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Exhibit 10.15
STOCK PURCHASE AGREEMENT
BY AND AMONG
FTL ACQUISITION INC.,
PANGEA, LTD.
AND
THE STOCKHOLDERS, OPTIONHOLDERS
AND WARRANTHOLDER OF
PANGEA, LTD.
DATED AS OF
MAY 20, 1997
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STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement") is made and dated
as of May 20, 1997, by and among FTL Acquisition Inc., a corporation
organized under the laws of the State of Delaware ("Purchaser"), Pangea,
Ltd., a corporation formed under the laws of the State of Delaware
("Pangea"), and the stockholders of Pangea listed on Attachment A (the
"Stockholders") and the option holders and warrant holders of Pangea,
listed on Attachment B hereto (the "Optionholders") (each such
Stockholder and Optionholder listed on Attachments A and B is referred to
herein individually as a "Seller" and all such Stockholders and
Optionholders are referred to herein collectively as "Sellers").
RECITALS
WHEREAS, Stockholders own beneficially and of record all of the
issued and outstanding shares of common stock, par value $.01 per share,
of Pangea (the "Common Stock") and all of the issued and outstanding
shares of Series A Convertible Preferred Stock, par value $.01 per share,
of Pangea (the "Series A Preferred Stock" and together with the Common
Stock, the "Shares"); and
WHEREAS, the Optionholders own beneficially and of record all of
the options, warrants or other rights ("Options") to acquire any Shares
outstanding as of the date hereof; and
WHEREAS, Purchaser desires to acquire the Shares from the
Stockholders and cancel all of the Options held by the Optionholders, and
Sellers desire to sell the Shares to Purchaser and cancel all of the
Options, all upon the terms and subject to the conditions set forth in
this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and of
the mutual covenants, representations, warranties and agreements
hereinafter set forth, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and intending
to be legally bound hereby, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
When used in this Agreement, the following terms shall have the
meanings specified below:
"Affiliate" shall have the meaning prescribed by Rule 12b-2 of the
regulations promulgated pursuant to the Exchange Act.
"Agreement" shall have the meaning set forth in the Preamble hereto.
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"Balance Sheet Date" shall have the meaning set forth in Section
3.08 hereof.
"Closing" shall have the meaning set forth in Section 2.03 hereof.
"Closing Date" shall have the meaning set forth in Section 2.03
hereof.
"Code" shall mean the Internal Revenue Code of 1986, as amended,
and the rules and regulations thereunder.
"Common Stock" shall have the meaning set forth in the Recitals
hereto.
"Contracts" shall have the meaning set forth in Section 3.14 hereof.
"Edgewater" shall have the meaning set forth in Section 3.01(b)
hereof.
"Environmental Requirements" shall mean all applicable United
States statutes, regulations, rules, ordinances, codes, licenses,
permits, orders, approvals, plans, authorizations, concessions,
franchises, and agreements of all Governmental Authorities having
jurisdiction and all applicable judicial and administrative and
regulatory decrees, judgments or orders and all covenants running with
the land that relate to the protection of health or the environment (but
not including worker health or safety), all of which as in effect on or
before the Closing Date.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended, and the rules and regulations thereunder.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder.
"Financial Statements" shall have the meaning set forth in Section
3.06(a) hereof.
"GAAP" shall mean generally accepted accounting principles,
consistently applied.
"Governmental Authority" shall mean any court, agency, department,
ministry, commission, board or other administrative or governmental body
of the United States or any state or jurisdiction thereof.
"Hazardous Materials" shall mean any substance: (i) that is defined
as a "hazardous waste," "hazardous substance," "hazardous material" or
"pollutant or contaminant" under any Environmental Requirements; (ii)
that is toxic, explosive, corrosive, flammable, infectious, reactive,
radioactive, carcinogenic, mutagenic or otherwise hazardous and is
regulated by any Governmental Authority; (iii) the presence of which on
any Real Property or Leased Property causes or threatens to cause a
nuisance upon such property or to adjacent properties or poses or
threatens to pose a hazard to the health or safety of persons on or about
any Real Property or Leased Property; (iv) the presence of which on
adjacent properties could constitute a
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trespass by Pangea; (v) that is or contains petroleum, petroleum
products, petroleum derivatives, natural gas or liquefied natural gas; or
(vi) that contains PCBs, asbestos (whether friable or nonfriable) or urea
formaldehyde foam insulation.
"Indemnified Party" shall mean a Purchaser Indemnfied Party or a
Seller Indemnified Party, as the case may be.
"Investment" shall mean any company, corporation, partnership,
joint venture, limited liability company or other entity in which Pangea
or any Subsidiary, directly or indirectly, has, or pursuant to any
agreement or agreements will have the right to acquire by any means, an
equity or profit interest in excess of five percent (5%) of the equity or
profit interests thereof.
"IRS" shall mean the United States Internal Revenue Service.
"Laws" shall mean, collectively, any statute, law, rule,
regulation, ordinance, order, decree, action, restriction, requirement or
policy of the United States or any state or jurisdiction thereof.
"Leased Property" shall mean any lease of real property under which
Pangea is a lessee, lessor, sublessee, or sublessor.
"Material Adverse Change" shall mean any major adverse change in
the results of operations, condition (financial or otherwise), assets,
liabilities (whether absolute, accrued, contingent or otherwise), or
business of Pangea.
"Material Adverse Effect" shall mean any major adverse effect upon
the condition (financial or otherwise), assets, properties, or business
of Pangea.
"Optionholders" shall have the meaning set forth in the Preamble
hereto.
"Options" shall have the meaning set forth in the Recitals hereto.
"Pangea" shall have the meaning set forth in the Preamble hereto.
"Purchase Price" shall have the meaning set forth in Section
2.02(a) hereof.
"Purchaser Indemnfied Party" shall have the meaning set forth in
Section 6.01 hereof.
"Real Property" shall mean any real property owned by Pangea or in
which Pangea has legal, equitable, or beneficial title.
"Receivables" shall have the meaning set forth in Section 3.13
hereof.
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"Representative" shall mean, with respect to any party to this
Agreement, that party's affiliates, directors, officers, employees,
agents and advisors, including, without limitation, attorneys,
accountants, consultants, bankers and financial advisors.
"Seller Indemnfied Party" shall have the meaning set forth in
Section 6.02 hereof.
"Sellers" shall have the meaning set forth in the Preamble hereto.
"Sellers' Representative" shall mean Edgewater Private Equity Fund,
L.P. or its designee.
