Exhibit 13 (b) (3) (e)
Purchase and Sale Agreement
This Purchase and Sale Agreement (the "Agreement") is entered into this
18th day of November 1997 by and between SDC International, Inc., a Delaware
corporation, with its principal office located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (,,Buyer"), and Motokov International, Joint Stock Company
with its registered office in ▇▇▇▇▇▇ ▇, ▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
inscribed in the Companies Register of the Regional Commercial Court in
Prague, Volume B. Inset 116 ("Seller").
RECITALS
A. Seller owns 2, 114 shares in "Bearer" name, which are all of the
issued and outstanding shares of SKOBOL Joint Stock Company, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇,
▇. ▇. ▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇, Bolivia ("the Company").
B. Seller desires to sell and Buyer desires to purchase all of the
shares of the shares of stock of the Company for the mutual consideration and
upon the terms and conditions set forth in this Agreement.
NOW, THEREFOR, in consideration of the premises, the provisions and the
respective agreements hereinafter set forth, the parties hereto hereby agree
as follows:
I. Purchase and Sale of Shares
1. 1. Agreement to Purchase and Sell. Upon the terms and subject to the
conditions set forth in this Agreement and upon the representations and
warranties made herein by each of the parties to the others, at the Closing (
as such term is hereinafter defined) Seller shall sell, grant, convey, assign,
transfer and deliver to Buyer, and Buyer shall purchase and acquire from
Seller, all of the shares of stock of the Company.
1. 2. Purchase Price. Payment. Upon the terms and subject to the
conditions set forth in this Agreement, in reliance upon the representations,
warranties, covenants and
agreements of Seller contained herein, and in exchange for 100% of the shares
of stock of the Company, Buyer shall pay to Seller the sum of USD 78,000.00.
Buyer agrees that, on the Closing Date, the sum of USD 78,000.00 shall be
credited to Seller's account # 01-▇▇▇▇▇▇▇▇/0300 in Ceskoslovenska Obchodni
Banka Praha.
1. 3. Closing. The Closing of the purchase and sale of the shares as
provided herein ( the "Closing") will be at the offices ofthe Seller, at 10:00
a. m., local time, on a date selected by Buyer on or before November 30, 1997,
or at such other place or at such other date and time as Buyer and Seller may
mutually agree. Such date and time of Closing isherein referred to as the
"Closing Date".
2. Representations and Warranties of Seller. Seller hereby represents
and warrants to Buyer that to the best of his knowledge:
2. 1. Existence. Good standing. Corporate. Authority. Compliance with
Law. The company is duly established, validly existing and in good standing
under the laws of Bolivia, and is inscribed in the General Directory of the
Register of Trade Joint Stock Companies under the Register Number 07-002991,
approved by the Administrative Resolution No. 189/79 of May 20, 1979, with the
social capital of 114,000 Bolivian Pesos of paid capital and authorized
capital of 3,171,000 Bolivian Pesos. The Company has all requisite corporate
power and authority to own its property and carry on its business as now
conducted. The Company is not in default with respect to any court,
governmental authority or arbitration board or tribunal to which the Company
is a party or its subject, and the Company is not in violation of any laws,
ordinances, governmental rules or regulations to which it is subject. The
Company has obtained all licenses, permits and other authorizations and has
taken all action required by any applicable laws or governmental regulations
in connection with its businesses as now conducted.
2. 2. Validity and Effect of Agreements. This Agreement constitutes,
and all agreements and documents contemplated hereby when executed and
delivered pursuant hereto for value received will constitute, the valid and
legally binding obligations of Seller enforceable in accordance with their
terms, except that enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent transferor other similar laws relating to the
enforcement of creditors right generally and general equitable principles. The
execution and delivery of this Agreement by Seller does not, and the
consummation by Seller of the transaction contemplated hereby will not, (i)
require the consent, approval or authorization of, or declaration, filling or
registration with any governmental or regulatory authority or any third party,
(ii) result in the breach of any term or provision of, or constitute a default
under, or result in the acceleration of or entitle any party to accelerate
(whether after the giving of notice or the lapse of time or both) any
obligation under, to result in the creation or imposition of any lien, charge,
pledge, security interest or other encumbrance (collectively, "Encumbrances")
upon any part of the property of the Company pursuant to any provision of any
order, judgment, arbitration award, injunction, decree, indenture, mortgage,
lease, license, lien or other agreement or instrument to which the Seller or
the Company is a party or by which either of them is bound. or (iii) violate
or conflict with any provision of the agreements, bylaws or articles of
incorporation of the Company, as amended to the date of this Agreement.
