STOCK ACQUISITION AGREEMENT dated as of May 14, 2008 between WOIZE INTERNATIONAL LIMITED and KEITH FRANCE relating to the purchase and sale of 100% of the Common Stock of SMART DEVICES LIMITED
dated
as of
May
14, 2008
between
WOIZE
INTERNATIONAL LIMITED
and
▇▇▇▇▇
FRANCE
relating
to the purchase and sale
of
100%
of the Common Stock
of
SMART
DEVICES LIMITED
1
THIS
STOCK ACQUISITION AGREEMENT (this “Agreement”) is dated as of
March 14, 2008, by and between WOIZE INTERNATIONAL LIMITED a publicly-held
Nevada corporation (“Buyer”) and ▇▇▇▇▇ FRANCE a
businessperson residing at ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇ (“Seller”).
W I T N E S S E T H
:
WHEREAS,
Seller, is the beneficial owner of all of the outstanding Shares of SMART
DEVICES LIMITED, a private UK corporation with a registered office at ▇▇▇▇ ▇▇,
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ (as further defined herein)
and desires to sell the Shares to Buyer, and Buyer desires to purchase the
Shares from Seller, upon the terms and subject to the conditions hereinafter set
forth.
The
parties hereto agree as follows:
ARTICLE
1
Definitions
Section
1.01 . Definitions. The following terms, as
used herein, have the following meanings:
“Affiliate” means, with respect
to any Person, any other Person directly or indirectly controlling, controlled
by or under common control with such Person.
“Affiliated Group” means, with
respect to federal income Taxes, any affiliated group of corporations (as
defined in Section 1504(a) of the Code) of which the Company are members and,
with respect to any state, local or foreign income, franchise or similar
income-based Tax, the consolidated, combined or unitary group of which the
Company is a member.
“Balance Sheet” means the
unaudited balance sheet of the Company as of the Balance Sheet
Date.
“Balance Sheet Date” means
March 31, 2008.
“Business” means the business
and operations of the Company as such are conducted by the Company as of the
date hereof.
“Business Day” means a day,
other than Saturday, Sunday or other day on which commercial banks in New York,
New York are required by law to close.
“Common Stock” means the common
stock, without par value, of the Company.
2
“Company” means SMART DEVICES
LIMITED, a UK corporation, including those business assets listed in Exhibit
1.
“Company Intellectual Property
Rights” means all Intellectual Property Rights owned by, or licensed to,
the Company, or to which the Company has the right to acquire, as further
outlined in Exhibit 1 – The Business Assets of the Company.
“Exchange Act” means the
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
“GAAP” means generally accepted
accounting principles in the United States.
“Governmental Authority” shall
mean any federal, state, local or foreign government or any subdivision, agency,
instrumentality, authority, department, commission, board or bureau thereof or
any federal, state, local or foreign court, tribunal or arbitrator.
“Intellectual Property Right”
means any trademark, service ▇▇▇▇, trade name, invention, patent, trade secret,
copyright, know how (including any registrations or applications for
registration of any of the foregoing) or any other similar type of proprietary
intellectual property right.
“Laws” means any law,
regulation, rule, order, judgment or decree of a Governmental
Authority.
“Lien” means, with respect to
any property or asset, any and all liens, encumbrances, charges, security
interests, options, mortgages, easements or pledges in respect of such property
or asset.
“Permitted Liens” mean: (i)
specific Liens reflected or reserved against in the Balance Sheet or disclosed
in the notes thereto; (ii) Taxes and general and special assessments not in
default and payable without penalty or interest or being contested in good
faith; (iii) mechanic’s, materialman’s, carrier’s, repairer’s and other similar
Liens arising or incurred in the ordinary course of business or that are not yet
due and payable or are being contested in good faith; or (iv) Liens arising or
incurred in the ordinary course of business since the Balance Sheet Date, which
individually or in the aggregate do not have a Company Material Adverse
Effect.
“Person” means an individual,
corporation, partnership, limited liability company, association, trust or other
entity or organization, including a government or political subdivision or an
agency or instrumentality thereof.
“Real Property” means all real
property that is owned or leased by the Company.
3
“SEC” means the Securities and
Exchange Commission.
“Securities Act” means the
Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder.
“Shares” means 100% of the
outstanding shares of Common Stock of the Company.
“Tax” means any federal, state,
local or foreign income, gross receipts, license, payroll, employment, excise,
severance, stamp, occupation, premium, windfall profits, environmental,
unemployment, disability, real property, personal property, sales, use,
transfer, registration, value added, alternative or add-on minimum, estimated or
other tax of any kind whatsoever
“Tax Audit” shall mean any
notice of deficiency, proposed adjustment, adjustment, assessment, audit,
examination or other administrative or court proceeding, suit, dispute or other
claim regarding Taxes.
“Tax Return” 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.
“Taxing Authority” means any
governmental authority (domestic or foreign) responsible for the imposition of
any Tax.