"Series A Preferred Stock" shall have the meaning set forth in the
Recitals hereto.
"Shares" shall have the meaning set forth in the Recitals hereto.
"Stockholders" shall have the meaning set forth in the Preamble
hereto.
"Subsidiary" shall mean any company, corporation, partnership,
joint venture, limited liability company or other entity in which Pangea
directly or indirectly, owns or controls, or pursuant to any agreement or
agreements in the future may have the right to acquire by any means, any
equity or profit interest equal to or greater than fifty percent (50%) of
the equity or profit interests thereof.
"Tax Returns" shall mean all reports, returns, statements, forms or
other documents or information required to be filed with a taxing
authority with respect to the Taxes of Pangea.
"Taxes" shall mean all federal, state, local or foreign income,
gross receipts, windfall profits, severance, property, production, sales,
use, license, excise, franchise, employment, withholding, alternative
minimum or add-on minimum or similar taxes imposed on the income,
properties or operations of Pangea, together with any interest, additions
or penalties with respect thereto and any interest in respect of such
additions or penalties.
"Third Party Claim" shall have the meaning set forth in Section
6.02 hereof.
"Transactions" shall have the meaning set forth in Section 2.03(a)
hereof.
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ARTICLE II
SALE OF STOCK AND TERMS OF PAYMENT
2.01 THE SALE.
On the terms and subject to the conditions set forth herein, at the
Closing (i) each Stockholder shall sell, transfer, convey, assign and
deliver to Purchaser and Purchaser shall purchase, acquire and accept
from each Stockholder, all of the Shares owned by such Stockholder and
(ii) each Optionholder shall cancel and extinguish all Options owned by
such Optionholder.
2.02 THE PURCHASE PRICE.
(a) In consideration of the aforesaid sale, transfer, conveyance,
assignment and delivery of the Shares and cancellation of the Options,
Purchaser hereby agrees on the terms and subject to the conditions set
forth herein, to pay to Sellers, in payment therefor, the sum of One
Million Twenty Three Thousand Dollars ($1,023,000) (the "Purchase Price").
(b) Payment of the Purchase Price shall be made by wire transfer
of immediately available funds to the account designated by Sellers'
Representative, or by such other means as may be agreed upon by Sellers'
Representative and Purchaser. Purchaser will pay the Purchase Price to
Sellers' Representative and each Seller hereby acknowledges that receipt
of funds by Sellers' Representative shall be deemed receipt of payment by
such Seller. Sellers' Representative hereby agrees to distribute
payments of the Purchase Price to each Seller in accordance with
Attachment 2.02B.
2.03 THE CLOSING.
(a) On the terms and subject to satisfaction of the conditions
set forth herein, the closing of the transactions contemplated hereby
(the "Transactions") will take place at the offices of ▇▇▇▇▇▇, ▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇., at 11:00
a.m. Eastern Standard Time, on May 20, 1997, or at such other place or
time as the parties may agree (the "Closing"). The date and time at
which the Closing actually occurs is hereinafter referred to as the
"Closing Date." All events occurring at the Closing will, unless
otherwise specified, be deemed to have occurred simultaneously.
(b) At the Closing,
(i) Purchaser will deliver to Sellers' Representative the
Purchase Price, as set forth in Section 2.02(b) hereof.
(ii) Each Stockholder shall deliver to Purchaser
certificates evidencing the Shares owned by such Seller, duly endorsed
for transfer and with all transfer stamps attached. All stock transfer
and other Taxes and charges, if any, that are required to be paid or
withheld
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in connection with the sale and transfer of the Shares to Purchaser will
be paid in full by Sellers.
(iii) Each Optionholder shall surrender to Purchaser for
cancellation all executed agreements evidencing the Options owned by such
Optionholder.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLERS
Each Seller hereby represents and warrants to Purchaser as follows:
3.01 STOCK OWNERSHIP; CAPACITY TO SELL.
(a) Each Stockholder or Optionholder is the beneficial and record
owner of the number of Shares or Options to acquire the number of Shares
set forth opposite each Seller's name on Attachment A or Attachment B
hereto, as the case may be. Each Seller holds such Shares or Options
free and clear of all liens or other encumbrances (other than liens
created by this Agreement) and neither the Shares nor the Options, or any
Shares issuable upon exercise of the Options, are subject to any
preemptive rights or restriction on their transferability (other than
restrictions on transfer under applicable federal and state securities
laws). At the Closing, Purchaser will acquire good and marketable title
to all of the Shares free and clear of all liens or other encumbrances.
(b) Edgewater Private Equity Fund, L.P. ("Edgewater") is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its formation and has all requisite partnership power to
own and to dispose of its Shares.
(c) The Edgewater has full partnership power and authority to
execute and deliver this Agreement and to consummate the Transactions.
The execution and delivery of this Agreement and the consummation of the
Transactions have been duly and validly authorized by the general partner
of Edgewater and no other proceedings on the part of Edgewater are
necessary to authorize the execution and delivery of this Agreement or
the consummation of the Transactions.
(d) Each individual Seller has the full right, power and
authority to execute and deliver this Agreement and to consummate the
Transactions. This Agreement has been duly and validly executed and
delivered by each Seller and constitutes a valid and binding agreement of
each Seller, enforceable against each Seller in accordance with its
terms, except as the same may be limited by bankruptcy, insolvency,
reorganization or other laws relating to or affecting the enforceability
of creditors' rights generally, and except that the remedy of specific
performance or similar equitable relief may be subject to equitable
defenses and to the discretion of the court before which enforcement is
sought.
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3.02 ORGANIZATION; QUALIFICATION.
(a) Pangea is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware, and has all
requisite corporate power and authority to own, lease and operate its
properties and to carry on its business as now being conducted. Pangea
is duly qualified or licensed to do business as a foreign corporation and
is in good standing in each jurisdiction in which the property owned,
leased or operated by it or the nature of the business conducted by it
makes such qualification necessary, except in any jurisdiction where
failure to be so qualified does not have a material effect on its ability
to conduct business or bring any lawsuit or action after such failure is
remedied. Schedule 3.02 hereto sets forth, as of the date hereof, each
jurisdiction in which Pangea is qualified to do business as a foreign
corporation. Sellers have heretofore delivered to Purchaser complete and
correct copies of the certificate of incorporation and by-laws of Pangea
as in effect on the date hereof.