2. 3. Records. Seller has delivered or made available, or will deliver
and make available on or before Closing, to Buyer and its counsel true and
complete copies of the articles of corporation, bylaws, minutes of all
meetings of directors and shareholders and certificates reflecting all actions
taken by the directors or shareholders without a meeting and other
organizational documents of the Company and such documents are in full force
and effect at the date of this Agreement.
2. 4. Financial Records. Seller has furnished to Buyer true and
accurate financial records, including its inventory and financial statement of
the Company as of August 31, 1997, which are attached hereto and made part
here of as Exhibit "A" and Exhibit "B".
2. 5. Absence of Certain Changes or Events Since the Date of the
Financial Records. Since the date of the financial records, the Company has
not:
(a) incurred any obligation or liability ( fixed or contingent), except
normal trade or business obligations incurred in the ordinary course of
business and consistent with past practice, none of which is materially
adverse, and except in connection with this Agreement and the transactions
contemplated hereby.
(b) mortgaged, pledged or subjected to any Encumbrance any of their
assets or properties (other than mechanic's, materialman's and similar
statutory liens arising in the ordinary course of business and purchase
money security interests arising as a matter of law between the date of
delivery and payment).
(c) transferred, leased or otherwise disposed of any of their assets or
properties except for fair consideration in the ordinary course of business
and consistent with past practice or, except in the ordinary course of
business and consistent with past practice, acquired any assets or properties.
(d) canceled or compromised any debt or claim, except in the ordinary
course of business and consistent with past practice,
(e) waived or released any rights of material value,
(f) transferred or granted any rights under any leases, licenses,
agreements, patents, trademarks, trade names, service marks or copyrights,
(g) made or granted any wage or salary increase applicable to any group
classification of employees generally, entered into any employment contract
with, or made any loan to, or entered into any material transaction of any
other nature with, any officer or employee,
(h) suffered any casualty loss or damage (whether or not such loss or
damage shall have been covered by insurance) which affects in any material
respect their ability to conduct business, or
(i) declared any dividends or bonuses or authorized or affected any
amendment or restatement of its articles of incorporation or bylaws or taken
any steps looking to dissolution or liquidation.
2. 6. Title to Propertv. Encumbrances. The Company has good, valid
and marketable title to all of its assets which are free and clear of all
encumbrances.
2. 7. Employees. Emplovrnent Arrangements.
(a) The Company is not presently subject to any collective bargaining
agreement nor are there any known union organizing efforts underway nor are
there any claims or actions pending before the National Labor Relations Board.
The Company has not encountered any actual or threatened employee strike, work
stoppage, slowdown or lockout, or had any material adverse change in its
relations with employees, agents, customers or suppliers for the three years
prior to the date of this Agreement .
(b) The consummation of the transactions contemplated by this Agreement
will not (i) entitle any current or former employee or current or former
officer or director of the Company to severance pay, unemployment,
compensation or any other payment except as expressly provided in this
Agreement, or (ii) accelerate the time or payment of vesting or increase the
amount of compensation due any such employee, officer or director.
2.8. No Breach or Default. As would be related to the shares acquired
hereunder, the Company is not in default under any contract to which it is
party or by which it is bound, nor has any event occurred which, after the
giving of notice or the passage of time or both, would constitute a default
under any such contract. Seller has no reason to believe that the parties to
such contracts will not fulfill their obligations under any such contracts in
all material respects or are threatened with insolvency.
2. 9. Litigation. There are no claims, actions, suits, proceedings or
investigations pending or threatened before any federal, state or local court
or governmental or regulatory authority, domestic or foreign, or before any
arbitrator of any nature, brought by or against Seller or any of its officers,
directors, employees, agents or agitates involving, affecting or relating to
any acquired assets of the Company or the transactions contemplated by this
Agreement, nor does there are any facts which might reasonably be expected to
give rise to any such suit, proceeding, dispute or investigation, except for a
lawsuit related to collection of amounts due to Company, where such said amount
of liability by the Company to be no greater than USD 30,000..00 Neither the
Company nor any of its assets or properties is subject to any order, writ,
judgment, award, injunction or decree of any federal, state or local court or
governmental or regulatory authority or arbitrator, which adversely affects or
might reasonably be expected to adversely affect its respective assets,
properties, business operation, prospects, not income or financial condition
or which would or might reasonably by expected to interfere with the
transactions contemplated by this Agreement.