Section
1.02 . Other Definitional and
Interpretative Provisions. Unless specified otherwise, in this
Agreement the obligations of any party consisting of more than one Person are
joint and several. The words “hereof”, “herein” and “hereunder” and
words of like import used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement. The
captions herein are included for convenience of reference only and shall be
ignored in the construction or interpretation hereof. References to
Articles, Sections, Exhibits and Schedules are to Articles, Sections, Exhibits
and Schedules of this Agreement unless otherwise specified. All
Exhibits and Schedules annexed hereto or referred to herein are hereby
incorporated in and made a part of this Agreement as if set forth in full
herein. Any capitalized terms used in any Exhibit or Schedule but not
otherwise defined therein shall have the meaning as defined in this
Agreement. Any singular term in this Agreement shall be deemed to
include the plural, and any plural term the singular. Whenever the
words “include,” “includes” or “including” are used in this Agreement, they
shall be deemed to be followed by the words “without limitation,” whether or not
they are in fact followed by those words or words of like
import. “Writing,” “written” and comparable terms refer to printing,
typing and other means of reproducing words (including electronic media) in a
visible form. References to any Person include the successors and
permitted assigns of that Person. References from or through any date
mean, unless otherwise specified, from and including or through and including,
respectively.
4
ARTICLE
2
Purchase
and Sale and Transfer of Rights
Section
2.01 . Purchase and
Sale. Upon the terms and
subject to the conditions of this Agreement, Seller agrees to sell to Buyer and
Buyer agrees to purchase from Seller, 100% of the outstanding common shares
(equivalent to 100% of the total common shares) of the Company. The
purchase price (the “Purchase
Price”) is as follows:
(i) The
issuance to the Seller by the Buyer of 2,000,000 shares of the Common Stock of
the Buyer, such shares to carry piggy back registration rights subject to the
consent of the subscriber to which registration rights are granted;
(ii) A five
year stock warrant in favor of the Seller issued by the Buyer to subscribe for
200,000 common shares of the Buyer at $0.10 per share; and
(iii) The
payment to the Seller of 60,000 British pounds in 24 equal monthly instalments
payable on the first of the month, and commencing 30 days from the
Closing.
Section
2.02 . Closing. Upon
mutual execution of this document via electronic counterparts with original
copies to follow,
(a) Buyer
shall issue to the Seller a total of 2,000,000 shares of the Common Stock of the
Buyer by executing a treasury order and delivering same to the registered
transfer agent of the Buyer; and
(b) Upon
execution and delivery of the treasury order, the Seller shall immediately
deliver to Buyer certificates for the Shares duly endorsed or accompanied by
stock powers duly endorsed in blank, with any required transfer stamps affixed
thereto.
ARTICLE
3
Representations
and Warranties of the Sellers
Seller
makes the following representations and warranties to Buyer with respect to the
Company as of the date hereof (except to the extent expressly relating to a
specific date, in which event such representation or warranty shall be made as
of such date), which shall be unaffected by any investigation heretofore or
hereafter made by or on behalf of Buyer:
5
Section
3.01 . Corporate Existence and
Power. The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of its jurisdiction of
incorporation and has all corporate powers required to carry on its business as
now conducted.
Section
3.02 . Corporate Authorization
and Binding Effect. The execution, delivery and performance by
Seller of this Agreement, and the consummation by each of the Sellers and the
Company of the transactions contemplated hereby and thereby have been duly
authorized by all necessary corporate and shareholder action by each of the
Sellers and the Company. Seller and the Company has full power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder. This Agreement and each Related Agreement to which it is a
party has been duly executed and delivered by Seller and the Company and,
assuming due and valid authorization, execution and delivery thereof by Buyer,
this Agreement is a valid and binding obligation of Seller and the Company party
thereto, enforceable in accordance with its terms and conditions.
Section
3.03 . Governmental
Authorization. The execution, delivery and performance by the
Seller of this Agreement and the consummation by the Seller of the transactions
contemplated hereby require no action by or in respect of, or filing with, any
Governmental Authority.
Section
3.04 . Noncontravention. The
execution, delivery and performance by the Seller of this Agreement and the
consummation by Seller and the Company of the transactions contemplated hereby
and thereby do not and will not contravene or conflict with the
certificates or articles of incorporation or bylaws of the Seller or the
Company; contravene or conflict with or constitute a violation of any
provision of any Law binding upon or applicable to the Seller or the Company or
any of their respective properties or assets; result in a violation
or a breach of, or constitute a default or require any consent under or give
rise to a right of termination, cancellation or acceleration of any right or
obligation of the Company or to a loss of any benefit to which the Company is
entitled under any provision of any note, bond, mortgage, indenture, lease,
agreement, contract, obligation or other instrument to which the Company is
bound, or any license, franchise, permit or other similar authorization held by
the Company; or result in the creation or imposition of any Lien on
any asset of the Company, except for any Permitted Liens.
