respects and are in compliance in all material respects with the terms
and conditions of any such assignment, transfer, conveyance, mortgage,
deed of trust or encumbrance;
x the current use of the real property subject to the lease or
sublease, the buildings and fixtures located or situated thereon, and
all
15
machinery and equipment therein, and the conduct of any business
therein as presently conducted, complies with all applicable Laws,
Consents and Permits and all contractual obligations owed by the
Seller to any Person;
xi all facilities leased or subleased thereunder have received
all approvals of governmental authorities (including licenses and
Permits) required in connection with the operation thereof and have
been operated and maintained in accordance with applicable Permits and
Laws, except where the failure so to operate any such facility would-
not reasonably be expected to have a Material Adverse Effect;
xii all facilities leased or subleased thereunder are supplied
with utilities and other services necessary for the operation of the
facilities by the Seller until the Closing;
xiii the Seller has paid all rents, Taxes, assessments,
impositions and outgoings in respect of the real property held under
the lease or sublease (whether imposed by agreement, Law or otherwise)
as and when they fall due and the Seller is not in arrears in respect
of such payments; and
xiv To the best of the Seller's knowledge, no structural or
other material defects have appeared affecting the buildings and
fixtures on or comprising any of the real property subject to the
lease or sublease; and all Laws, Permits, Consents and contractual
obligations owed by the Seller to any Person, have been complied with
for the construction, alteration and/or maintenance of the real
property, its buildings and fixtures.
For the purposes of this Agreement, including Section 3(l), the
references to a lease include an agreement to lease, and the references to
real property include any property which is the subject of an agreement to
lease.
(m) INTELLECTUAL PROPERTY.
i The Seller owns or possesses or has the right to use,
pursuant to a valid and enforceable, written license, sublicense,
agreement, or permission of the all Intellectual Property necessary
for the operation of the businesses of the Seller and the Acquired
Assets as presently conducted and as presently proposed to be
conducted. Except as set forth in Section 3(m)(i) of the Disclosure
Schedule, each item of Intellectual Property owned or used by the
Seller with respect to the Acquired Assets immediately prior to the
Closing hereunder will be owned or available for use by the Buyer on
substantially in identical terms and conditions immediately subsequent
to the Closing hereunder. The seller has taken all necessary and
desirable action to maintain and protect each item of Intellectual
Property that it owns or uses, including the filing of a PCT patent
application which designates all PCT Treaty Countries to complete
Australian provisional patent application no. PR5117 by 20 May 2002.
ii Except as set forth on Section 3(m)(ii) of the Disclosure
Schedule, to the Seller's knowledge, the Seller has not interfered
with, infringed upon, misappropriated, or otherwise come into conflict
with any
16
Intellectual Property rights Of third parties, and the Seller and
directors and officers (and employees with responsibility for
Intellectual Property Matters) of the Seller have never received any
charge, complaint, claim, demand, or Notice alleging any such
interference, infringement, misappropriation, or violation (including
any claim that the Seller must license or refrain from using any
Intellectual Property rights of any third party). To the knowledge of
the Seller and each of the Shareholders, no third party has interfered
with, infringed upon, misappropriated, or otherwise come into conflict
with any Intellectual Property rights of the Seller.
iii Section 3(m)(iii) of the Disclosure Schedule identifies each
patent or registration that has been issued to the Seller with respect
to any of its Intellectual Property related to the Acquired Assets,
identifies each pending patent application or application for
registration which the Seller has made with respect to any of its
Intellectual Property related to the Acquired Assets, and identifies
each license, sublicense, agreement, or other permission which the
Seller has granted to any third party with respect to any of its
Intellectual Property related to the Acquired Assets (together with
any exceptions). The Seller has delivered to the Buyer correct and
complete copies of all such patents, registrations, applications,
licenses, sublicenses, agreements, and permissions (as amended to
date) and has made available to the Buyer correct and complete copies
of all other written documentation evidencing ownership and
prosecution (if applicable) of each such item. Section 3(m)(iii) of
the Disclosure Schedule also identifies each unregistered trademark,
service xxxx, trade name, corporate name or Internet domain name,
computer software item (other than commercially available
off-the-shelf software purchased or licensed for less than a total
cost of $1,000 in the aggregate) and each material unregistered
copyright used by the Seller in connection with any of its businesses.
With respect to each item of Intellectual Property required to be
identified in Section 3(m)(iii) of the Disclosure Schedule:
(1) the Seller owns and possesses all right, title, and
interest in and to the item, free and clear of any Security
Interest, license, or other restriction or limitation regarding
use or disclosure;
(2) the item is not subject to any outstanding injunction,
Order or charge;
(3) no Proceeding, charge, complaint, claim, or demand is
pending or, to the Knowledge of the Seller or any of the
Shareholders and the directors and officers (and employees with
responsibility for Intellectual Property matters) of the Seller,
is threatened which challenges the legality, validity,
enforceability, use, or ownership of the item, and there are no
grounds for the same;
(4) the Seller has not ever agreed to indemnify any Person
for or against any interference, infringement, misappropriation,
or other conflict with respect to the item; and
(5) no loss or expiration of the item is threatened,
pending, or reasonably foreseeable, except for patents expiring
at the end of
17
their statutory terms (and not as a result of any act or omission
by the Seller, including without limitation, a failure by the
Seller to pay any required maintenance fees).
iv Section 3(m)(iv) of the Disclosure Schedule identifies each
item of Intellectual Property related to the Acquired Assets that any
third party owns and that the Seller uses pursuant to a license,
sublicense, agreement, or permission. The Seller has delivered to the
Buyer correct and complete copies of all such licenses, sublicenses,
agreements, and permissions (as amended to date). With respect to each
item of Intellectual Property required to be identified in Section
3(m)(iv) of the Disclosure Schedule:
(1) the license, sublicense, agreement, or permission
covering the item is legal, valid, binding, enforceable, and in
full force and effect;
(2) the license, sublicense, agreement, or permission will
continue to be legal, valid, binding, enforceable, and in full
force and effect on identical terms following the consummation of
the transactions contemplated hereby;
(3) no party to the license, sublicense, agreement, or
permission is in breach or default, and no event has occurred
which with Notice or lapse of time would constitute a breach or
default or permit termination, modification, or acceleration
thereunder;
(4) no party to the license, sublicense, agreement, or
permission has repudiated any provision thereof;
(5) with respect to each sublicense, the representations
and warranties set forth in subsections (1) through (4) above are
true and correct with respect to the underlying license;
(6) the underlying item of Intellectual Property is not
subject to any outstanding injunction, judgment, Order, decree,
ruling, or charge;
(7) no Proceeding, charge, complaint, claim, or demand is
pending or, to the Knowledge of the Seller and the directors and
officers (and employees with responsibility for Intellectual
Property matters) of the Seller and each of the Shareholders, is
threatened which challenges the legality, validity, or
enforceability of the underlying item of Intellectual Property,
and there are no grounds for the same; and
(8) the Seller has not granted any sublicense or similar
right with respect to the license, sublicense, agreement, or
permission.
v To the Knowledge of the Seller and the directors and
officers (and employees with responsibility for Intellectual Property
matters) of the Seller and each of the Shareholders: (1) the Seller
has not in the past nor will
18
the Seller interfere with, infringe upon, misappropriate, or otherwise
come into conflict with, any Intellectual Property rights of third
parties as a result of the continued operation of its businesses as
presently conducted; (2) there are no facts that indicate a likelihood
of any of the foregoing; and (3) no Notices regarding any of the
foregoing (including, without limitation, any demands or offers to
license any Intellectual Property related to the Acquired Assets from
any third party) have been received.
vi The Seller has taken all necessary and desirable action to
maintain and protect all of the Intellectual Property of the Seller
and will continue to maintain and protect all of the Intellectual
Property of the Seller prior to Closing so as not to adversely affect
the validity or enforceability thereof. To the Knowledge of the Seller
and each of the Shareholders, the owners of any of the Intellectual
Property licensed to the Seller has taken all necessary and desirable
action to maintain and protect the Intellectual Property covered by
such license.
vii The Seller has complied in all material respects with, and
is presently in compliance in all material respects with, all
Singapore Laws and currently endeavors to comply in all material
respects with, U.S. and any other applicable foreign federal, state,
local, governmental (including, but not limited to, the Federal Trade
Commission and State Attorneys General), administrative or regulatory
Laws, regulations, guidelines and rules applicable to any Intellectual
Property related to the Acquired Assets and the Seller shall take all
steps necessary to ensure such compliance until Closing.
(n) TANGIBLE ASSETS. Except as disclosed in Section 3(n) of the
Disclosure Schedule, the Seller owns all tangible assets comprising the
Acquired Assets. Each such tangible asset is free from material defects
(patent and latent), has been maintained in accordance with normal industry
practice, is in good operating condition and repair (subject to normal wear
and tear), and is suitable for the purposes for which it presently is used.