(b) The certificate of incorporation and the by-laws and all
amendments thereto, and the minute books, stock ledgers and stock
transfer records of Pangea furnished to Purchaser for review are accurate
and complete in all material respects. Such stock ledgers and stock
transfer records reflect all issuances, registrations of transfer and
cancellations of all shares of capital stock of each Pangea and the
certificates representing all canceled shares of Common Stock and Series
A Preferred Stock have been returned to each respective entity's stock
ledger. All meetings of the shareholders and board of directors (and
committees thereof) of Pangea since March 6, 1995 were duly called and
held, and a quorum was present and acting throughout each such meeting,
except in each case where any such failure does not impair the current
business activities, operations, and/or status of Pangea in any material
respect.
3.03 CAPITALIZATION OF PANGEA.
(a) The authorized capital stock of Pangea consists solely of
Thirty Five Million (35,000,000) shares, par value $.01, of which (X)
Twenty Five Million (25,000,000) are designated Common Stock, of which
Eight Hundred Thousand (800,000) shares are issued and outstanding and
(Y) Ten Million (10,000,000) are designated as Preferred Shares, of which
(i) One Million Eight Hundred Thirty Five Thousand (1,835,000) shares are
designated Series A Preferred Stock, of which One Million Six Hundred
Thirty Five Thousand (1,635,000) shares are issued and outstanding and
(ii) Eight Million One Hundred Sixty Five Thousand (8,165,000) shares are
undesignated.
(b) Other than the Options, there is no subscription, option,
warrant, call right, agreement or commitment relating to the issuance,
sale, holding, voting, delivery or transfer (including any right of
conversion or exchange under any outstanding security, instrument or
other agreement) of any capital stock of Pangea. There are no
outstanding contractual obligations of Pangea to repurchase, redeem or
otherwise acquire any outstanding shares of capital stock of Pangea.
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(c) No dividend has ever been declared and/or paid on Common
Stock or the Series A Preferred Stock.
3.04 NO SUBSIDIARIES; NO INVESTMENTS.
Pangea does not have any Subsidiaries or Investments.
3.05 CONSENTS AND APPROVALS; NO VIOLATION.
Pangea and ▇▇▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇") each represent and warrant, and
all other Sellers represent and warrant to their knowledge after due
inquiry, that the execution and delivery of this Agreement by each Seller
does not, and the performance by it of its obligations hereunder and the
consummation of the Transactions, will not, directly or indirectly:
(a) conflict with or violate any provision of the certificate of
incorporation or by-laws (or other similar governing documents) of Pangea
or Edgewater;
(b) require any consent, approval, authorization or permit of, or
filing with or notification to, any Governmental Authority to be made or
obtained by Sellers or Pangea as a result of or in connection with this
Agreement or the Transactions;
(c) result in a material default, termination, cancellation or
acceleration (or give rise to any material right of termination,
cancellation or acceleration) under any of the terms, conditions or
provisions of any material note, bond, mortgage, indenture, license,
lease, agreement or other material instrument or obligation to which any
Seller or Pangea is a party or by which any of them or any of their
respective material assets may be bound;
(d) materially violate any material Laws, writ or injunction
applicable to any Seller or Pangea or any of their respective material
assets; or
(e) result in the creation of any liens upon the Shares or result
in the creation of any lien, encumbrance, security interest, charge or
claim of any kind upon any of the properties or assets of Pangea other
than liens created by this Agreement.
3.06 FINANCIAL STATEMENTS.
(a) Sellers have provided or made available to Purchaser: (i)
the audited consolidated balance sheets as of December 31, 1996 and
December 31, 1995, and the related audited consolidated statements of
income, changes in stockholders' equity and cash flows for the periods
covered thereby and (ii) the audited consolidated balance sheet as of
March 31, 1997 and the related audited consolidated statements of income,
changes in stockholders' equity and cash flows for the three-month period
then ended (the "Financial Statements").
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(b) The Financial Statements present fairly in accordance with
GAAP consistently applied the financial condition of Pangea at such dates
and the results of its operations and its cash flows for the fiscal
periods then ended.
3.07 LIABILITIES.
Except as reflected in the Financial Statements, there is no
material liability, obligation or indebtedness, secured or unsecured
(whether absolute, accrued, contingent or otherwise, and whether due or
to become due) that is required by GAAP to be set forth on a balance
sheet.
3.08 CONDUCT OF BUSINESS.
Pangea and ▇▇▇▇▇ each represent and warrant, and all other Sellers
represent and warrant to their knowledge after due inquiry, that since
December 31, 1996 (the "Balance Sheet Date"), Pangea has conducted its
businesses and operations in a manner consistent with past practices.
Except as specified in this Agreement and except as set forth on Schedule
3.08, since the Balance Sheet Date, there has not been: (i) any
declaration or payment of dividends or any transfer of assets of any kind
whatsoever to any stockholder with respect to any shares of capital
stock; (ii) any material transaction not in the ordinary course of
business, consistent with past practices; (iii) any Material Adverse
Change; (iv) any damage, destruction or loss, whether or not covered by
insurance, which has had or may have a Material Adverse Effect; (v) any
sale or transfer of any assets or any cancellation of any debts or
claims, except sales in the ordinary course of business of inventory or
of other tangible personal property not required in its businesses or the
cancellation of any debts or claims in the ordinary course of business;
(vi) any material mortgage, pledge or subjection to lien, charge or
encumbrance of any kind, of any properties or assets; (vii) any increase
in, or commitment to increase, the compensation payable or to become
payable to any officer, director, employee or agent, or any bonus payment
or similar arrangement made to or with any of such officers, directors,
employees or agents; (viii) any adoption of a plan or agreement or
amendment to any existing plan or agreement (or commitment for the same)
providing any new or additional benefits to employees, officers or
directors; (ix) any material alteration in the manner of keeping its
books, accounts or records, or in the accounting practices therein
reflected; (x) any borrowing to or from any shareholder; or (xi) any
other event or condition of any character that has had a Material Adverse
Effect.
3.09 REAL AND LEASED PROPERTY.
(a) Pangea owns no Real Property. Set forth on Schedule 3.09A
hereto is a complete list and a description of the Leased Property. True
and complete copies of the Property Leases have been delivered or made
available to Purchaser.
(b) There are no continuing and unremedied or unwaived material
breaches of or material events of default with respect to any material
property lease, and no events have
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occurred that, with the giving of notice or lapse of time or both, would
constitute a material breach thereof or a material event of default with
respect thereto.