Section
3.05 . Capitalization. All
outstanding shares of capital stock of the Company are duly authorized, validly
issued, fully paid, nonassessable and free from preemptive
rights. Except as set forth in this Section 3.05, there
are no outstanding shares of capital stock or other voting securities
of or other ownership interests in the Company; ) securities of the Company
convertible into or exchangeable for shares of capital stock or voting
securities of or other ownership interests in the Company; or options
or other rights to acquire from the Company, or any obligation of the Company to
issue, transfer or sell, any capital stock or voting securities of or other
ownership interests in the Company or securities convertible into or
exchangeable for capital stock or voting securities of or other ownership
interests in the Company (the items in clauses (i), (ii) and (iii) being
referred to collectively as the “Company
Securities”). There are no outstanding obligations of the
Company to repurchase, redeem or otherwise acquire any Company
Securities. The Company does not have any Subsidiaries.
6
Section
3.06 . Ownership of
Shares. Seller is the record and beneficial owner of the
Shares, free and clear of any Lien, and will transfer and deliver to Buyer at
the Closing valid title to the Shares, free and clear of any
Lien.
Section
3.07 . Permits;
Compliance. The Company is in possession of all franchises,
grants, authorizations, licenses, permits, easements, variances, exceptions,
consents, certificates, approvals, clearances and orders of any Governmental
Authority necessary for the Company to operate its repair and manufacturing
business as currently conducted, to own, lease and operate its properties and to
carry on the Business (the “Company Permits”) and the use
and operation by the Company of its properties and the conduct of the Business
comply with the requirements and conditions of all Company Permits.
Section
3.08 . Financial
Statements. The Company has
unaudited consolidated financial statements of the Company as of March 31, 2008,
(collectively, the “Financial
Statements”), the financial position of the Company as of the dates
thereof and their consolidated results of operations, cash flows and
stockholders equity for the periods then ended.
Section
3.09 . Books and
Records. The books of account, minute books and stock record
books of the Company are complete and correct in all material respects and have
been maintained in accordance with reasonable and customary business
practices. The minute books of the Company contain records that are
complete and correct in all material respects of all meetings of, and corporate
action taken by (including all actions by unanimous written consent), the
shareholders and directors of the Company since inception. True and
complete copies of all minute books and all stock record books of the Company
have heretofore been made available to Buyer.
Section
3.10 . Absence of Certain
Changes. The Company has conducted its business in the
ordinary course consistent with past practices and there has not
been:
(a) any
event, occurrence or development which has had a Company Material Adverse
Effect;
7
(b) any
declaration, setting aside or payment of any dividend or other distribution with
respect to any shares of capital stock of the Company, or any repurchase,
redemption or other acquisition by the Company of any outstanding shares of
capital stock or other securities of, or other ownership interests in, the
Company;
(c) any
amendment of any material term of any outstanding security of the
Company;
(d) any
incurrence, assumption, amendment or guarantee by the Company of any
indebtedness for borrowed money, or any foreign currency, hedging, financial
derivatives or similar transactions, other than in the ordinary course of
business and consistent with past practices;
(e) any
creation or assumption by the Company of any Lien, other than Permitted Liens,
on any asset of the Company;
(f) any
making of any loan, advance or capital contribution to or investment in any
Person by the Company other than loans, advances, capital contributions or
investments made in the ordinary course of business consistent with past
practices or any amendment of the terms of any loan to executive
officers or directors;
(g) any
transaction or commitment made, or any contract or agreement entered into, by
the Company relating to its assets or the Business (including the acquisition or
disposition of any assets), in either case, material to the Company, other than
transactions and commitments in the ordinary course of business consistent with
past practices and those contemplated by this Agreement;
(h) any
material change in any method of accounting or accounting practice by the
Company.
(i) any
payment, discharge or satisfaction of any material claim, liability or
obligation, except in the ordinary course of business or pursuant to the terms
of any Material Contract;
(j) any
material modification to a Material Contract;
(k) except as
required under applicable law or pursuant to existing agreements,
any grant of any severance or termination pay to any director,
officer or employee of the Company, increase in compensation, bonus
or other benefits payable under any severance or retirement or termination pay
policies of the Company, entering into of any employment, deferred
compensation or other similar agreement (or any amendment to any such existing
agreement) with any director, officer or employee of the Company
or adoption of any new Employee Plan or modification of any Employee
Plan, in the case of each of clauses (i) through (iv), other than in the
ordinary course of business consistent with past practices; or
8
(l) any
disposal or lapse of any rights to the use of any Intellectual Property Right,
which would have a Company Material Adverse Effect.
Section
3.11 . No Undisclosed Material
Liabilities. There are no liabilities or obligations of the
Company of any kind, other than:
(a) liabilities
or obligations disclosed or provided for in the Balance Sheet or the notes
thereto;
(b) liabilities
or obligations incurred in the ordinary course of business since the Balance
Sheet Date;
(c) liabilities
or obligations under this Agreement; and
(d) other
liabilities or obligations which in the aggregate would not have a Company
Material Adverse Effect.
Section
3.12 . Litigation. As of
the date of this Agreement, there is no judicial or administrative action, suit
or proceeding pending, or to the Knowledge of Seller, threatened against the
Company or relating to the Business, any of the Company’s properties or any of
the officers or directors of such companies before any court or arbitrator or
before or by any Governmental Authority that would, individually or in the
aggregate, have a Company Material Adverse Effect. The Company is not
subject to any judgment, order or decree that would result in a Company Material
Adverse Effect.