(o) SUFFICIENCY OF ACQUIRED ASSETS. The Acquired Assets comprise all
of the assets necessary to the business of the Seller as currently
conducted by the Seller, and are sufficient to serve in a proper and
adequate manner the customer base of the Seller in the manner currently
serviced by the Seller, except where it would not reasonably be expected to
have a Material Adverse Effect.
(p) CONTRACTS. Except as set forth in Section 3(p) of the Disclosure
Schedule, no material contracts or other agreements exist relating to the
Acquired Assets to which any of the Seller and/or its Affiliates are a
party.
(q) INSURANCE. The Acquired Assets, other than Intellectual Property
related to the Acquired Assets, have been, and will be until the Closing
Date, covered by an insurance policy (providing property, casualty, and
Liability coverage) insuring the Acquired Assets, excluding Intellectual
Property related to the Acquired Assets and a copy of such insurance policy
is attached to Section 3(q) of the Disclosure Schedule.
19
(r) LITIGATION. Except as set forth in Section 3(r) of the Disclosure
Schedule, the Seller is not (i) subject to any outstanding Order or
hearing, relative to the Acquired Assets (including, but not limited to,
regulatory proceedings and unresolved FDA or other complaints), and/or (ii)
a party or, to the Knowledge of the Seller and each of the Shareholders,
threatened to be made a party to any Proceeding with respect to the
Acquired Assets. The Seller does not have any reason to believe that any
such Proceeding may be brought or threatened against the Seller relative to
the Acquired Assets.
(s) WARRANTIES. Except as set forth in Section 3(s) of the Disclosure
Schedule, no product or service sold, leased, or delivered by the Seller
with respect to the Acquired Assets is subject to any express guaranty,
warranty, or other indemnity made by the Seller.
(t) GUARANTIES. The Seller is not a guarantor or otherwise liable for
any Liability or obligation (including indebtedness) of any other Person
related to the Acquired Assets.
(u) EMPLOYEES.
i EMPLOYEES AVAILABLE FOR EMPLOYMENT BY THE BUYER. Section
3(u)(i) of the Disclosure Schedule sets forth all employees of the
Seller and/or their respective Affiliates who are necessary to perform
services required for the operation of the Acquired Assets as
currently conducted by the Seller whom the Seller will make available
for employment by the Buyer as of the Closing, including such
employees' compensation, positions, duties and all benefits and
entitlements including accumulated leave accrued or to accrue due as
of the Closing.
ii COMPLIANCE. Section 3(u)(ii) of the Disclosure Schedule sets
forth all executive, Key Employee, and groups of employees, that the
Seller or any of the Shareholders is aware, have plans to terminate
employment with the Seller. The Seller is not a party to or bound by
any collective bargaining agreement, nor has it experienced any
strikes, grievances, claims of unfair labor practices, or other
collective bargaining disputes. The Seller has not committed any
unfair labor practice. Neither the Seller nor any of the Shareholders
has Knowledge of any organizational effort presently being made or
threatened by or on behalf of any labor union with respect to
employees of the Seller. The Seller has complied in all material
respects with all applicable federal, state and local Laws regarding
their respective employees.
(v) EMPLOYEE BENEFITS. The Seller has no Employee Benefit Plan that
it maintains, or to which it contributes, or has any obligation to
contribute.
(w) ENVIRONMENTAL HEALTH AND SAFETY MATTERS.
i The Seller has complied in all material respects and is in
compliance in all material respects with all Environmental, Health,
and Safety Requirements.
20
ii The Seller has not done or omitted to do any act or thing in
relation to any of the Acquired Assets which will result in any
Liability being imposed on the Buyer in relation to Environmental,
Health and Safety Requirements.
iii Without limiting the generality of the foregoing, the Seller
has obtained and complied in all material respects with, and is in
compliance in all material respects with, all Permits that are
required of the Seller pursuant to Environmental, Health, and Safety
Requirements for the occupation of their facilities and the operation
of their respective businesses.
iv The Seller has not received any written or oral Notice,
report or other information regarding any actual or alleged violation
of Environmental, Health, and Safety Requirements, or any Liabilities
or potential Liabilities, including any investigatory, remedial or
corrective obligations, relating to the Seller or their respective
facilities arising under Environmental, Health, and Safety
Requirements.
v None of the following exists at any property or facility
owned or operated by the Seller related to the Acquired Assets: (1)
underground storage tanks, (2) asbestos-containing material in any
form or condition, (3) materials or equipment containing
polychlorinated biphenyls, or (4) landfills, surface impoundments, or
disposal areas.
vi The Seller has not treated, stored, disposed of, arranged
for or permitted the disposal of, transported, handled, or released
any substance, including without limitation any hazardous substance,
or owned or operated any property or facility (and no such property or
facility is contaminated by any such substance) in a manner that has
given or would give rise to Liabilities, including any Liability for
response costs, corrective action costs, personal injury, property
damage, natural resources damages or attorney fees, pursuant to any
Environmental, Health, and Safety Requirements.
vii The Seller has not assumed or undertaken any Liability,
including without limitation any obligation for corrective or remedial
action, of any other Person relating to Environmental, Health, and
Safety Requirements.
viii To the Knowledge of the Seller and each of the Shareholders,
no facts, events or conditions relating to the past or present
facilities, properties or operations of the Seller will prevent,
hinder or limit continued compliance with Environmental, Health, and
Safety Requirements, give rise to any investigatory, remedial or
corrective obligations pursuant to Environmental, Health, and Safety
Requirements, or give rise to any other Liabilities pursuant to
Environmental, Health and Safety Requirements. Complete copies of all
certificates, documents, registrations, authorizations and Permits
related to Environmental, Health, and Safety Requirements are attached
to Section 3(w) of the Disclosure Schedule.
21
(x) INVESTMENT IN SHARES.
i The Seller understands that the Shares have not been and
will not be registered under the Securities Act of 1933, as amended
(the "1933 Act"), or any applicable state securities Laws, and that
the issuance of the Shares contemplated hereby is being made in
reliance on one or more exemptions from registration under the 1933
Act and under applicable registration exemptions from state securities
Laws.
ii The Seller is acquiring the Shares for its own account, for
investment purposes only, and not with a view to any resale or
distribution in violation of the registration requirements of the 1933
Act; and will not offer, sell or otherwise transfer any of the Shares
except under circumstances which will not result in a violation of the
1933 Act and only after all other requirements set forth in this
Agreement, the Escrow Agreement and the other agreements relating to
the transactions contemplated herein and therein have been satisfied.
iii The Seller acknowledges that investment in the Shares is
highly speculative and subject to substantial risks. The Seller has
adequate means of providing for its current needs and possible
contingencies, and is able to bear the high degree of economic risk
associated with this acquisition, including, without limitation, the
possibility of the complete loss of the entire value of the Shares
during the period of time in which the Shares will be held in escrow
pursuant to the terms of the Escrow Agreement.
iv The Seller is an "accredited investor" (as such term is used
in paragraph (a) of Rule 501 of Regulation D under the 1933 Act).
v Upon the issuance of the Shares to the Seller, and until
such time as the same is no longer required hereunder or under
applicable requirements of the 1933 Act or applicable state securities
Laws, certificates representing the Shares, and all certificates
issued in exchange therefor or in substitution thereof, shall bear a
legend in substantially the following form:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"). THE HOLDER
HEREOF, BY ACCEPTING SUCH SECURITIES, AGREES FOR THE BENEFIT OF THE
ISSUER THAT SUCH SECURITIES MAY BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED ONLY (A) TO THE ISSUER, (B) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE 1933 ACT AND IN COMPLIANCE WITH
APPLICABLE STATES SECURITIES LAWS, (C) IN ACCORDANCE WITH RULE 144
UNDER THE 1933 ACT AND IN COMPLIANCE WITH ANY APPLICABLE STATE
SECURITIES LAWS, OR (D) IN ACCORDANCE WITH ANY OTHER EXEMPTION UNDER
THE 1933 ACT AND IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES
LAWS UPON THE DELIVERY OF A LEGAL OPINION, REASONABLY SATISFACTORY TO
THE ISSUER, TO THE FOREGOING EFFECT."