3.10 PERSONAL PROPERTY.
(a) Except for the security interests set forth on Schedule 3.14,
Pangea has good and marketable title to each material item of personal
property reflected in the Financial Statements as being owned by it, free
and clear of all material liens, leases, encumbrances, claims and/or
bailment and storage agreements, equities, conditional sales contracts,
security interests, charges and restrictions;
(b) Each item of material personal property leased by Pangea is
in such condition, normal wear and tear excepted, that upon the return of
such property to its owner in its present condition at the end of the
relevant lease term or as otherwise contemplated by the applicable
agreement between Pangea and the owner or lessor thereof, the obligations
of Pangea to such owner or lessor will be discharged without the
requirement for any material payment; and
(c) The personal property set forth on the Financial Statements
taken as a whole is, to the extent currently used in operations, in
reasonably good operating condition and repair, normal wear and tear
excepted, and is fit for its intended purposes.
3.11 PATENTS, TRADEMARKS, TRADE NAMES, ETC.
(a) Schedule 3.11A hereto lists all patents, trademarks, trade
names and registered copyrights owned and currently used by Pangea and
all material licenses and other material agreements relating thereto.
(b) There are no material agreements relating to third party
technology, know-how and processes that Pangea is licensed or authorized
to use, excluding any software or related items.
(c) Pangea is the record owner of and holds free from material
contractual restrictions and any other material restriction except those
imposed by Law, all such scheduled patents, trademarks, trade names and
registered copyrights. No material claim by any person exists or, is
threatened against any Pangea (A) with respect to the use by any of them
of any of such scheduled trademarks, trade names, copyrights or
technology, or (B) for patent infringement; and no material claim by
Pangea exists against any person (Y) with respect to the use by such
person of any of such scheduled trademarks, trade names, copyrights or
technology, or (Z) for patent infringement.
3.12 INVENTORY.
Pangea has good and marketable title to inventory reflected in the
Financial Statements and all inventory purchased or created since the
Balance Sheet Date (other than
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inventory disposed of in the ordinary course of business since such
date), free and clear of all liens, leases, encumbrances, claims under
bailment and storage agreements, equities, conditional sales contracts,
security interests, charges and restrictions, except for liens, if any,
for personal property taxes not yet due. None of Pangea's sources of
supply, which in Pangea's reasonable judgment cannot be replaced on
substantially the same terms and conditions (including price), have
terminated or threatened in writing to terminate their making available
such supply to Pangea.
3.13 RECEIVABLES.
Except for security interests disclosed on Schedule 3.14, Pangea
has good title to all of its material receivables including notes
receivable, accounts receivable and trade acceptances receivable, whether
billed or unbilled (collectively the "Receivables") and such Receivables
have arisen in the ordinary course of business.
3.14 CONTRACTS.
(a) Schedule 3.14 hereto lists each: (i) indenture, mortgage,
note, installment obligation, agreement or other instrument relating to
the borrowing of money by Pangea or the guaranty of any obligation for
the borrowing of money by Pangea; (ii) contract, agreement, purchase
order, license or written commitment for the purchase or sale of goods,
materials, supplies or services; and (iii) other contracts, agreements or
other instruments related to the business of Pangea (collectively, the
"Contracts"), to which Pangea is a party or by which any of its assets
are bound, except for (Y) any Contract for the purchase or sale by Pangea
of inventory, materials or supplies in the ordinary course of business
(Z) any Contract that is terminable by Pangea without penalty on ninety
days' or less notice.
(b) Pangea and ▇▇▇▇▇ each represent and warrant, and all other
Sellers represent and warrant to their knowledge after due inquiry, that
(i) each Contract is, in all material respects, a valid and binding
obligation of Pangea, entered into in the ordinary course of business on
an arms'-length basis and, of the other party or parties thereto, except
as the enforceability of such Contracts may be limited by bankruptcy,
insolvency, reorganization or other laws relating to or affecting the
enforceability of creditors' rights generally and except that the remedy
of specific performance or similar equitable relief may be subject to
equitable defenses and to the discretion of the court before which
enforcement is sought and (ii) there exists no default by, or event that
with notice or lapse of time or both would constitute a default by,
Pangea under any such Contract.
(c) No person holds any powers of attorney from Pangea.
3.15 INSURANCE.
Schedule 3.15 hereto lists all policies of fire, liability, health,
life, accident, disability, workmen's compensation, fiduciary, stop-loss,
key-man, and other forms of insurance owned or held by or for the benefit
of and insuring either Pangea, or any employee, officer, or
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director thereof as of the date of this Agreement. As of the date of
this Agreement, all such policies are in full force and effect, all
premiums with respect thereto covering all periods up to and including
the date hereof have been paid or accrued in appropriate month-end
financial statements (other than retrospective premiums which may be
payable with respect to comprehensive general liability and workmen's
compensation insurance policies), and no notice of cancellation or
termination has been received with respect to any such policy which was
not replaced on substantially similar terms prior to the date of such
cancellation. The insurance policies set forth on Schedule 3.15 will not
terminate or lapse by reason of the execution of this Agreement or the
consummation of the Transactions. The insurance policies set forth on
Schedule 3.15 are sufficient, in all material respects, for compliance
with all requirements of law and of all agreements to which Pangea is a
party.
3.16 LABOR MATTERS; PERSONNEL.
Pangea and ▇▇▇▇▇ each represent and warrant, and all other Sellers
represent and warrant to their knowledge after due inquiry, that Pangea
is in compliance with all applicable Laws respecting employment and
employment practices, terms and conditions of employment and wages and
hours, and is not engaged in any unlawful discrimination or unfair labor
practices or other violations of Law and there is no audit or
investigation of, or complaint against, Pangea regarding labor or
employment matters.
3.17 ENVIRONMENTAL MATTERS.
(a) The Company is in compliance with all statutes, regulations,
rules, ordinances, codes, licenses, permits, orders, approvals, plans,
authorizations, concessions, franchises, and agreements that relate to
the protection of health or the environment and that were issued by any
governmental authority having jurisdiction over the Company, and all
applicable judicial and administrative and regulatory decrees, judgments
or orders and all covenants running with the land that relate to the
protection of health or the environment, in each case as such were in
effect on or before the Closing Date. The Company has obtained and
maintained in force all permits or licenses that relate to the protection
of health or the environment that are required for the business of the
Company.