Section
3.13 . Taxes. The Company has also
separately filed all material Tax Returns that it was required to file for each
taxable period. All such Tax Returns were timely filed, correct and
complete in all material respects and were prepared in substantial compliance
with all applicable laws and regulations. The Company has paid all
material Taxes shown or required to be shown on such separate Tax
Returns.
(a) There are
no Liens for Taxes (other than Taxes not yet due and payable) upon any of the
assets of the Company.
(b) The
Company has withheld and paid all employment, sales, use and other Taxes
required to have been withheld and paid in connection with any amounts paid or
owing to any employee, independent contractor, creditor or other third
party.
(c) There is
no pending or any threatened dispute or claim concerning any material Tax
liability of the Company for any taxable period during which the Company was a
member of the Seller’s Affiliated Group.
(i) . Employees. The
Company does not nor has ever had any employees.
9
Section
3.14 . Certain Business
Practices. Neither the Company nor any
of its directors, officers employees or any other person authorized to act on
behalf of the Company has used any corporate funds for unlawful contributions,
gifts, entertainment or other unlawful expenses relating to political activity,
made any unlawful payment to foreign or domestic government officials or
employees or to foreign or domestic political parties or campaigns from
corporate funds, violated any provision of the Foreign Corrupt Practices Act of
1977, as amended, or made any bribe, rebate, payoff, influence payment, kickback
or other similar unlawful payment to any foreign or domestic government official
or employee from corporate funds.
Section 3.15 . Environmental
Matters. Except as to matters
that would not have a Company Material Adverse Effect:
(i) no
complaint has been filed, no penalty has been assessed, and no third-party
investigation, claim, suit, proceeding or review is pending or is threatened by
any Governmental Authority or other Person against the Company and, in each
case, alleging or relating to any violation by the Company of any Environmental
Law;
(ii) the
Company is in compliance with all Environmental Laws and has obtained and is in
compliance with all permits, licenses, franchises, certificates, approvals and
other similar authorizations of any Governmental Authority (collectively, “Environmental Permits”)
required by Environmental Laws to conduct the Business;
. Compliance With Laws
and Court Orders. The Company is in compliance with all, and is not under
investigation with respect to applicable Laws.
Section
3.16 . Employee
Matters. The Company is in compliance in all material respects
with all applicable Laws respecting employment and employment practices, terms,
and conditions of employment, and wages and hours and is not engaged in any
unfair labor practice.
Section 3.17 . Title to Assets;
Liens. The Company has good title to all the properties and
assets reflected in the Balance Sheet and all assets purchased by the Company
since the Balance Sheet Date free and clear of all Liens (other than Permitted
Liens). At the time of the Closing, the assets of the Company, taken
together with the rights and benefits to Buyer arising under the Related
Agreements, shall be adequate in all material respects to allow Buyer at such
time to conduct the Business substantially as it is currently being
conducted.
Section 3.18 . Real
Property. The Company has no title to any real
property.
(a) To
Seller’s Knowledge, there is no structural defect in any of the Real Property or
the improvements thereon.
10
Section 3.19 Material
Contracts. The Company is
not a party to or bound by any agreement or contract except as outlined in
Exhibit 1.
(a) Each
agreement, contract, plan, lease, arrangement or commitment required to be
disclosed pursuant to this Section (collectively, “Material Contracts”) is a
valid and binding agreement of the Company and is in full force and effect, and
none of the Company or, to the Knowledge of Seller, any other party thereto is
in default or breach in any respect under the terms of any such agreement,
contract, plan, lease, arrangement or commitment.
Section
3.20 . Insurance. Seller
has made available to Buyer copies of all insurance policies providing coverage
in favor of the Company or any of its properties, including “all risk” insurance
policies (collectively, the “Insurance
Policies”). There are no material claims by the Company
pending under any of the Insurance Policies as to which coverage has been
questioned, denied or disputed by the underwriters of such policies or in
respect of which such underwriters have reserved their rights. As of
the date hereof, all Insurance Policies are in full force and effect, all
premiums due thereon have been paid and the Company is in compliance in all
material respects with the terms and provisions of the Insurance
Policies.
Section
3.21 . Intellectual
Property. No Company Intellectual
Property Right is subject to any outstanding judgment, injunction, order, decree
or agreement restricting the use thereof by the Company or restricting the
licensing thereof by the Company to any Person.
(a) Except as
expressly disclosed to Buyer, the Company has the sole and exclusive right to
use the Company Intellectual Property Rights, and no consent of any third party
is required for the use thereof by the Company following Closing. To
the Knowledge of Seller, no claims have been asserted by any person challenging
the use of any Company Intellectual Property Rights, or challenging or
questioning the validity or effectiveness of any such license or agreement. No
additional Intellectual Property Rights other than the Company Intellectual
Property Rights are necessary or material to the conduct of the
Business.