22
vi A The Seller has such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and
risks of acquiring the Shares and making an informed decision.
vii The Seller has received no representations, written or oral,
from the Buyer or the Parent or their respective shareholders,
officers, consultants, attorneys or agents (and their officers,
directors, employees and agents), other than those contained in this
Agreement or the other Transaction Documents. In making its decision
to acquire the Shares, the Seller has relied solely upon this
Agreement, the other Transaction Documents, and independent
investigations made by it without the assistance of the Buyer or the
Parent or any of their respective counsels, consultants or agents
(including their officers, directors, employees and agents).
viii The Seller represents and affirms that none of the following
information has ever been represented, guaranteed or warranted to the
undersigned, expressly or by implication, by any Person: (A) the
percentage of profit and/or amount of or type of consideration, profit
or loss to be realized, if any, as a result of an investment in the
Shares; or (B) the possibility that the past performance or experience
on the part of any officer, director, employee, agent or affiliate of
the Buyer or the Parent might in any way indicate or predict the
results of ownership of the Shares or the potential success of the
operations of the Buyer or the Parent.
(y) DISCLOSURE. The representations and warranties contained in this
Section 3 do not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements and
information contained in this Section 3 not misleading.
4. REPRESENTATIONS AND WARRANTIES OF THE BUYER. The Buyer represents and
warrants to the Seller and the Shareholders that the statements contained in
this Section 4 are correct and complete as of the date of this Agreement and
will be correct and complete as of the Closing Date (as though made then and as
though the Closing Date were substituted for the date of this Agreement
throughout this Section 4).
(a) ORGANIZATION OF THE BUYER. Each of the Buyer and the Parent is a
corporation duly organized, validly existing and in good standing under the
Laws of its jurisdiction of incorporation, and each has full power and
authority to own its assets and carry on its business as and in the places
where such assets are located or such business is conducted, except where
it would reasonably be expected not to have a material adverse effect on
the operations or assets of their respective businesses. Complete and
correct copies of the Buyer's and the Parent's respective Certificates of
Incorporation, including all amendments thereto as of the date hereof, and
their respective Bylaws, including all amendments thereto as of the date
hereof, have been delivered or made available to the Seller. The Buyer has
not conducted any business to date (other than in connection with its
organization and entering into this Agreement) and is not required to have
a Permit to transact business as a foreign corporation in any jurisdiction.
The Parent owns beneficially, and, as of the Closing Date, the Parent owns
of record all of the outstanding shares of the Buyer's capital stock free
and clear of all Security Interests or any restriction with respect to the
voting or disposition thereof (other than restrictions of general
applicability imposed
23
by U.S. and Singapore federal or state securities Laws), and all such
shares are duty authorized, validly issued, My paid and non-assessable.
(b) AUTHORIZATION OF TRANSACTION. Each of the Buyer and the Parent
has full power and authority to execute and deliver this Agreement and each
other Transaction Document to which it is a party and to assume and perform
its obligations hereunder and thereunder. The execution and delivery of
this Agreement and each other Transaction Document to which it is a party
by the Buyer and the Parent and the performance of their respective
obligations hereunder and thereunder have been duly authorized by all
requisite corporate action on the part of each of them (including without
limitation the adoption of this Agreement and the approval of this
transaction by the Parent, as the sole stockholder of Buyer). This
Agreement has been, and each other Transaction Document to which it is a
party will be, duly executed and delivered by the Buyer or the Parent, as
applicable, and this Agreement is, and each other Transaction Document to
which it is a party, when so executed and delivered, will be, a legally
valid and binding obligation of the Buyer and the Parent, respectively,
enforceable against each of them in accordance with their respective terms,
subject to (i) bankruptcy, insolvency, reorganization, moratorium or other
similar Laws now or hereafter in effect relating to creditors' rights
generally, and (ii) equitable principles limiting the availability of
specific performance, injunctive relief and other equitable remedies. No
Consent of, or Notice to, any Person is required as to the Buyer or the
Parent in connection with its execution and delivery of this Agreement or
any other Transaction Document to which it is a party, or the performance
of its obligations hereunder or thereunder, or the consummation of this
transaction.
(c) NON-CONTRAVENTION. The execution and delivery of this Agreement
by the Buyer do not, and the execution and delivery of each other
Transaction Document by the Buyer or the Parent and the performance by the
Buyer and the Parent of their respective obligations hereunder and
thereunder, as applicable, will not, violate any applicable Law or any
provision of their respective Certificates of Incorporation or Bylaws and
do not and will not conflict with or result in any breach of any condition
or provision of, or constitute a default under, or create or give rise to
any adverse right of termination or cancellation by, or excuse the
performance of, any other Person, or result in the creation or imposition
of any Security Interest upon either of them or any of their respective
assets or the acceleration of the maturity or date of payment or other
performance of any obligation of either of them, other than any violation,
conflict, breach, default, right of termination or cancellation, excuse of
performance, Security Interest or acceleration that, individually or in the
aggregate, would not reasonably be expected to have a material adverse
effect on the Buyer or the Parent or its business, assets or financial
condition.
(d) NO PROCEEDING. No Proceeding is pending, or, to the Buyer's or
the Parent's Knowledge, threatened against or affecting the business,
assets or operations of the Buyer or the Parent in which an unfavorable
Order would prohibit, invalidate or make unlawful, in whole or in part,
this Agreement or any other Transaction Document, or the carrying out of
the provisions hereof or thereof or the transactions contemplated hereby or
thereby.
24
(e) NO ORDER. There is no Order enjoining the Buyer or the Parent in
respect of, or the effect of which is to prohibit or curtail their
performance of, their respective obligations under this Agreement or any
other Transaction Document.
(f) SECURITIES FILINGS. To the Buyer's Knowledge, the Parent has
timely filed all reports, forms, statements and documents required to be
filed by it under the 1933 Act, the Securities and Exchange Act of 1934, as
amended, and any applicable rules of the Nasdaq Stock Market, Inc., all of
which reports, forms, statements and other documents were, when filed, in
material compliance with applicable Laws. When filed, none of such reports,
forms, statements or other documents contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except where it
would not reasonably be expected to have a material adverse effect on the
business, assets or financial condition of the Parent.
(g) SHARES. The Shares have been duly authorized and, when issued in
accordance with the provisions hereof, shall be validly issued, fully paid
and nonassessable.
(h) BROKERS' FEES. Neither the Buyer nor the Parent has employed or
engaged any Person to act as a broker, finder or other, intermediary in
connection with the transactions contemplated hereby, and no Person is
entitled to any fee, commission or other compensation relating to any such
employment or engagement by the Buyer or the Parent, and neither the Seller
nor any of the Shareholders shall have any Liability whatsoever to any such
broker, finder or intermediary.
(i) DISCLOSURE. The representations and warranties contained in this
Section 4 do not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements and
information contained in this Section 4 not misleading.
5. PRE-CLOSING COVENANTS. The Parties agree as follows with respect to
the period between the execution of this Agreement and the Closing.
(a) GENERAL. Save to the extent that an absolute obligation is herein
imposed on such Party with respect to such matter, each of the Parties will
use its reasonable best efforts to take all action and to do all things
necessary or proper in order to consummate and make effective the
transactions contemplated by this Agreement (including satisfaction, but
not waiver, of the Closing conditions set forth in Section 6 below).
(b) NOTICES AND CONSENTS. Save to the extent that an absolute
obligation is herein imposed on such Party with respect to such matter,
each of the Parties will give any Notices to third parties, and will use
its reasonable best efforts to obtain any Consents, necessary to effect
this transaction, as set forth in Section 6(a)(iv). Each of the Parties
will give any Notices, sign and make available such applications, forms or
documents, and use its reasonable best efforts to obtain the Consent of any
Governmental Authority in connection with the matters referred to in
Sections 3 and 4 above. Without limiting the generality of the foregoing,
each of the Parties will give any further Notices, sign and make available
such applications, forms or documents,
25
that may be necessary, proper, or advisable in connection therewith and the
Parties will obtain any necessary Consents from banks or other financial
institutions with respect to the transactions contemplated herein.
(c) OPERATION OF THE ACQUIRED ASSETS. The Seller will not engage in
any practice, take any action, or enter into any transaction outside the
Ordinary Course of Business, with respect to the Acquired Assets and it
will not sell, transfer, assign, pledge or grant any rights with respect to
the Acquired Assets, other than in the Ordinary Course of Business. The
Seller and the Shareholders will not sell, transfer, assign, pledge or
grant any rights with respect to any shares of the Seller.
(d) PRESERVATION OF BUSINESS. The Seller and the Shareholders will
use their reasonable best efforts to keep the Acquired Assets substantially
intact, including its present use and operation thereof, and to maintain
the Seller's relationships with licensors, suppliers, customers, and
employees related to the Acquired Assets in the Ordinary Course of
Business.
(e) FULL ACCESS. The Seller will permit, and the Shareholders will
ensure that the Seller permits, representatives of the Buyer to have full
access at all reasonable times, and in a manner so as not to interfere with
the normal business operations of the Seller, to all of the premises,
properties, personnel, books, records (including Tax records), contracts,
and documents of the Seller pertaining to the Acquired Assets.