(b) Neither the Company nor any previous owner, tenant, occupant
or user of any real property owned or leased by the Company, or any other
person, has engaged in or allowed any operation or activity upon, or any
use or occupancy of, any real property owned, leased or used by the
Company for the purpose of or in any way involving the handling,
manufacture, treatment, storage, use, generation, release, discharge,
processing, recycling, refining, dumping or disposal of any Hazardous
Materials on, under, in or about such real property, or transported or
arranged for transport of any Hazardous Materials to, from or across such
real property, in each case, which constitutes or constituted a breach of
any applicable law. For the purposes of this Section 4.13, the term
"Hazardous Material" shall mean any substance: (i) that is defined as a
"hazardous waste," "hazardous substance," "hazardous material" or
"pollutant or contaminant" under any applicable environmental law
Pangea Stock Purchase Agreement 12
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or regulation; (ii) that is toxic, explosive, corrosive, flammable,
infectious, reactive, radioactive, carcinogenic, mutagenic or otherwise
hazardous and is regulated by any governmental authority; (iii) the
presence of which on any real property causes or threatens to cause a
nuisance upon such property or to adjacent properties or poses or
threatens to pose a hazard to the health or safety of persons on or about
any real property; (iv) the presence of which on adjacent properties
could constitute a trespass by the Company; (v) that is or contains
petroleum, petroleum products, petroleum derivatives, natural gas or
liquefied natural gas; or (vi) that contains PCBs, asbestos (whether
friable or nonfriable) or urea formaldehyde foam insulation.
3.18 EMPLOYEE BENEFIT PLANS.
(a) Attached hereto as Schedule 3.18 is a complete list of each
current employment contract and consulting agreement and each material
deferred compensation, retirement, bonus, insurance, annuity, incentive
compensation, restricted stock, stock option, stock purchase, savings,
change in control, plant closing, fringe benefit, severance or
termination pay agreement or plan, loan program, and any other material
employee benefit plan, agreement, arrangement or commitment, whether
formal or informal, maintained, entered into or contributed to by Pangea,
or with respect to which Pangea may have any liability for the benefit of
any current or former director, officer, consultant, or employee thereof
(the "Plans"). Each Plan can be amended or terminated at any time by
Pangea without the need for any notice or approval and without any
material liability thereunder other than for benefits accrued prior
thereto. Pangea is not in default in any material respect under any Plan.
(b) Pangea does not now maintain or contribute to, nor has it
ever in the past maintained or contributed to, any employee benefit plan
subject to ERISA.
3.19 GOVERNMENTAL AUTHORIZATIONS AND REGULATIONS.
Pangea and ▇▇▇▇▇ each represent and warrant, and all other Sellers
represent and warrant to their knowledge after due inquiry, that the
licenses, permits, franchises, certificates and other governmental
authorizations held by Pangea are valid and sufficient for all businesses
conducted by it and there exists no fact, error or omission relevant to
any such license, permit, franchise, certificate or other governmental
authorization that would permit the revocation or withdrawal, or the
threatened revocation or withdrawal thereof. Pangea will continue to
have the use and benefit thereof and the rights granted thereby after the
execution of this Agreement and the consummation of the Transactions have
occurred. The businesses of Pangea is being conducted in compliance in
all material respects with all applicable Laws of all Governmental
Authorities.
Pangea Stock Purchase Agreement 13
15
3.20 TAXES.
(a) Except as set forth on Schedule 3.20, all Tax Returns that
are required to be filed by Pangea have been filed and all amounts shown
thereon to be due have been paid in full. Pangea has withheld and paid
all Taxes required to have been withheld and paid in connection with
amounts paid or owing to any employee, independent contractor, creditor,
stockholder or other party.
(b) There is no material dispute or claim relating to any Tax
liability of Pangea that has been raised by any Governmental Authority in
writing.
(c) Sellers have delivered to Purchaser correct and complete
copies of any income Tax Returns, examination reports, and statements of
deficiency assessed against or agreed to by Pangea.
(d) Pangea is not, and has not been (i) a party to a tax sharing
agreement or similar arrangement or (ii) a member of any affiliated group
filing a consolidated federal income tax return or has any liability for
the Taxes of any person under Treasury Regulation Section 1.1502-6, under
any similar provisions of state, local or foreign law, by contract, or
otherwise.
3.21 TRANSACTIONS WITH SELLERS, OFFICERS, DIRECTORS AND
EMPLOYEES.
Except as set forth in Schedule 3.21, and other than as
contemplated by this Agreement, except for accrued but unpaid salary and
employee benefits, there are no amounts owing from Pangea to any Seller
or to any officer or director of Pangea or any relative of any such
officer or director, nor are there any amounts owing from any of such
persons to Pangea.
3.22 LITIGATION; COMPLIANCE WITH LAW.
Pangea and ▇▇▇▇▇ each represent and warrant, and all other Sellers
represent and warrant to their knowledge after due inquiry, that:
(a) (i) There is no pending, threatened or existing action, suit,
proceeding, claim or investigation, (including, without limitation, any
action, suit, proceeding, claim or investigation regarding any
Environmental Requirements) at law or in equity, before or by any court,
arbitrator or Governmental Authority, against Pangea, its assets,
properties or business, and (ii) Pangea and its assets, properties or
businesses are not subject to any notice, writ, injunction, order or
decree of any court, arbitrator or Governmental Authority. Pangea is not
in default with respect to any notice, writ, injunction, order or decree
known to or served upon it by any court, arbitrator or Governmental
Authority.
(b) There is no action, suit, claim, inquiry, proceeding or
investigation at law or in equity by or before any court, arbitrator or
Governmental Authority, nor is any of the
Pangea Stock Purchase Agreement 14
16
foregoing threatened which involves any Seller which questions or
challenges the validity of this Agreement or any action to be taken by
any Seller or Pangea pursuant to this Agreement or in connection with the
Transactions.
3.23 DISTRIBUTORS AND SUPPLIERS.
Pangea and ▇▇▇▇▇ each represent and warrant, and all other Sellers
represent and warrant to their knowledge after due inquiry, that Pangea
is not involved in any controversy with any of its distributors,
customers or suppliers, and no customer of Pangea has terminated or
threatened in writing to terminate a agreement with Pangea relating to
its purchase of products from any of such entities.
3.24 PRODUCT WARRANTIES; PRODUCT RECALLS.
(a) Schedule 3.24A hereto contains the forms of express product
warranties and guaranties that have been used by Pangea in its businesses
at any time. Pangea has not offered any different forms of express
product warranties and guaranties at any time. No defects exist in the
products sold by Pangea that could result in any increase in such product
warranty expense claims that in the aggregate could have a Material
Adverse Effect.