ARTICLE
4
Representations
and Warranties of Buyer
Buyer
hereby makes the following representations and warranties to the Sellers as of
the date hereof (except to the extent expressly relating to a specific date, in
which event such representation or warranty shall be made as of such date),
which shall be unaffected by any investigation heretofore or hereafter
made.
11
Section
4.01 . Corporate Existence and
Power. Buyer is a corporation duly incorporated, validly
existing and in good standing under the laws of its jurisdiction of
incorporation and has all corporate powers required to carry on its business as
now conducted.
Section
4.02 . Corporate
Authorization. The execution, delivery and performance by
Buyer of this Agreement and each Related Agreement to which it is a party and
the consummation by Buyer of the transactions contemplated hereby and thereby
have been duly authorized by all necessary corporate and shareholder action by
Buyer. Buyer has full power and authority to execute and deliver this
Agreement and to perform its obligations hereunder. This Agreement has been duly
executed and delivered by Buyer and, assuming due and valid authorization,
execution and delivery thereof by each Seller party thereto, this Agreement is a
valid and binding obligation of Buyer, enforceable in accordance with its terms
and conditions.
Section
4.03 . Governmental
Authorization. The execution, delivery and performance by
Buyer of this Agreement and each Related Agreement and the consummation by Buyer
of the transactions contemplated hereby and thereby require no action by or in
respect of, or filing with, any Governmental Authority
Section
4.04 . Noncontravention. The
execution, delivery and performance by Buyer of this Agreement and the
consummation by Buyer of the transactions contemplated hereby do not and will
not contravene or conflict with the articles of incorporation or
bylaws of Buyer, assuming compliance with the matters referred to in
Section 4.03, contravene or conflict with or constitute a violation of any
provision of any Law binding upon or applicable to Buyer, result in a
violation or a breach of, or constitute a default or require any consent under
or give rise to a right of termination, cancellation or acceleration of any
right or obligation of Buyer or to a loss of any benefit to which Buyer is
entitled under any provision of any note, bond, mortgage, indenture, lease,
agreement, contract, obligation or other instrument to which Buyer is bound, or
any license, permit or other similar authorization held by Buyerj.
Section
4.05 . Litigation. As
of the date of this Agreement, there is no judicial or administrative action,
suit or proceeding pending, or to the knowledge of Buyer, threatened against
Buyer before any Governmental Authority which in any manner challenges or seeks
to prevent, enjoin, alter or materially delay the transactions contemplated by
this Agreement.
ARTICLE
5
Covenants
of the Sellers
Each of
the Sellers agrees that:
12
Section
5.01 . Conduct of the
Company. Except as expressly contemplated by this Agreement or
as otherwise consented to by Buyer in writing, during the period from the date
hereof and continuing, each of the Sellers shall cause the Company
to:
(a) conduct
its business in the usual, regular and ordinary course consistent with past
practices;
(b) not
mortgage, pledge, sell or dispose of any assets with a value of $3,000 or more
in the aggregate, and not waive, release, grant, transfer or permit to lapse any
Company rights of value in excess of $5,000 in the aggregate;
(c) comply in
all material respects with all provisions of any Material Contracts to which the
Company is a party;
(d) not take
any action that would result in the representation set forth in Section 3.10(k)
being untrue;
(e) not enter
into any new or amended contract, agreement, side letter or memorandum of
understanding with any unions representing employees of the
Company;
(f) not enter
into any agreement or understanding with any other Person outside of the
ordinary course of business consistent with past practices involving
expenditures in excess of $3,000 in the aggregate or involving terms of duration
or commitments in excess of 3 months;
(g) not enter
into any agreement or understanding with any other Person containing any
exclusivity, non-competition or similar provisions that would materially
restrict the ability of the Company to compete;
(h) not adopt
or propose any change in its organizational documents (including bylaws);
and
(i) not merge
or consolidate with any other Person.
Section
5.02 . Access
to Information; Confidentiality.
(a) After the
Closing, Seller will hold, and will use their best efforts to cause their
respective officers, directors, employees, accountants, counsel, consultants,
advisors and agents to hold, in confidence, unless compelled to disclose by
judicial or administrative process or by other requirements of law, all
confidential documents and information concerning the Company, except to the
extent that such information can be shown to have been previously
known on a nonconfidential basis by either Seller, in the public
domain through no fault of Sellers or their Affiliates or later
lawfully acquired by any Seller from sources other than those related to its
prior ownership of the Company. The obligation of Sellers and their
Affiliates to hold any such information in confidence shall be satisfied if they
exercise the same care with respect to such information as they would take to
preserve the confidentiality of their own similar information.
13
(b) On and
after the Closing Date, Seller will afford, promptly to Buyer and its agents
reasonable access to its books of account, financial and other records
(including accountant’s work papers), information, employees and auditors to the
extent reasonably necessary for Buyer in connection with any audit,
investigation, dispute or litigation (other than any dispute or litigation
involving either of the Sellers) relating to the Business; provided that any such access
by Buyer shall be conducted during normal business hours and shall not
unreasonably interfere with the conduct of the business of the Sellers, Buyer
shall bear all of the out-of-pocket costs and expenses (including reasonable
attorneys’ fees, but excluding reimbursement of Seller for general overhead,
salaries and employee benefits) reasonably incurred in connection with the
foregoing.