(f) NOTICE OF DEVELOPMENTS. Each Party will give prompt written
Notice to the other Party of any material adverse development causing a
breach of any of its own representations and warranties in Sections 3 and 4
above. No disclosure by any Party pursuant to this Section 5(f), however,
shall be deemed to amend or supplement this Agreement or the Exhibits
hereto or to prevent or cure any misrepresentation, breach of warranty, or
breach of covenant.
(g) EXCLUSIVITY. Until July 31, 2002, or until such later date agreed
upon by the Parties in the event that the Closing Date is extended pursuant
to Section 2(d) above, the Seller and the directors, Key Employees,
officers and shareholders of the Seller, including the Shareholders, shall
not (i) enter into any agreement, understanding or arrangement relating to
any Acquisition Proposal (as defined below); (ii) consider, or engage in
any discussions or negotiations relating to any Acquisition Proposal; (iii)
provide any information regarding the Seller, the Shareholders or their
respective businesses or operations to any party (other than to
representatives of the Buyer and as required by any regulatory authority)
except in the Ordinary Course of Business; (iv) solicit or encourage the
submission of any Acquisition Proposal; or (v) permit any representative or
Affiliate of the Seller or their respective shareholders including the
Shareholders, to do any of the foregoing. The term "Acquisition Proposal,"
as used in this Section 5(g), refers to any proposal, plan, agreement,
understanding or arrangement contemplating (i) any merger, consolidation,
reorganization, recapitalization or similar transaction involving the
Seller; (ii) any transfer or issuance of any shares of the Seller; (iii)
any transfer of any material asset of the Seller save in the Ordinary
Course of Business; (iv) any sale, transfer or encumbrance of any shares of
the Seller by their respective shareholders, including the Shareholders; or
(v) any transaction that may reasonably be considered to be materially
inconsistent with any of the transactions contemplated by this
26
Agreement or that may have a Material Adverse Effect. In the event that the
Seller, the directors, Key Employees, officers or shareholders of the
Seller, including the Shareholders, breach the provisions of this Section
5(g), the Seller and the Shareholders shall be jointly and severally
obliged, immediately upon demand, and in any event within five business
days after demand, to pay, or cause the breaching party or parties to pay,
to the Buyer a fee in the amount of One Million Five Hundred Thousand US
Dollars (US$ 1,500,000.00). Such fee shall serve as liquidated damages and
the exclusive remedy to the Buyer in the event of a breach of this Section
5(g).
(h) CONFIDENTIALITY. The Buyer and the Parent acknowledge that
certain information relating to or concerned with the business and affairs
of the Seller, including without limitation all non-publicly available
trade rights, product information, customer and supplier lists, marketing
and sales data, personnel and financing and Tax matters is proprietary to
the Seller, and that its confidentiality is absolutely essential to the
operation of the Seller's business. Until the Closing, all of such
information shall be subject PRO TANTO to the same terms and conditions as
set forth in Section 8(d) below.
(i) REGISTRATION STATEMENT. Within eight (8) months of the Closing
Date, the Parent shall prepare and file with the Securities and Exchange
Commission ("SEC") a registration statement on Form S-3 covering the Shares
(or other form suitable for the registration of such Shares under the 1933
Act), which Form S-3 or other applicable form ("Registration Statement")
will comply with the applicable provisions of the 1933 Act and the
applicable rules thereunder. The Parent shall use its reasonable best
efforts to file with the SEC such additional documents and furnish the SEC
such additional information as the SEC may request or otherwise respond to
the SEC's comments, if any, on the Registration Statement and any such
other documents or information. The Parent shall make such changes in the
Registration Statement as are appropriate based on the SEC's comments, if
any, and shall use its reasonable best efforts to cause the Registration
Statement to become effective under the Securities Act on or as soon as
practicable after the expiration of the Escrow Agreement. The Parent shall,
in its discretion, provide to the Shareholders a draft of the Registration
Statement, and shall advise them of any information to be furnished to the
SEC, at a reasonably sufficient time in advance in order to allow the
Shareholders to review the same and give to the Parent any comments or
suggestions they may have thereon. The Parent shall also furnish to the
Shareholders copies of any correspondence to or from the SEC relating to
the Registration Statement and advise them of the SEC's comments, if any,
thereon, and shall confer with the Shareholders as to the appropriate
response thereto. The Shareholders shall cooperate with the Parent in
connection with the preparation and filing of the Registration Statement
and in responding to any SEC comments thereon, and shall provide to the
Parent, at the Parent's request, any information required to be included in
the Registration Statement (including in any amendment or supplement
thereto) in accordance with the 1933 Act and so that the Registration
Statement shall not at the time it becomes effective contain any
misstatement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading. The Parent shall
also use its reasonable best efforts to register and qualify the Shares,
and to maintain such registration or qualification for so long as the
Registration Statement remains effective, under applicable state legal
requirements, including state blue-sky
27
Laws, for offer and resale to the public. The Buyer and the Seller shall
share the filing fee(s), if any, applicable to the filing of the
Registration Statement with the SEC and obtaining any other registrations
or qualifications hereunder.
(j) UNDERTAKINGS OF THE SELLER RELATING TO EMPLOYEES.
i The Buyer shall not be bound to in fact employ or provide
offers of employment to any and all employees of the Seller, save as
determined by the Buyer at its absolute discretion. The procedures for
providing any offers of employment to selected employees and the
corresponding termination of such employment by the Seller shall be
notified by the Buyer.
ii The Seller will be responsible for and bear all salaries and
other benefits and entitlement due to, and all Liabilities and
obligations (including undischarged benefits and accumulated leave)
due to or owing to, all employees of the Seller as of the Closing,
whether arising out of the employment or the termination of employment
of such employees, including where applicable such salaries,
entitlements, Liabilities and obligations (including undischarged
benefits and accumulated leave) that the Buyer is obliged by Law to
assume by reason of continuity of employment or any operation of Law
or statutory requirement or otherwise. In the event that such
salaries, entitlements, Liabilities and obligations (including
undischarged benefits and accumulated leave) are assumed by the Buyer
as aforesaid, then the Seller and the Shareholders shall jointly and
severally indemnify the Buyer for the same and pay to the Buyer on
demand the full amount of the actual and contingent exposure of the
Buyer.
iii If the Buyer does not seek to employ any employee whose
employment is deemed transferred by reason of any operation of Law or
statutory requirement, the Seller undertakes that the Seller shall
take proper steps to terminate the employment of each such employee,
or offer alternative employment to such employees (accepted by the
employees), which termination or said alternative employment shall
take effect prior to Closing and in a manner that will not result in
any Liability being incurred on the part of the Buyer, failing which
the Seller shall indemnify the Buyer for the continued employment of
each such employee by the Buyer after Closing, for the matters set
forth in Section 5(j)(ii) above and for any Liability incurred by the
Buyer in terminating any such employment after Closing.
(k) UNDERTAKINGS OF THE SELLER RELATING TO LEASEHOLD PROPERTY.
i The Seller shall furnish the documents of title of the
Leasehold Property to the Buyer within three (3) days from the date of
the execution of this Agreement, subject to an undertaking from the
Buyer's solicitor to return the documents of title at any time on
demand, without any lien or claim.
ii The Seller shall on or before Closing (a) discharge the
outgoings of the Leasehold Property down to and including the date
fixed for Closing; (b) discharge all property tax, including
surcharge, down to and
28
including the date fixed for Closing, whether the tax is levied or
increased before, on or after Closing; and (c) discharge all rentals
and all other monies, fees and interest payable to the Housing and
Development Board of Singapore and quit rent in respect of the
Leasehold Property down to and including the date fixed for Closing.
iii The Buyer shall after the date of Closing discharge all
outgoings and will be entitled to all the rentals and profits.
iv Where necessary, the outgoings, Tax, payments, rentals and
profits are to be apportioned between the Seller and the Buyer.
v The Seller and the Shareholders shall jointly and severally
ensure that XXXX XX Laboratory Pte Ltd, Alliance Technology And
Development Limited and XXXX Far East Pte Ltd shall comply with the
terms of the respective Deeds of Surrender executed or to be executed
by them and described in Section 2(e) above.
vi The provisions of Sections 3(l) and 5(k)(i) to (v) shall not
merge in the transfer/assignment of the Leasehold Property.
(1) UNDERTAKINGS OF THE BUYER RELATING TO LEASEHOLD PROPERTY. The
Buyer is buying the Leasehold Property with full knowledge and notice of its
actual state and condition as at the date of this Agreement as regards access,
repair, light and air, and the Buyer shall not be entitled to raise any
objection in respect thereof.