(b) None of the products designed, manufactured, packaged,
labeled, shipped or sold in connection with the business has been subject
to, or is currently subject to, any recall mandated by any Governmental
Authority.
3.25 FINDERS; SUCCESS FEE.
No investment banker, broker, finder or other intermediary has been
retained by any Seller or Pangea in connection with the Transactions who
is or might be entitled to a fee or commission in connection with the
proposed sale of the Shares or any other term of this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to each Seller as follows:
4.01 ORGANIZATION.
Purchaser is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has all
requisite corporate power and authority to own, lease and operate its
properties and to carry on its business as now being conducted.
Pangea Stock Purchase Agreement 15
17
4.02 AUTHORITY RELATIVE TO THIS AGREEMENT.
Purchaser has full corporate power and authority to execute and
deliver this Agreement and to consummate the Transactions. The execution
and delivery of this Agreement and the consummation of the Transactions
have been duly and validly authorized by the board of directors of
Purchaser and no other corporate proceedings on the part of Purchaser are
necessary to authorize this Agreement or to consummate the Transactions.
This Agreement has been duly and validly executed and delivered by
Purchaser and constitutes a valid and binding agreement of Purchaser,
enforceable against Purchaser in accordance with its terms, except as the
same may be limited by bankruptcy, insolvency, reorganization, or other
laws relating to or affecting the enforceability of creditors' rights
generally, and except that the remedy of specific performance or similar
equitable relief may be subject to equitable defenses and to the
discretion of the court before which enforcement is sought.
4.03 CONSENTS AND APPROVALS; NO VIOLATION.
The execution and delivery of this Agreement by Purchaser does not,
and the performance by it of its obligations hereunder and the
consummation of the Transactions, will not, directly or indirectly: (i)
conflict with or violate any provision of its certificate of
incorporation or by-laws (or other similar governing documents); (ii)
require any consent, approval, authorization or permit of, or filing with
or notification to, any Governmental Authority, except where the
requirement to obtain such consent, approval, authorization or permit, or
to make such filing or notification, results from the regulatory status
or business of Pangea, or results from any other facts that specifically
relate to the business or activities in which Pangea is or proposes to be
engaged; (iii) result in a material default, termination, cancellation or
acceleration (or give rise to any material right of termination,
cancellation or acceleration), under any of the terms, conditions or
provisions of any material note, bond, mortgage, indenture, license,
lease, agreement, or other material instrument or material obligation to
which Purchaser is a party or by which it or any of its assets may be
bound; or (iv) violate any material order, writ, injunction, decree,
statute, rule or regulation applicable to Purchaser or any of its assets.
4.04 ACQUISITION OF STOCK FOR INVESTMENT.
Purchaser is acquiring the Shares for investment and not with a
view toward, or for sale in connection with, any distribution thereof,
nor with any present intention of distributing or selling the Shares.
Purchaser agrees that the Shares may not be sold, transferred, offered
for sale, pledged, hypothecated or otherwise disposed of without
registration under the Securities Act of 1933 except pursuant to an
exemption from such registration available under such Act.
Pangea Stock Purchase Agreement 16
18
4.05 LITIGATION.
There is no action, suit, claim, inquiry, proceeding or
investigation at law or in equity, by or before any court, arbitrator or
Governmental Authority, or to Purchaser's knowledge, is any one of the
foregoing threatened, against or involving Purchaser or any of its
Affiliates which questions or challenges the validity of this Agreement
or any action to be taken by Purchaser, any of its Affiliates, or Sellers
pursuant to this Agreement or in connection with the Transactions.
4.06 FINDERS; SUCCESS FEE.
Neither Purchaser nor any of its Affiliates has employed any
investment banker, broker, finder or other intermediary in connection
with the Transactions who is or might be entitled to a fee or commission
in connection with the proposed purchase of the Shares. Neither
Purchaser nor any of its Affiliates is a party to any agreement pursuant
to which any person is entitled to any success or other fee contingent
upon execution of this Agreement or consummation of the Transactions.
ARTICLE V
CLOSING CONDITIONS
5.01 CONDITIONS TO THE OBLIGATION OF SELLERS TO EFFECT THE
TRANSACTIONS.
The obligation of each Seller to effect the Transactions shall be
further subject to the fulfillment on or before the Closing Date of the
following conditions, any one or more of which may be waived by Sellers:
(a) Each of the obligations of Purchaser to be performed by it on
or before the Closing Date pursuant to the terms of this Agreement shall
have been duly performed on or before the Closing Date in all material
respects.
(b) All actions required to be taken by, or on the part of,
Purchaser to authorize the execution, delivery and performance of this
Agreement, and the consummation of the Transactions shall have been duly
and validly taken by its board of directors.
(c) Simultaneously with the Closing, Purchaser shall cause Pangea
to (i) repay, by wire transfer of immediately available funds to the
account designated by Edgewater, the principal amount of all outstanding
indebtedness set forth on Schedule 3.14 hereof owed by Pangea to ▇▇▇▇
▇▇▇▇▇▇▇▇▇ and Edgewater and (ii) release all loan guarantees by ▇▇▇▇
▇▇▇▇▇▇▇▇▇ and Edgewater in favor of Pangea set forth on Schedule 3.14
hereof.
Pangea Stock Purchase Agreement 17
19
5.02 CONDITIONS TO THE OBLIGATION OF PURCHASER TO EFFECT
THE TRANSACTIONS.
The obligations of Purchaser to effect the Transactions shall be
further subject to the fulfillment at or prior to the Closing Date of the
following conditions, any one or more of which may be waived by Purchaser:
(a) Each of the obligations of each Seller to be performed by
them on or before the Closing Date pursuant to the terms of this
Agreement shall have been duly performed in all material respects on or
before the Closing Date.
(b) All actions required to be taken by, or on the part of
Edgewater to authorize the execution, delivery and performance of this
Agreement, and the consummation of the Transactions, shall have been duly
and validly taken.
(c) Purchaser shall have received an opinion from ▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
counsel to Edgewater (which opinion may expressly rely as to matters of
fact upon certificates furnished by Edgewater and appropriate officers
and directors thereof and by public officials) dated as of the Closing
Date and substantially in the form of Exhibit A.
(d) There shall not have occurred between the Balance Sheet Date
and the Closing Date any Material Adverse Change.