Section
5.03 . Notices of Certain
Events. From the date hereof, Seller shall promptly notify
Buyer of:
(a) any
actions, suits, claims, investigations or proceedings commenced
against the Company or in respect of which the Company has an
indemnification obligation and as to which Seller has Knowledge that, if pending
on the date of this Agreement, would have been required to have been disclosed
pursuant to Section 3.12.
ARTICLE
6
Covenants
of Buyer
Buyer
agrees that:
Section
6.01 . Confidentiality. Prior
to the Closing Date and after any termination of this Agreement, Buyer and its
Affiliates will hold, and will use their best efforts to cause their respective
officers, directors, employees, accountants, counsel, consultants, advisors and
agents to hold, in confidence all confidential documents and information
concerning the Company furnished to Buyer or its Affiliates in connection with
the transaction contemplated by this Agreement.
Section
6.02 . Trademarks;
Tradenames. Buyer shall not permit the Company to use any of
the marks or names of Seller that the parties agree shall belong to Seller after
closing.
14
ARTICLE
7
Covenants
of Buyer and the Sellers
Buyer and
the Sellers agree that:
Section
7.01 . Best Efforts; Further
Assurances. Subject to the terms
and conditions of this Agreement, Buyer and the Sellers will use their best
efforts to take, or cause to be taken, all actions and to do, or cause to be
done, all things necessary or desirable under applicable laws and regulations to
consummate the transactions contemplated by this Agreement. Seller
and Buyer shall, and the Sellers shall cause the Company prior to the Closing,
and Buyer shall cause the Company after the Closing, to execute and deliver such
other documents, certificates, agreements and other writings and to take such
other actions as may be necessary or desirable in order to consummate or
implement expeditiously the transactions contemplated by this
Agreement.
Section
7.02 . Public
Announcements. The parties agree to consult with each other
before issuing any press release or making any public statement with respect to
this Agreement or the transactions contemplated hereby and, except for any press
releases and public announcements the making of which may be required by
applicable law or any listing agreement with any national securities exchange,
will not issue any such press release or make any such public statement prior to
such consultation..
Section
7.03 Operational
Agreement. Both parties agree that within 90 days of closing
an operational partnership agreement shall be in place, inclusive of employment
agreements for principal officers of the Seller. Buyer and Seller
have to date negotiated most of the terms of the agreement and will use their
best faith efforts to complete and ratify said agreement. In the
event of a failure to complete an agreement Seller retains the right to purchase
the shares sold to the Buyer for an equal amount of consideration expended by
the Buyer.
ARTICLE
8
Employee
Benefits
Section
8.01 . Employee
Benefits. Nothing herein shall be construed to require the
Company or Buyer to continue after Closing the employment of any Company
employee or to otherwise interfere with the Company’s right to terminate any
such employees at any time after Closing.
15
ARTICLE
9
Conditions
to Closing
Section
9.01 . Conditions to
Obligations of Buyer and the Sellers. The obligations of Buyer
and the Sellers to consummate the Closing are subject to the satisfaction of the
following conditions:
(a) no
provision of any Law shall prohibit the consummation of the
Closing;
(b) there
shall not be in effect any Law enacted, enforced, promulgated, issued or deemed
applicable to the transactions contemplated hereby of any Governmental Authority
that makes illegal or otherwise materially restrains or prohibits the
consummation of the transactions contemplated hereby.
Section
9.02 . Conditions to
Obligation of Buyer. The obligation of Buyer to consummate the
Closing is subject to the satisfaction of the following further
conditions:
(a) the
Seller shall have performed or complied with in all material respects all of the
covenants and agreements required to be performed by it on or prior to the
Closing Date under this Agreement, and the representations and warranties of the
Seller set forth in this Agreement shall be true at and as of the Closing Date
as if made at and as of such time (except as to any representation or warranty
which speaks as of a specific date, which must be true as of such
date;
(b) there
shall not have occurred any Company Material Adverse Effect after the date
hereof which is continuing on the Closing Date;
(c) Buyer
shall have received all documents it may reasonably request relating to the
existence of the Seller and the authority of the Seller for this Agreement, all
in form and substance reasonably satisfactory to Buyer; and
Section
9.03 . Conditions to
Obligation of the Sellers. The obligation of the Sellers to
consummate the Closing is subject to satisfaction of the following further
conditions:
(a) Buyer
shall have performed or complied with in all material respects all of the
covenants and agreements required to be performed by it on or prior to the
Closing Date under this Agreement, and the representations and warranties of
Buyer set forth in this Agreement shall be true at and as of the Closing Date as
if made at and as of such time (except as to any representation or warranty
which speaks as of a specific date, which must be true as of such date);
and
(b) the
Seller shall have received all documents it may reasonably request relating to
the existence of Buyer and the authority of Buyer for this Agreement, all in
form and substance reasonably satisfactory to the Sellers.