6. CONDITIONS TO OBLIGATION TO CLOSE.
(a) CONDITIONS TO OBLIGATION OF THE BUYER. The obligation of the
Buyer to consummate the transactions to be performed by it in connection
with the Closing is subject to satisfaction of the following conditions:
i the representations and warranties set forth in Section 3
above shall be true and correct in all material respects at and as of
the Closing Date;
ii the Seller shall have performed and complied with all of its
covenants hereunder in all material respects through the Closing Date;
iii no Proceeding shall be pending before any court or
quasijudicial or administrative agency of any federal, state, local,
or foreign jurisdiction wherein an unfavorable injunction, Order, or
charge would (A) prevent consummation of any of the transactions
contemplated by this Agreement, (B) cause any of the transactions
contemplated by this Agreement to be rescinded following consummation,
or (C) affect adversely the right of the Buyer to own or to operate
the Acquired Assets (and no such injunction, Order or charge shall be
in effect);
iv the Seller and the Buyer shall have received, and there
remains in full force and effect as of Closing, all material Consents
that may be required for the proper and effective transfer of the
Acquired Assets and the entry into and implementation, of the terms of
this Agreement, and all material
29
permits, licenses, authorizations and approvals that may be required
for the use and operation of the Acquired Assets as of and further to
Closing as the same has been used and operated by the Seller, all on
terms and conditions approved by the Buyer in its discretion; such
Consents, permits, licenses, authorizations and approvals shall
include the Consent of the Housing and Development Board of Singapore
for the transfer of the Leasehold Interest to the Buyer; the Consent
of any Person having any Security Interest in respect of any of the
Acquired Assets for the transfer of the Acquired Assets in the manner
contemplated by this Agreement; the issue of the Certificate of
Registration of Factory in favour of the Buyer for such part of the
Leasehold Property to be used by the Buyer or any Person as factory or
manufacturing facilities; and the issue of the use and storage of
hazardous materials permit in favour of the Buyer pursuant to the
Environmental Pollution Control Act (Singapore Statutes);
v the Seller shall have delivered to the Buyer a certificate
to the effect that each of the conditions specified above in Section
6(a)(i)-(iv) is satisfied in all respects;
vi the Buyer shall have executed and entered into agreements
with Xxxxxxx X. Xxxxxx and/or his respective Affiliates for the
assignment and/or license of Intellectual Property Rights relevant to
the business to be carried on by the Buyer, which agreements shall be
reasonably acceptable to the Buyer;
vii the Buyer shall have received from the Seller a duly
executed copy of the agreement entered into between the Seller and
Alliance Technology And Development Limited acting through and with
the authority of its judicial manager and/or such other Persons as may
be appropriate in the circumstances ("judicial agreement") for the
sale of the entire share capital of the Company to the Shareholders or
the Affiliates of the Shareholders, whereby the effect of which will
give the Seller good and marketable title to the share capital of the
Company, and will give the Seller, and consequently the Buyer, good
and marketable title to the Acquired Assets, unfettered by any rights
or interest or adverse claims of any Person;
viii the Buyer shall have successfully negotiated and entered
into and executed appropriate agreements ("Banking Agreements") with
bankers acceptable to the Buyer (which said bankers may include the
Development Bank of Singapore Limited, as the holders of an existing
Security Interest in respect of the Leasehold Property and other
Acquired Assets) whereby the Buyer shall as of Closing be able to
refinance the Liabilities (or such part thereof as may be agreed to be
assumed by the Buyer) presently secured by the Leasehold Property
and/or other Acquired Assets, on terms and conditions that are
reasonably acceptable to the Buyer in its discretion, and take good
and marketable title to the Acquired Assets (including the Leasehold
Property) pursuant to this Agreement with the Consent of the relevant
bankers subject only to any Security Interest created by the Banking
Agreements;
ix the closing of the judicial agreement and full drawdown and
availability under the Banking Agreements immediately before or
simultaneously with Closing;
30
x the title of the Seller to the Leasehold Property is in
order, and shall be in order as of Closing, and is properly deduced,
and shall be free of any Security Interest, save for any Security
Interest arising under the Banking Agreements, or for any Security
Interest which shall be discharged by the Banking Agreements
immediately prior to or simultaneously with Closing;
xi the replies to the usual requisitions sent by the Buyer's
solicitors to any and all Governmental Authority and results of
applications for the road and drainage interpretation plans relating
to the Leasehold Property being satisfactory to the Buyer, provided
that "satisfactory" shall be interpreted in accordance with the laws
and practices of Singapore;
xii no Government Authority shall have acquired or served notice
of any intention to acquire the Leasehold Property or the Leasehold
Interest or any part thereof on or before Closing;
xiii no notice of acquisition or intended acquisition of or
affecting the Leasehold Property or the Leasehold Interest shall have
been issued at any time before or at Closing;
xiv the Seller shall have secured the written consents or
binding waivers of the Housing and Development Board of Singapore to
all prior breaches of any lease or agreement to lease extended by the
Housing Development Board of Singapore in respect of the Leasehold
Property by reason of any subleases extended or purported to be
extended by the Seller to any Person, and further the written consent
of the Housing Development Board of Singapore to the continuation of
such sublease arrangements;
xv all actions to be taken by the Seller or any of the
Shareholders in connection with consummation of the transactions
contemplated hereby and all certificates, opinions, instruments, and
other documents required to effect the transactions contemplated
hereby will be reasonably satisfactory in form and substance to the
Buyer; and
xvi delivery and completion in every respect of all matters to
be performed by the Seller or any of the Shareholders and described in
Section 2(e) in respect of Closing.
The Buyer may waive any condition specified in this Section 6(a) if it
executes a writing so stating at or prior to the Closing.
(b) CONDITIONS TO OBLIGATION OF THE SELLER. The obligation of the
Seller to consummate the transactions to be performed by it in connection
with the Closing is subject to satisfaction of the following conditions:
i the representations and warranties set forth in Section 4
above shall be true and correct in all material respects at and as of
the Closing Date;
ii the Buyer shall have performed and complied with all of its
covenants hereunder in all material respects through the Closing Date;
31
iii no Proceeding shall be pending or threatened before any
court or quasi-judicial or administrative agency of any federal,
state, local, or foreign jurisdiction or before any arbitrator wherein
an unfavorable injunction, Order or charge would (A) prevent
consummation of any of the transactions contemplated by this
Agreement, or (B) cause any of the transactions contemplated by this
Agreement to be rescinded following consummation (and no such
injunction, Order or charge shall be in effect);
iv the Seller shall have entered into the judicial agreement;
v the Buyer shall have delivered to the Seller a certificate
to the effect that each of the conditions specified above in Section
6(b)(i)-(iii) is satisfied in all respects;
vi the Buyer shall have received from the Parent a contribution
in the amount of Two Million Singapore Dollars (SGD 2,000,000.00);
vii the loan repayment referred to in Section 8(l) shall have
been made;
viii all actions to be taken by the Buyer in connection with
consummation of the transactions contemplated hereby and all
certificates, opinions, instruments, arid other documents required to
effect the transactions contemplated hereby will be reasonably
satisfactory in form and substance to the Seller; and
ix delivery and completion in every respect of all matters to
be performed by the Buyer and described in Section 2(e) in respect of
Closing.
The Seller may waive any condition specified in this Section 6(b) if
it executes a writing so stating at or prior to the Closing.
7. TERMINATION.
(a) TERMINATION OF AGREEMENT. Either of the Parties may terminate
this Agreement as provided below:
i the Buyer may terminate this Agreement by giving written
Notice to the Seller and the Shareholders at any time prior to the
Closing (A) in the event that any of the Seller or the Shareholders
has breached any material representation, warranty, or covenant
contained in this Agreement in any material respect, the Buyer has
notified the Seller and the Shareholders of the breach, and the breach
has continued without cure for a period of fifteen (15) days after the
Notice of breach; (B) if the Closing shall not have occurred on or
before July 31, 2002 (or such later date, if extended pursuant to
Section 2), by reason of the failure of any condition precedent under
Section 6(a) hereof (unless the failure results primarily from the
Buyer itself breaching any representation, warranty, or covenant
contained in this Agreement); and
ii the Seller may terminate this Agreement by giving written
Notice to the Buyer at any time prior to the Closing (A) in the event
the Buyer
32
has breached any material representation, warranty, or covenant
contained in this Agreement in any material respect, the Seller has
notified the Buyer of the breach, and the breach has continued without
cure for a period of fifteen (15) days after the Notice of breach, or
(B) if the Closing shall not have occurred on or before July 31, 2002
(or such later date, if extended pursuant to Section 2), by reason of
the failure of any condition precedent under Section 6(b) hereof
(unless the failure results primarily from any of the Seller or the
Shareholders breaching any representation, warranty, or covenant
contained in this Agreement).
(b) EFFECT OF TERMINATION. Notwithstanding the termination of this
Agreement, the confidentiality provisions of this Agreement shall survive.