(e) Sellers shall have delivered to Purchaser at the Closing the
following:
(i) stock certificates representing all of the Shares and
any other documents that Purchaser reasonably deems necessary or
desirable to transfer to it good and marketable title to all of the
Shares;
(ii) the stock books, stock ledgers, minute books and
corporate seals of Pangea and a certificate executed by the general
partner of Edgewater certifying that Edgewater has validly approved
this Agreement and the Transactions;
(iii) an incumbency certificate of Edgewater reasonably
acceptable to Purchaser; and
(iv) long-form good standing certificates as of a date no
more than five business days prior to the Closing for Pangea,
certified by the Secretary of State of the State of Delaware;
(v) duly executed consents to all Contracts requiring
consent.
(f) At the Closing, Pangea shall have delivered to the Purchaser
UCC-3 forms or other similar documentation reasonably satisfactory to
Purchaser to extinguish all security
Pangea Stock Purchase Agreement 18
20
interests against the property of Pangea relating to indebtedness to be
repaid by Purchaser at the Closing.
(g) Purchaser shall have received the resignation, effective on
the Closing Date, of each director of Pangea.
ARTICLE VI
INDEMNIFICATION
6.01 INDEMNIFICATION BY SELLERS.
Each Stockholder, but not Optionholder, jointly and severally,
indemnifies and holds harmless Purchaser and its officers, Affiliates,
successors and assigns (the "Purchaser Indemnified Parties") in respect
of any and all claims, losses, damages, liabilities and expenses
(including, without limitation, settlement costs and any legal or other
expenses for investigating or defending any actions or threatened
actions), together with interest thereon at the rate of eight percent
(8%) per annum, compounded annually, from the date incurred until paid,
reasonably incurred by the Purchaser Indemnified Parties in connection
with, arising from or as a result of (i) any breach on the part of any
Seller of any representation or warranty of Sellers contained in this
Agreement or any document delivered in connection herewith or (ii) any
breach on the part of any Seller of any covenant of Sellers contained in
this Agreement or any document delivered in connection herewith. All
indemnification payments shall be paid by Stockholders in immediately
available funds upon presentation by the Purchaser Indemnified Party of
invoices representing indemnifiable claims, and which invoices may be
paid as accrued. Notwithstanding the foregoing, the obligation of each
of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. Berkeley, III to indemnify
Purchaser under this Article VI shall be limited to the portion of the
Purchase Price received by such Stockholder, as shown on Attachment 2.02B
hereof.
6.02 INDEMNIFICATION BY PURCHASER.
Purchaser indemnifies and holds harmless Sellers and any officers,
Affiliates, successors and assigns of any Seller (the "Seller Indemnified
Parties") in respect of any and all claims, losses, damages, liabilities
and expenses (including, without limitation, settlement costs and any
legal or other expenses for investigating or defending any actions or
threatened actions), together with interest thereon at the rate of eight
percent (8%) per annum, compounded annually, from the date incurred until
paid, reasonably incurred by the Seller Indemnified Parties in connection
with, arising from or as a result of (i) any breach on the part of
Purchaser of any representation or warranty of Purchaser contained in
this Agreement or any document delivered in connection herewith or (ii)
any breach on the part of Purchaser of any covenant of Purchaser
contained in this Agreement or any document delivered in connection
herewith. All indemnification payments shall be paid by Purchaser in
Pangea Stock Purchase Agreement 19
21
immediately available funds upon presentation by the Seller Indemnified
Party of invoices representing indemnifiable claims, and which invoices
may be paid as accrued.
6.03 CLAIMS FOR INDEMNIFICATION; DEFENSE OF CLAIMS.
(a) In order for an Indemnified Party to be entitled to any
indemnification provided for under this Agreement in respect of, arising
out of or involving a claim made by any person against the Indemnified
Party (a "Third Party Claim"), the Indemnified Party must notify Sellers'
Representative (in the event of indemnification under Section 6.01
hereof) or the Purchaser (in the event of indemnification arising under
Section 6.02 hereof) in writing of the Third Party Claim within a
reasonable time after receipt of such Third Party Claim; provided,
however, that failure to give such notification shall not affect the
indemnification provided hereunder except to the extent the indemnifying
parties shall have been actually prejudiced as a result of such failure.
Thereafter, the Indemnified Party shall give to Sellers' Representative
or Purchaser, as the case may be, within a reasonable time after the
Indemnified Party's receipt thereof, copies of all notices and documents
(including court papers) received by the Indemnified Party relating to
the Third Party Claim.
(b) In connection with any Third Party Claim which may give rise
to a claim for indemnification pursuant to Section 6.01 or Section 6.02,
the Indemnified Party shall consult with the indemnifying party with
respect to the defense or settlement of such claim; provided, however,
that such consultation shall not limit or otherwise affect the
Indemnified Party's conduct of the defense or settlement of any such
claim.
6.04 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
The representations, warranties, covenants and agreements contained
in this Agreement and in any document delivered in connection herewith
shall survive the Closing and shall remain in full force and effect for a
period of three years from the Closing Date, regardless of any
investigation made by or on behalf of any party hereto.
6.05 RELEASE AND COVENANT NOT TO ▇▇▇.
(a) Sellers release and forever discharge Pangea and Purchaser
from any and all claims arising by reason of, from, or in connection with
any agreement, contract, arrangement or understanding, written or oral
(other than this Agreement), between or among Sellers, or any of them,
and Pangea and/or Purchaser, which any Seller ever had, now has or may
claim to have against Pangea and/or Purchaser, up through the date
hereof. Sellers covenant that they shall forever refrain from
initiating, filing, instituting, impleading, cross-claiming against,
maintaining or proceeding upon any such claim against Pangea and/or
Purchaser.
(b) Purchaser releases and forever discharges Sellers, and any of
them, from any and all claims arising by reason of, from, or in
connection with any agreement, contract, arrangement or understanding,
written or oral (other than this Agreement), between or among
Pangea Stock Purchase Agreement 20
22
Purchaser and Sellers, or any of them, which Purchaser ever had, now has
or may claim to have against Sellers, or any of them, up through the date
hereof. Purchaser covenants that it shall forever refrain from
initiating, filing, instituting, impleading, cross-claiming against,
maintaining or proceeding upon any such claim against Sellers, or any of
them.
(c) The release and covenant not to ▇▇▇ contained in this Section
6.05 shall not in any way release, waive, affect the enforceability of,
or estop any right to initiate, file, institute, implead, cross-claim
against, maintain or proceed upon, any claim arising under or related to
this Agreement, including, without limitation, any claim for
indemnification under this Article VI.