16
ARTICLE
10
Survival;
Indemnification
Section
10.01 . Survival. Except
as specifically set forth below, the representations and warranties of the
parties hereto contained in this Agreement or in any certificate or other
writing delivered pursuant hereto or in connection herewith shall survive the
Closing until the first anniversary of the Closing Date. The
covenants and agreements of the parties hereto contained in this Agreement or in
any certificate or other writing delivered pursuant hereto or in connection
herewith shall survive the Closing indefinitely or for the shorter period
explicitly specified therein, except that for such covenants and agreements that
survive for such shorter period, breaches thereof shall survive indefinitely or
until the latest date permitted by law. Notwithstanding the preceding
sentences, any breach of representation, warranty, covenant or agreement in
respect of which indemnity may be sought under this Agreement shall survive the
time at which it would otherwise terminate pursuant to the preceding sentences,
if notice of the inaccuracy or breach thereof giving rise to such right of
indemnity shall have been given to the party against whom such indemnity may be
sought prior to such time.
Section
10.02 . Indemnification. Effective at and after
the Closing, Seller hereby indemnifies Buyer and its Affiliates against and
agrees to hold each of them harmless from any and all damage, loss and expense
(including reasonable expenses of investigation and reasonable attorneys’ fees
and expenses and any fines or penalties imposed) (“Damages”, which shall not
include amounts subject to indemnification by the Sellers) actually suffered by
Buyer or any of its Affiliates arising out of any misrepresentation or breach of
representation or warranty (each such misrepresentation and breach, a “Warranty Breach”) or breach of
covenant or agreement made or to be performed by the Sellers pursuant to this
Agreement.
(a) Effective
at and after the Closing, Buyer hereby indemnifies Seller and its Affiliates
against and agrees to hold each of them harmless from any and all Damages
actually suffered by Seller or any of its Affiliates arising out of any Warranty
Breach or breach of covenant or agreement made or to be performed by Buyer
pursuant to this Agreement.
Section
10.03 . Procedures. The party seeking
indemnification under Section 10.02 (the “Indemnified Party”) agrees to
give prompt notice to the party against whom indemnity is sought (the “Indemnifying Party”) of the
assertion of any claim, or the commencement of any suit, action or proceeding
(“Claim”) in respect of
which indemnity may be sought under such Section and will provide the
Indemnifying Party such information with respect thereto that the Indemnifying
Party may reasonably request. The failure to so notify the Indemnifying Party
shall not relieve the Indemnifying Party of its obligations hereunder, except to
the extent such failure shall have adversely affected the Indemnifying
Party.
17
(a) The
Indemnifying Party shall be entitled to participate in the defense of any Claim
asserted by any third party (“Third Party Claim”) and,
subject to the limitations set forth in this Section, shall be entitled to
assume the control of and appoint lead counsel for such defense, in each case at
its expense.
(b) If the
Indemnifying Party shall assume the control of the defense of any Third Party
Claim in accordance with the provisions of this Section 10.03, the
Indemnifying Party shall obtain the prior written consent of the Indemnified
Party (which shall not be unreasonably withheld, delayed or conditioned) before
entering into any settlement of such Third Party Claim, but only if the
settlement does not release the Indemnified Party from all liabilities and
obligations with respect to such Third Party Claim or if the settlement imposes
injunctive or other equitable relief against the Indemnified Party,
and the Indemnified Party shall be entitled to participate in the
defense of such Third Party Claim and to employ separate counsel of its choice
for such purpose. The fees and expenses of such separate counsel
shall be paid by the Indemnified Party. The Indemnifying Party shall
have no indemnification obligations with respect to any Third Party Claim that
shall be settled by the Indemnified Party without the prior written consent of
the Indemnifying Party, which consent shall not be unreasonably withheld,
delayed or conditioned.
(c) Each
party shall cooperate, and cause their respective Affiliates to cooperate, in
the defense or prosecution of any Third Party Claim and shall furnish or cause
to be furnished such records, information and testimony, and attend such
conferences, discovery proceedings, hearings, trials or appeals, as may be
reasonably requested in connection therewith. The Indemnified Party
shall keep the Indemnifying Party fully informed of the defense of any Third
Party Claim conducted by such Indemnified Party.
(d) Each
Indemnified Party shall use reasonable efforts to collect any amounts available
under insurance coverage, or from any other Person alleged to be responsible,
for any Damages payable under Section 10.02.
Section
10.04 . Knowledge. Notwithstanding
anything in this Agreement to the contrary, the rights of the parties to
indemnification based on the representations and warranties set forth in this
Agreement shall not be affected by any investigation conducted with respect to,
or any knowledge acquired (or capable of being acquired) about the accuracy or
inaccuracy of or compliance with, any such representation or
warranty.