8. POST-CLOSING COVENANTS. The Parties agree as follows with respect to
the period following the Closing:
(a) GENERAL.
i In case for a period of six (6) months after the Closing any
further action is necessary or desirable to carry out the purposes of
Agreement, each of the Parties will take such further action
(including the execution and delivery of such further instruments and
documents) as any other Party reasonably may request, all at the sole
cost and expense of the requesting Party; PROVIDED, HOWEVER, that the
Seller and the respective Shareholders shall provide the Buyer, free
of charge, with such assistance, technical and otherwise, as the Buyer
may reasonably request in order to facilitate an efficient transition
of the Acquired Assets and Assumed Liabilities from the Seller to the
Buyer, provided that the same should not unduly interfere with the
business commitments of the Seller or the respective Shareholders, as
the case may be.
ii The Seller acknowledges and agrees that, from and after the
Closing, the Seller shall provide the Buyer with all original
documents of title relating to the Acquired Assets and copies of all
documents, books, records (including Tax records), agreements and
financial data, directly relating to the Acquired Assets. In any
event, the Seller shall, after Closing, retain and provide the Buyer
with reasonable access to the originals of all such documents, books,
records (including Tax records), agreements and financial data.
(b) LITIGATION SUPPORT. In the event and for so long as any Party
actively is contesting or defending against any Proceeding, charge,
complaint, claim, or demand in connection with (i) any transaction
contemplated under this Agreement, or (ii) any fact, situation,
circumstance, status, condition, activity, practice, plan, occurrence,
event, incident, action, failure to act, or transaction on or prior to the
Closing Date involving the Acquired Assets, the other Party will cooperate
with the contesting or defending Party and his or its counsel in the
contest or defense, make available his or its personnel, and provide such
testimony and access to his or its books and records as shall be necessary
in connection with the contest or defense, all at the sole cost and expense
of the contesting or defending Party (unless the contesting or defending
Party is entitled to indemnification therefore under Sections 8(h), 8(i),
or 8(j) below).
33
(c) TRANSITION. The Seller and the Shareholders will not take any
action that is designed or intended to have the effect of discouraging any
carrier, supplier, lessor, licensor, customer, or other business associate
of the Seller from maintaining the same business relationships with the
Buyer after the Closing as it maintained with the Seller prior to the
Closing. The Seller and the Shareholders will refer all inquiries of
customers relating to the Acquired Assets to the Buyer from and after the
Closing.
(d) CONFIDENTIALLY. The Seller and the Shareholders shall treat and
hold as such all of the Confidential Information, refrain from using any of
the Confidential Information except in connection with or as permitted by
this Agreement. In the event that the Seller or any of the Shareholders is
requested or required (by oral question or request for information or
documents in any. Proceeding, interrogatory, subpoena, civil investigative
demand, or similar process) to disclose any Confidential Information, then
the Seller or the relevant Shareholder, as the case may be, will notify the
Buyer promptly of the request or requirement so that the Buyer may seek an
appropriate protective Order or waive compliance with the provisions of
this Section 8(f). If, in the absence of a protective Order or the receipt
of a waiver hereunder, the Seller or the relevant Shareholder is, on the
advice of counsel, compelled to disclose any Confidential Information to
any tribunal or else stand liable for contempt, the Seller or such
Shareholder, as the case may be, may disclose the Confidential Information
to the tribunal; PROVIDED, HOWEVER, that the Seller or the relevant
Shareholder, as the case may be, shall use its reasonable best efforts to
obtain, at the reasonable request of the Buyer, an Order or other assurance
that confidential treatment will be accorded to such portion of the
Confidential Information required to be disclosed as the Buyer shall
designate.
(e) COVENANT NOT TO COMPETE.
The Seller and the Shareholders jointly and severally undertake that for a
period of three (3) years from and after the Closing Date each of them
(other than Mr Xxxxxxx Xxxxxx) shall not, and shall not attempt to,
directly or indirectly, own an interest in, operate, join, control,
participate in or be retained as an officer, director, employee, agent,
consultant, independent contractor, partner, shareholder, investor or
principal of, any individual, person or entity engaged in a business where
the majority of the sales of such business are from the development,
design, manufacture and/or sale of contact lenses in any part of the world
where the Buyer, Parent or their respective Affiliates are then doing
business directly or indirectly through a subsidiary, joint venture,
distributorship or other otherwise save as excepted below:
i IVC may design, develop, manufacture and/or sell any contact
lenses made by lathing;
ii IVC may sell any contact lenses in any part of Asia
(excluding Japan);
iii IVC may design, develop and/or manufacture any contact
lenses in any part of Asia (excluding Japan), other than contact
lenses made by moulding;
iv IVC may design, develop, manufacture and/or sell
non-blisterpacked contact lenses in Europe; and
34
v the Seller (other than IVC) and the Shareholders may
participate or hold an interest in IVC,
("APA Non-Compete Covenant"), provided, however, that
a. no owner of less than one percent (1%) of the outstanding stock
of any publicly traded corporation shall be deemed to be engaged solely by
reason thereof in any business activity in contravention hereof, and
b. if the final judgment of a court of competent jurisdiction
declares that any term or provision of this Section 8(e) is invalid or
unenforceable, the Parties agree that the court making the determination of
invalidity or unenforceability shall have the power to reduce the scope,
duration, or area of the term or provision, to delete specific words or
phrases, or to replace any invalid or unenforceable term or provision with
a term or provision that is valid and enforceable and that comes closest to
expressing the intention of the invalid or unenforceable term or provision,
and this Agreement shall be enforceable as so modified after the expiration
of the time within which the judgment may be appealed.
The Seller and the Shareholders jointly and severally undertake that
Mr Xxxxxxx Xxxxxx shall comply with any non-compete covenants that may be
extended by him in any employment contract that he makes with the Buyer
provided that if for any reason whatsoever such non-compete covenants are
void or unenforceable or has expired, then the APA Non-Compete Covenant
herein shall be apply to, and be enforceable against the Seller and all
Shareholders (including Mr Xxxxxxx Xxxxxx), jointly and severally.
(f) SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All of the
representations and warranties of the Seller and/or of the Shareholders
contained in this Agreement shall survive the Closing and shall continue in
full force and effect for a period of three (3) years thereafter, with the
exception of any representations or warranties regarding Taxes of the
Seller and/or of the Shareholders, which shall survive the Closing and
continue in full force and effect for a period of seven (7) years
thereafter. All of the representations and warranties of the Buyer
contained in this Agreement shall survive the Closing and shall continue in
full force and effect for a period of two (2) years thereafter.
(g) THIRD PARTY CONSENTS. The Seller and each of the Shareholders
shall use their respective best efforts to procure, and assist the Buyer in
procuring any Consent required in connection with the transactions
contemplated by this Agreement and not procured prior to the Closing Date.
(h) INDEMNIFICATION PROVISIONS FOR BENEFIT OF THE BUYER.
i In the event any Seller or any of the Shareholders breaches
any of its representations, warranties, undertakings and covenants
contained in this Agreement, and, if there is an applicable survival
period pursuant to Section 8(f) above, provided that the Buyer makes a
written claim for indemnification against the relevant Party or
Parties within such survival period, then the Seller and the
Shareholders jointly and severally agree to indemnify the Buyer from
and against the entirety of any Adverse Consequences the Buyer may
35
suffer through and after the date of the claim for indemnification
resulting from, arising out of, relating to, in the nature of, or
caused by the breach (or the alleged breach).
ii The Seller and the Shareholders jointly and severally agree
to indemnify the Buyer from and against the entirety of any Adverse
Consequences the Buyer may suffer resulting from, arising out of,
relating to, in the nature of, or caused by any Liability of any
Seller or any of the Shareholders, other than an Assumed Liability.
iii The Seller and the Shareholders jointly and severally agree
to indemnify the Buyer from and against the entirety of any Adverse
Consequences the Buyer may suffer resulting from, arising out of,
relating to, in the nature of, or caused by any Liability for Taxes of
any Seller related to the Acquired Assets.
iv The Seller and the Shareholders jointly and severally agree
to indemnify the Buyer from and against the entirety of any Adverse
Consequences the Buyer and its shareholders may suffer resulting from,
arising out of, relating to, in the nature of, or caused by the
operations of the Seller or the Acquired Assets prior to the Closing.
v The Seller and the Shareholders jointly and severally agree
to indemnify the Buyer from and against the entirety of any Adverse
Consequences the Buyer may suffer resulting from, arising out of,
relating to, in the nature of, or caused by any Liability of the
Seller in relation to the termination of any of the employees of the
Seller in their capacity as employees of the Seller who are not
employed by the Buyer.
vi None of the Seller nor any Shareholder shall not have any
Liability to the Buyer for any Adverse Consequences set forth in this
Section 8(h) to the extent that such Adverse Consequences are covered
by insurance or third party indemnities in favour of the Buyer
provided that the Buyer shall not be required to commence any
Proceeding in connection with the insurance or against the third party
to collect any such amount. Further, if the Buyer does not receive
such amount on such timing as it may find acceptable and does not
elect to commence a Proceeding to collect such amount, then,
notwithstanding the aforesaid, the Seller and the Shareholders shall
be jointly and severally liable to the Buyer for the said Adverse
Consequence, provided that if the Seller and the Shareholders shall
make, full payment of the Liability in respect of such Adverse
Consequence to the Buyer, the Buyer shall assign (if such right is
assignable) its right to collect such amount in respect of the
insurance or from the third party to the Seller.
vii Notwithstanding anything contained herein to the contrary,
none of the Seller nor any of the Shareholders shall have any
Liability to the Buyer as a result of any breach of any
representation, warranty or covenant, to the extent that the Buyer was
informed in writing by the Seller that such representation, warranty
or covenant was incorrect prior to the Closing Date, except when such
breach is the result of fraud or willful misconduct.