2. 10. Guarantee and Warranty of Liabilities of Company. guarantees
and warrants to Buyer that except for payables mentioned in clause 4.10 the
liabilities of the Company, do not exceed USD 97,000.00 which is the amount of
the Company's tax liability of USD 67,000.00 and the amount of the contingent
liability of collection suit in the amount of USD 30,000.00. Seller hereby
agrees to indemnify and hold harmless Buyer from any and all other
liabilities, including product liabilities, exceeding USD 97,000 for a period
of ten years, and shall immediately and without delay pay to Buyer the amount
of any such liabilities above said USD 97,000.00.
2.11. Affiliate Contracts. "Affiliate", for the purposes of this
Agreement, shall mean any corporation or organization of which a Seller is a
partner or of which a Seller is directly or indirectly the beneficial owner of
five percent (5%) or more of any class of equity securities, a trust or other
estate in which Seller serves as grantor, trustee or in a similar fiduciary
capacity.
2. 12. Management Emplovment. Seller agrees that for a period of
three years from Closing Date, Seller, its subsidiaries or affiliates, will
not employ ▇▇. ▇▇▇▇▇ ▇▇▇▇ in any manner whatsoever.
2.13. No misrepresentation or Omission. No representation or warranty
by Seller in this Section 2 or in any other Section of this Agreement, or in
any certificate or other document furnished or to be furnished by Seller
pursuant hereto, contains or will contain any untrue statement of a material
fact or intentionally omits or will omit to state a material fact necessary to
make the statements contained herein or therein not misleading or will
intentionally omit to state a material fact necessary in order to provide
Buyer with accurate information as to the Company.
2.14. Survival of Representations and Warranties. All representations
and warranties by Seller in this Section 2 or in any other Section of this
Agreement, or in any certificate or other document furnished or to be
furnished by Sellers pursuant hereto, shall survive delivery by Buyer of the
consideration to be given by it hereunder and delivery by Seller of the
consideration to be given by them hereunder, and shall survive the execution
hereof and the Closing hereunder, provided, however, that no claim based on
any breach of any such warranty or any misrepresentation may be may be made by
Buyer unless written notice with respect thereto is given on or before the
fifth anniversary of the Closing Date.
3. Representations and Warranties of Buyer. Buyer represents and
warrants to Seller as follows:
3.1. Existence. Good Standing . Corporate Authority. Compliance with
Law. Buyer is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware. Buyer is duly licensed or
qualified to do business as a foreign corporation and is in good standing
under the laws of all other jurisdictions in which the character of the
properties owned or leased by it herein or in which the transaction of its
business makes such qualification necessary. Buyer has all requisite corporate
power and authority to own its properties and carry on its business as now
conducted. Buyer is not in default with respect to any order of any court,
governmental authority or arbitration board or tribunal to which Buyer is a
party or is subject, and the Buyer is not in violation of any laws,
ordinances, governmental rules or regulations to which it is subject. Buyer
has obtained all licenses, permits or other authorizations and has taken all
actions required by applicable laws or governmental regulations in connection
with its business as now conducted.
3. 2 Authorization. Validity and Effect of Agreements. The execution
and delivery of this Agreement and all Agreements and documents contemplated
hereby by Buyer, and the consummation by it of the transaction contemplated
hereby, have been duly authorized by all requisite corporate action. This
Agreement constitutes, and all agreements and documents contemplated hereby
when executed and delivered pursuant hereto for value received will
constitute, the valid and legally binding obligations of Buyer enforceable in
accordance with their terms, except that enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent transfer, or other similar laws
relating to the enforcement of creditors rights generally and generally and
general equitable principles. The execution and delivery of this Agreement by
Buyer does not, and the consummation by the Buyer of the transactions
contemplated hereby will not, (i) require the consent, approval or
authorization of , or declaration, filing or registration with, any
governmental or regulatory authority or any third party, (ii) result in the
breach of any term or provision of, or constitute a default under, or result
in the acceleration of or entitle any party to accelerate ( whether after the
giving of notice or the lapse of time or both) any obligation under, or result
in the creation or imposition of any Encumbrance upon any part of the property
of Buyer pursuant to any provision of, any order, judgment, arbitration award,
injunction, decree, indenture, mortgage, lease, license, lien, or other
agreement or instrument to which Buyer is a party or by which it is bound, or
(iii) violate or conflict with any provision of the bylaws or articles of
incorporation of Buyer as amended to the date of this Agreement.