18
ARTICLE
11
Termination
Section
11.01 . Grounds for
Termination. This Agreement may be terminated at any time
prior to the Closing:
(a) by mutual
written agreement of Seller and Buyer;
(b) by either
Seller or Buyer if consummation of the transactions contemplated hereby would
violate any nonappealable final order, decree or judgment of any Governmental
Authority having competent jurisdiction; or
(c) by Buyer
if Seller shall have filed a petition for relief under the Bankruptcy
Code prior to the Closing or an involuntary petition for relief under
the Bankruptcy Code is filed against Seller prior to the Closing by any party
other than (x) Buyer or its Affiliates or (y) any Person acting at the direction
of or in concert with Buyer or its Affiliates and such petition is not dismissed
prior to the Closing;
The party
desiring to terminate this Agreement pursuant to clauses of this Section 11.01
shall give notice of such termination to the other party.
Section
11.02 . Effect of
Termination. If this Agreement is terminated as permitted by
Section 11.01, such termination shall be without liability of any party (or any
stockholder, director, officer, employee, agent, consultant or representative of
such party) to any other party to this Agreement; provided that if such
termination shall result from either party’s willful failure to
fulfill a condition to the performance of the obligations of the other
party, failure to perform a covenant set forth in this Agreement
or breach of any representation or warranty or agreement contained
herein, such failing or breaching party shall be fully liable for any and all
Damages incurred or suffered by the other party as a result of such failure or
breach. The provisions of Section 6.01,
12.03, 12.05, 12.06 and 12.07 shall survive any termination hereof pursuant to
Section 11.01.
ARTICLE
12
Miscellaneous
Section
12.01 . Notices. All
notices and other communications hereunder shall be in writing (including
facsimile transmission, with confirmation of receipt) and shall be deemed to
have been duly given when delivered personally or by
facsimile, when received by the addressee, if sent by Express Mail,
Federal Express or other express delivery service (receipt requested),
or three business days after being sent by registered or certified
mail, return receipt requested, in each case to the other party at the following
addresses (or to such other address for a party as shall be specified by like
notice, provided that notices of a change of address shall be effective only
upon receipt thereof) provided that any
communication by facsimile shall be confirmed by a copy sent via overnight mail
to the physical address of the recipient set forth above. All such
notices, requests and other communications shall be deemed received on the date
of receipt by the recipient thereof if received prior to 5 p.m. in the place of
receipt and such day is a Business Day in the place of
receipt. Otherwise, any such notice, request or communication shall
be deemed not to have been received until the next succeeding Business Day in
the place of receipt.
19
Section
12.02 . Amendments and
Waivers. Any provision of this
Agreement may be amended or waived only if such amendment or waiver is in
writing and is signed, in the case of an amendment, by each party to this
Agreement, or in the case of a waiver, by the party against whom the waiver is
to be effective.
(a) No
failure or delay by any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies
herein provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
Section
12.03 . Expenses. Except
as otherwise provided herein, all costs and expenses incurred in connection with
this Agreement shall be paid by the party incurring such cost or
expense.
Section
12.04 . Successors and
Assigns. The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns; provided that no party may assign, delegate or otherwise
transfer any of its rights or obligations under this Agreement without the
consent of each other party hereto.
Section
12.05 . Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of England, without regard to the conflicts of law
rules.
Section
12.06 . Jurisdiction. The
parties hereto agree that any suit, action or proceeding seeking to enforce any
provision of, or based on any matter arising out of or in connection with, this
Agreement or the transactions contemplated hereby shall be brought in the
exclusive jurisdiction of the English Courts. In any such suit, action or
proceeding each party irrevocably waives, to the fullest extent permitted by
law, any objection that it may now or hereafter have to the laying of the venue
of any such suit, action or proceeding in any such court or that any such suit,
action or proceeding brought in any such court has been brought in an
inconvenient forum.
Section
12.07 . WAIVER OF JURY
TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section
12.08 . . Counterparts;
Effectiveness; Third-Party Beneficiaries. This Agreement may
be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. No provision of this Agreement is intended to confer any
rights, benefits, remedies, obligations or liabilities hereunder upon any Person
other than the parties hereto and their respective successors and
assigns.
20
Section
12.09 . Entire
Agreement. This Agreement (including the Schedules and
Exhibits hereto), the Confidentiality Agreement and the Related Agreements
constitute the entire agreement between the parties with respect to the subject
matter of this Agreement and supersedes all prior agreements and understandings,
both oral and written, between the parties with respect to the subject matter of
this Agreement.
Section
12.10 . Severability. If
any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated so long as the economic and legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such a determination, the
parties shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an acceptable
manner in order that the transactions contemplated hereby be consummated as
originally contemplated to the fullest extent possible.
21
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
above written.
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By:
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/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇
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| PRESIDENT | |||
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WOIZE
INTERNATIONAL LIMITED
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By:
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/s/
▇▇▇▇▇ France
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| ▇▇▇▇▇ FRANCE | |||
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By:
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/s/
▇▇▇▇▇ France
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| PRESIDENT | |||
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SMART
DEVICES LIMITED
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22
EXHIBIT
1
BUSINESS
ASSETS OF SMART DEVICES LIMITED
23