36
(i) INDEMNIFICATION PROVISIONS FOR BENEFIT OF THE SELLER AND THE
SHAREHOLDERS.
i In the event the Buyer breaches any of its representations,
warranties, undertakings and covenants contained in this Agreement,
and, if there is an applicable survival period pursuant to Section
8(f) above, provided that the Seller and the Shareholders make a
written claim for indemnification against the Buyer within such
survival period, then the Buyer agrees to indemnify the Seller and the
Shareholders from and against the entirety of any Adverse Consequences
the Seller and the Shareholders may suffer through and after the date
of the claim for indemnification resulting from, arising out of,
relating to, in the nature of, or caused by the breach.
ii The Buyer agrees to indemnify the Seller and the
Shareholders from and against the entirety of any Adverse Consequences
the Seller and the Shareholders may suffer resulting from, arising out
of, relating to, in the nature of, or caused by the Buyer's operation
of the Acquired Assets after the Closing.
iii The Buyer shall not have any Liability to the Seller or any
of the Shareholders for any Adverse Consequences set forth in this
Section 8 to the extent that such Adverse Consequences are covered by
insurance or third party indemnities in favor of the Seller or such
Shareholder provided that none of the Seller or such Shareholder shall
be required to commence any Proceeding in connection with the
insurance or against the third party to collect any such amount.
Further, if the Seller or such Shareholder does not receive such
amount on such timing as it may find acceptable and does not elect to
commence a Proceeding to collect such amount, then, notwithstanding
the aforesaid, the Buyer shall be liable to the Seller and the
Shareholders for the said Adverse Consequence, provided that if the
Buyer shall make fall payment of the Liability in respect of such
Adverse Consequence to the Seller and the Shareholders, the Seller and
the Shareholders shall (if such rights are assignable) assign their
rights to collect such amount in respect of the insurance or from the
third party to the Buyer.
iv Notwithstanding anything contained herein to the contrary,
the Buyer shall have no Liability to the Seller or the Shareholders as
a result of any breach of any representation, warranty or covenant, to
the extent that the Seller or the Shareholders were informed in
writing by the Buyer that such representation, warranty or covenant
was incorrect prior to the Closing Date, except where such breach is
the result of fraud or willful misconduct.
(j) MATTERS INVOLVING THIRD PARTIES.
i If any third party shall notify any Party (the "Indemnified
Party") with respect to any matter (a "Third Party Claim") which may
give rise to a claim for indemnification against any other Party (the
"Indemnifying Party") under this Section 8, then the Indemnified Party
shall promptly notify each Indemnifying Party thereof in writing;
PROVIDED, HOWEVER, that no delay on the part of the Indemnified Party
in notifying any Indemnifying Party shall
37
relieve the Indemnifying Party from any obligation hereunder unless
(and then solely to the extent) the Indemnifying Party thereby is
prejudiced.
ii Any Indemnifying Party will have the right to defend the
Indemnified Party against the Third Party Claim with counsel of its
choice reasonably satisfactory to the Indemnified Party so long as (A)
the Indemnifying Party notifies the Indemnified Party in writing
within fifteen (15) days after the Indemnified Party has given Notice
of the Third Party Claim that the Indemnifying Party will indemnify
the Indemnified Party from and against the entirety of any Adverse
Consequences the Indemnified Party may suffer resulting from, arising
out of, relating to, in the nature of, or caused by the Third Party
Claim, (B) the Indemnifying Party provides the Indemnified Party with
evidence reasonably acceptable to the Indemnified Party that the
Indemnifying Party will have the financial resources to defend against
the Third Party Claim and fulfill its indemnification obligations
hereunder, (C) the Third Party Claim involves only money damages and
does not seek an injunction or other equitable relief, (D) settlement
of, or an adverse judgment with respect to, the Third Party Claim is
not, in the good faith judgment of the Indemnified Party, likely to
establish a precedential custom or practice materially adverse to the
continuing business interests of the Indemnified Party, and (E) the
Indemnifying Party conducts the defense of the Third Party Claim
actively and diligently.
iii So long as the Indemnifying Party is conducting the defense
of the Third Party Claim in accordance with Section 8(j)(i) and (ii)
above, (A) the Indemnified Party may retain separate co-counsel at its
sole cost and expense and participate in the defense of the Third
Party Claim, (B) the Indemnified Party will not consent to the entry
of any judgment or enter into any settlement with respect to the Third
Party Claim without the prior written Consent of the Indemnifying
Party (not to be withheld unreasonably), and (C) the Indemnifying
Party will not consent to the entry of any judgment or enter into any
settlement with respect to the Third Party Claim without the prior
written Consent of the Indemnified Party (not to be withheld
unreasonably).
(k) NATURE AND LIMITATIONS ON INDEMNIFICATION OBLIGATIONS. The
obligations of the respective Parties comprising the Seller and the
Shareholders under Sections 8(h) and 80) are joint and several.
Notwithstanding the provisions of Section 8(h), through 80) above, none of
the Parties shall be obligated to indemnify or pay damages to any other
Party or Parties, as the case may be, from and against any Adverse
Consequences arising from or related to this Agreement unless and until
such Adverse Consequences arising from or related to this Agreement exceed
One Hundred Thousand US Dollars (US$ 100,000.00); PROVIDED, HOWEVER, that
the aggregate amount required to be paid by any Party in order to indemnify
or pay damages to any other Party or Parties, as the case may be, from and
against any Adverse Consequences arising from or related to this Agreement
shall not exceed Five Million US Dollars (US$ 5,000,000.00).
Notwithstanding the foregoing, any claims brought by a Party against
another Party or Parties for fraud or willful misconduct shall not be
subject to the foregoing limitations.
(L) REPAYMENT OF LOANS. At the Closing, subject to the terms and
conditions of this Agreement, the Buyer shall repay any loans made to any
of the
38
Seller by Mr. Sinduchajana Sulistyo after January 31, 2002 up to an
aggregate amount equal to One Million Singapore Dollars (SGD1,000,000.00).
(m) LICENSE RIGHTS. The Seller agrees that notwithstanding anything
to the contrary herein, the Seller shall be deemed on Closing to have
extended to the Buyer an irrevocable, unconditional, perpetual and royalty
free license to use for any lawful purpose, any and all trademarks, service
marks, logos, tradenames, and corporate names, together with all
translations, adaptations, derivations, and combinations thereof and
including all goodwill associated therewith, that are presently owned or
used by the Seller in connection with the manufacture or exploitation of
moulded contact lenses. Provided that the Buyer and the Company undertakes
in favour of the Seller that it will not do any action or thing which will
prejudice, diminish or adversely affect in any material respect, the good
name or repute of the Seller, or cause the Seller to suffer or incur any
Liabilities or be subject to any Proceedings. The Seller further agrees to
allow the Buyer to jointly use any domain names and hostnames owned by the
Seller and to jointly use and/or create a link to all internet addresses
and websites owned or used by the Seller for a period of six (6) months
after closing.
9. ESCROW AGREEMENT. At the Closing, an amount of 700,000 of the Shares
shall be deposited with an Escrow Agent mutually agreed upon by the Seller and
the Buyer, such deposit to constitute an escrow fund (the "Escrow Fund") to be
governed by the terms set forth herein and in the Escrow Agreement. In the event
of any conflict between the terms of this Agreement and the Escrow Agreement,
the terms of the Escrow Agreement shall govern. All costs and fees of the Escrow
Agent for establishing and administering the Escrow Fund shall be borne equally
by the Buyer and the Seller. Upon compliance with the terms hereof, the Buyer
shall be entitled to obtain indemnity first from the Escrow Fund for all Adverse
Consequences covered by the indemnity provided for in Section 8 above. If the
Escrow Fund is not sufficient to cover any such Adverse Consequences covered by
Section 8 above, then the Buyer shall be entitled to seek payment directly from
any or all of the Seller and the Shareholders jointly and severally. The form of
the Escrow Agreement is attached hereto as Exhibit H.