ARTICLE VII
MISCELLANEOUS PROVISIONS
7.01 AMENDMENT AND MODIFICATION.
Subject to applicable law, this Agreement may be amended, modified
or supplemented only by written agreement of all of the parties hereto.
7.02 WAIVER OF COMPLIANCE; CONSENTS.
Except as otherwise provided in this Agreement, any failure of any
of the parties to comply with any obligation, covenant, agreement or
condition herein may be waived by the party entitled to the benefits
thereof only by a written instrument signed by the party granting such
waiver, but such waiver or failure to insist upon strict compliance with
such obligation, covenant, agreement or condition shall not operate as a
waiver of, or estoppel with respect to, any subsequent or other failure.
7.03 NOTICES.
(a) All notices and other communications hereunder (the
"Notices") shall be in writing and shall be deemed given if delivered
personally or by overnight delivery service or facsimile transmission,
or mailed by registered or certified mail (return receipt requested),
postage prepaid, to the parties at the addresses set forth at subsection
7.03(b) below (or at such other address for a party as shall be specified
by like Notice); provided, however, that notices of a change of address
shall be effective only upon receipt thereof. Unless a Notice delivered
by facsimile transmission is transmitted on other than a business day, in
which case it shall be conclusively deemed to be delivered on the next
business day thereafter, all Notices delivered by facsimile transmission
shall be conclusively deemed to be delivered and received on the date on
which such facsimile is transmitted. Notices delivered by overnight
delivery service shall be conclusively deemed to be delivered and
received on the next business day after such Notice is timely deposited
with such overnight delivery service.
Pangea Stock Purchase Agreement 21
23
(b) Subject to the foregoing subsection 7.03(a), all Notices
shall be given to the parties at the following addresses:
(i) If to Purchaser, to:
Fuisz Technologies Ltd.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Executive Vice President and
Chief Financial Officer
with a copy to:
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
(ii) If to Sellers, to:
Edgewater Private Equity Fund, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
7.04 ASSIGNMENT.
This Agreement and all of the provisions hereof shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, but neither this Agreement nor any of
the rights, interests or obligations hereunder shall be assigned by any
party hereto without the prior written consent of the other party except
that Purchaser may assign all or any part of its rights herein to one or
more wholly-owned subsidiaries; nor is this Agreement intended to confer
upon any other person except the parties hereto any rights or remedies
hereunder.
7.05 GOVERNING LAW.
This Agreement shall be governed by the laws of the State of New
York (regardless of the laws that might otherwise govern under applicable
New York principles of conflicts of law) as to all matters, including,
without limitation, matters of validity, construction, effect,
performance and remedies.
Pangea Stock Purchase Agreement 22
24
7.06 SELLERS' REPRESENTATIVE.
Each Seller hereby appoints Sellers' Representative as its
representative for all purposes under this Agreement and Sellers'
Representative hereby agrees to so represent each and all of the Sellers.
7.07 CONSENT TO JURISDICTION.
(a) The parties irrevocably agree that any legal action, suit or
proceeding arising out of or relating to this Agreement or the
Transactions may be brought in the United States District Court for the
Southern District of New York located in the borough of Manhattan in the
City of New York.
(b) By the execution and delivery of this Agreement, Purchaser
and Sellers irrevocably submit to the non-exclusive jurisdiction of such
court in any such action, suit or proceeding. Sellers irrevocably agree
to designate, appoint and empower one authorized agent reasonably
acceptable to Purchaser to receive for and on their behalf service of any
summons, complaint or other legal process in any such action, suit or
proceeding in such district. Sellers shall maintain such agent as their
agent as described above for a period beginning on the Closing Date and
terminating on the fifth anniversary of the Closing Date.
7.08 SEVERABILITY.
If any term or provision specified herein is held by a court of
competent jurisdiction to be in violation of any applicable local, state
or federal ordinance, statute, law, administrative or judicial decision,
or public policy, and if such court should declare such term or provision
to be illegal, invalid, unlawful, void, voidable, or unenforceable as
written, then such provision shall be given full force and effect to the
fullest possible extent that it is legal, valid and enforceable, and the
remainder of the terms and provisions herein shall be construed as if
such illegal, invalid, unlawful, void, voidable or unenforceable term or
provision was not contained herein, but only to the extent that giving
effect to such provision and the remainder of the terms and provisions
hereof shall be in accordance with the intent of the parties.
7.09 COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
7.10 INTERPRETATION.
The article and section headings contained in this Agreement are
solely for the purpose of reference, are not part of the agreement of the
parties and shall not in any way affect the meaning or interpretation of
this Agreement. No rule of construction shall be applied to the
disadvantage of a party because that party was responsible for the
preparation
Pangea Stock Purchase Agreement 23
25
of this Agreement or any part hereof. As used in this Agreement, (i) the
term "person" shall mean and include an individual, a partnership, a
joint venture, a corporation, a trust, an unincorporated organization and
a governmental entity or any department or agency thereof and (ii) the
term "knowledge" when used with reference to any corporation or other
entity shall encompass the knowledge of each officer and each director of
such entity.
7.11 ENTIRE AGREEMENT.
This Agreement, including the annexes, documents, schedules,
certificates, exhibits and instruments referred to herein, embody the
entire agreement and understanding of the parties hereto in respect of
the Transactions. There are no restrictions, promises, representations,
warranties, covenants or undertakings, other than those expressly set
forth or referred to herein or therein. This Agreement supersedes all
prior agreements and understandings between the parties with respect to
the Transactions.
7.12 EXPENSES.
Each party hereto will pay all costs and expenses incurred by it or
any of its Affiliates in connection with this Agreement and the
Transactions, including but not limited to costs and expenses of counsel,
accountants and other consultants; provided, however, that Purchaser
shall bear the cost of the May 31, 1997 audit of Pangea for the
three-month period then ended.
7.13 PUBLIC ANNOUNCEMENTS.
During the three months following the Closing Date, no information
regarding this Agreement shall be released by any of the Sellers to third
parties without the prior written consent of Purchaser.
Pangea Stock Purchase Agreement 24
26
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
FTL ACQUISITION INC.
By: /s/
---------------------------------
Title:
PANGEA, LTD.
By: /s/
---------------------------------
Title:
EDGEWATER PRIVATE EQUITY FUND, L.P.
By: /s/
---------------------------------
Title:
/s/
------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D.
/s/
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇
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Pangea Stock Purchase Agreement 25
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Pangea Stock Purchase Agreement 26