10. MISCELLANEOUS
(a) PRESS RELEASES AND PUBLIC ANNOUNCEMENTS. No Party shall issue any
press release or make any public announcement relating to the subject
matter of this Agreement prior to the Closing without the prior written
approval of the other Party, which approval shall not be unreasonably
withheld.
(b) NO THIRD-PARTY BENEFICIARIES. This Agreement shall not confer any
rights or remedies upon any Person other than the Parties and their
respective successors and permitted assigns.
(c) ENTIRE AGREEMENT. Except to the extent expressly incorporated by
reference herein, this Agreement, and the Exhibits and Schedules hereto
(including the documents referred to herein), constitutes the entire
agreement between the Parties and supersedes any prior understandings,
agreements, or representations by or between the Parties, written or oral,
to the extent they related in any way to the subject matter hereof.
39
(d) SUCCESSION AND ASSIGNMENT. This Agreement shall be binding upon
and inure to the benefit of the Parties named herein and their respective
successors and permitted assigns. No Party may assign either this Agreement
or any of its rights, interests, or obligations hereunder without the prior
written approval of the other Party; PROVIDED, HOWEVER, that the Buyer may
(i) assign any or all of its rights and interests hereunder to one or more
of its Affiliates and (ii) designate one or more of its Affiliates to
perform its obligations hereunder (in any or all of which cases the Buyer
nonetheless shall remain responsible for the performance of all of its
obligations hereunder).
(e) COUNTERPARTS. This Agreement may be executed by facsimile and in
any number of counterparts, each of which shall be deemed an original but
all of which together will constitute one and the same instrument.
(f) HEADINGS. The Section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning
or interpretation of this Agreement.
(g) NOTICES. All Notices, requests, demands, claims, and other
communications hereunder will be in writing. Any Notice, request, demand,
claim, or other communication hereunder shall be deemed duly given if (and
then two business days after) it is sent by registered or certified mail,
return receipt requested, postage prepaid, and addressed to the intended
recipient as set forth below:
IF TO THE SELLER:
000 Xxx Xxxx Xxxx #00-00
XXX, Xxxxxx 000000
Xxxxxxxxx
Attention: Mr. Sinduchajana Sulistyo
COPIES TO:
Xxxxxx Xxxx & Company
00 Xxxxx Xxxxxx Xxxx #00-00
Xxxxxxx Xxxxxx
000000 Xxxxxxxxx
Attention: Mr. Xxxxxx Xxxx
Feder, Kaszovitz, Isaacson, Weber, Xxxxx, Bass & Rhine LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xx. Xxxxx Xxxxxx
IF TO THE SHAREHOLDERS:
Mr. Sinduchajana Sulistyo
000 Xxx Xxxx Xxxx #00-00
XXX, Xxxxxx 000000
Xxxxxxxxx
Xx. Xxxxxxx X. Xxxxxx
139 Xxx Xxxx Road 401-01
40
ATD, Centre 000000
Xxxxxxxxx
IF TO THE BUYER:
XXXX Acquisition Pte Ltd
00 Xxxx Xxxxxxxxx Xxxx Xxxxx
0xx Xxxxx, Xxxxxx, Xxxx 00000
Attention: Xx. Xxxxxxxx X. Xxxx
C0PIES TO:
1-800 Contacts, Inc.
00 Xxxx Xxxxxxxxx Xxxx Xxxxx
0xx Xxxxx, Xxxxxx, Xxxx 00000
Attention: Xx. Xxx Xxxxxxx, General Counsel
Ballard, Spahr, Xxxxxxx & Ingersoll LLP
000 Xxxxx Xxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Xx. Xxxxx X. Xxxx
Any Party may send any Notice, request, demand, claim, or other
communication hereunder to the intended recipient at the address set forth
above using any other means (including personal delivery, expedited
courier, messenger service, telecopy, telex, ordinary mail, or electronic
mail), but no such Notice, request, demand, claim, or other communication
shall be deemed to have been duly given unless and until it actually is
received by the intended recipient. Any Party may change the address to
which Notices, requests, demands, claims, and other communications
hereunder are to be delivered by giving the other Party Notice in the
manner herein set forth.
(h) GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the domestic Laws of the State of
Utah without giving
effect to any choice or conflict of Law provision or rule (whether of the
State of
Utah or any other jurisdiction) that would cause the application,
of the Laws of any jurisdiction other than the State of
Utah.
(i) DISPUTE RESOLUTION. Any disputes arising under this Agreement or
connected herewith shall solely and exclusively be settled by an
arbitration to be conducted in accordance with the Rules of Conciliation
and Arbitration of the International Chamber of Commerce then in effect.
Such binding arbitration shall be conducted before a panel of three (3)
arbitrators that shall be comprised of one (1) arbitrator designated by
each Party and a third arbitrator designated by the two (2) arbitrators
selected by the Parties. Unless the parties agree otherwise, the
arbitration proceedings shall take place in Singapore, and the arbitrators
shall apply the Laws of the State of
Utah, USA, to all issues in dispute.
All arbitration proceedings hereunder shall be conducted in English. The
findings of the arbitrators shall be final and binding on the parties.
Judgment may be entered in any court of appropriate jurisdiction, or
application may be made to that court for a judicial acceptance of the
award and an Order of enforcement, as the party seeking to enforce that
award may elect.
41
(j) AMENDMENTS AND WAIVERS. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by
the Buyer, the Seller and the Shareholders. No waiver by any Party of any
default, misrepresentation, or breach of warranty or covenant hereunder,
whether intentional or not, shall be deemed to extend to any prior or
subsequent default, misrepresentation, or breach of warranty or covenant
hereunder or affect in any way any rights arising by virtue of any prior or
subsequent such occurrence,
(k) SEVERABILITY. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or provision
in any other situation or in any other jurisdiction.
(l) EXPENSES. Each of the Buyer, the, Seller and the Shareholders
will bear its own costs and expenses (including legal fees and expenses)
incurred in connection with this Agreement and the transactions
contemplated hereby.
(m) CONSTRUCTION. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be
construed as if drafted jointly by the Parties and no presumption or burden
of proof shall arise favoring or disfavoring any Party by virtue of the
authorship of any of the provisions of this Agreement. Any reference to any
Law shall be deemed also to refer to all rules and regulations promulgated
thereunder, unless the context requires otherwise. The word "including"
shall mean including without limitation. Nothing in the Disclosure Schedule
shall be deemed adequate to disclose an exception to a representation or
warranty made herein unless the Disclosure Schedule identifies the
exception with reasonable particularity and describes the relevant facts in
reasonable detail. Without limiting the generality of the foregoing, the
mere listing (or inclusion of a copy) of a document or other item shall not
be deemed adequate to disclose an exception to a representation or warranty
made herein (unless the representation or warranty has to do with the
existence of the document or other item itself). The Parties intend that
each representation, warranty, and covenant contained herein shall have
independent significance. If any Party has breached any representation,
warranty, or covenant contained herein in any respect, the fact that there
exists another representation, warranty, or covenant relating to the same
subject matter (regardless of the relative levels of specificity) which the
Party has not breached shall not detract from or mitigate the fact that the
Party is in breach of the first representation, warranty, or covenant.
(n) INCORPORATION OF EXHIBITS AND SCHEDULES. The Exhibits and
Schedules identified in this Agreement are incorporated herein by reference
and made a part hereof
(o) SPECIFIC PERFORMANCE. Each of the Parties acknowledges and agrees
that the other Party would be damaged irreparably in the event any of the
provisions of this Agreement are not performed in accordance with their
specific terms or otherwise are breached. Accordingly, each of the Parties
agrees that the other Party shall be entitled to an injunction or
injunctions to prevent breaches of the provisions of this Agreement and to
enforce specifically this Agreement and the terms and provisions hereof in
any Proceeding instituted in accordance with Section 10(i) above,
42
in addition to injunctive relief and any or all other remedies applicable
at Law or in equity in any court of applicable jurisdiction.
*****
43
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the date first above written.
THE BUYER:
XXXX ACQUISITION CO. PTE LTD
By: /s/ Xxxxxxxx X. Xxxx
---------------------------------
Its: Chairman
--------------------------------
THE SELLER:
COMPANY
XXXX VISIONCARE PTE LTD
By: /s/ Sinduchajana Sulistyo
---------------------------------
Its: Director
--------------------------------
THE XXXX SUBSIDIARIES:
XXXX X.X. LABORATORY PTE LTD
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Its: Director
--------------------------------
INTERNATIONAL VISION LABORATORIES PTE LTD
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Its: Director
--------------------------------
SHAREHOLDERS:
/s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxx
/s/ Sinduchajana Sulistyo
-------------------------------------
Xxxxxxxxxxxx Xxxxxxxx
00