3. 3. Survival of Representations and Warranties. All representations
and warranties by Buyer in this Section 3 or in any other Section of this
Agreement, or in any certificate or other document furnished or to be
furnished by Buyer pursuant hereto, shall survive delivery by Buyer of the
consideration to be given by it hereunder and delivery by Seller of the
consideration to be it hereunder and delivery by Seller of the consideration
to be given by them hereunder, and shall survive the execution hereof and the
Closing hereunder, provided, however, that no claim based on any breach of any
such warranty or any misrepresentation may be made by Seller unless written
notice with respect thereto is given on or before the fifth anniversary of the
Closing Date.
4. Other Covenants and Agreements.
4.1. Indemnification. If the transaction contemplated hereby is
consummated, Seller agrees to indemnify, defend and hold harmless Buyer
against and in respect of any and all claims, demands, losses, consequential
damages, recoveries and deficiencies, including interest, penalties and
reasonable attorneys ' fees ( collectively, "Damages") that Buyer shall incur
or suffer, which arise, result from or relate to, directly, in whole or in
part,
a) any inaccuracy, intentional misrepresentation or breach of any
of the representations, warranties or agreements made herein by Seller or from
any intentional misrepresentation in or omission from any instrument furnished
or to be furnished hereunder to Buyer
b) any and all actions, suits, proceedings, claims demands,
assessments, judgments, attorneys fees, fines, costs and legal and other
expenses, incident to any of the foregoing or the enforcement by any such
means of a valid right of indemnity pursuant hereto.
If any claim for indemnification hereunder involves a third party claim,
then Seller shall have the right, at its sole cost, expense and ultimate
liability regardless of the outcome, and trough council of its choice, to
litigate, defend, settle or otherwise attempt to resolve such claim, except
that the Buyer may elect, at any time and at Buyer's sole cost, expense and
ultimate liability, regardless of the outcome, and through counsel of its
choice, to litigate, defend, settle or otherwise attempt to resolve such
claim. If Buyer so selects (for reasons other than Seller's failure of refusal
to provide a defense to such claim), then Seller shall have no obligation to
indemnify Buyer with respect to such claim, but such disposition will be
without prejudice to any other right Buyer may have to indemnification under
this Section 4, regardless of the outcome of such claim. If Seller fails to
refuse to provide a defense to a claim and Buyer has not elected to litigate,
defend, settle or otherwise attempt to resolve such claim, then Buyer may
defend against, settle or otherwise deal as to such matter in the manner it
deems appropriate and Seller shall be liable for indemnification with respect
to such matter, including without limitations, the cost of such defense, to
the extent provided in this Agreement. In any event, Buyer and Seller shall
fully cooperate with each other and their respective counsel in connection
with any such litigation, defense, settlement or other attempted resolution.
4.2. Remedies Cumulative. The remedies provided in this Section 4
shall be cumulative and shall not preclude the assertion by Buyer or any
person who controls Buyer of any other rights or the seeking of any other
remedies against Seller. Any recovery under this Section 4 shall not be
limited in any way to the amount of the total consideration paid for the
acquired assets of the Company.
4.3. Conduct the Business
(a) Affirmative Covenants. On and after the date of this Agreement and until
the Closing Date or the date, if any, on which this Agreement is earlier
terminated and abandoned pursuant to Section 6 hereof (the "Termination
Date"), Seller shall cause the Company to:
(i) conduct operations according to its ordinary and usual course of
business consistent with past practice, and (ii) use its best efforts to
preserve intact its business organization and goodwill, to keep available the
services of its officers..
(ii) use its best efforts to preserve intact its business
organization and goodwill, to keep available the services of its officers and
directors, and to maintain satisfactory relationships with suppliers,
distributors, licensers, licensees, customers, employees and others having
business relationships with it.
(b) Negative Covenants. Without limiting the generality of the foregoing,
and except for actions to be taken in connection with any of the transactions
contemplated by this Agreement, without the prior written consent of Buyer,
Seller shall cause the Company not to, on or after the date of this Agreement
and until the earlier of the Closing Date or the Termination Date:
(i) merge with, consolidate with, sell its assets to or acquire
substantially all the assets or capital stock of, any other corporation or
person, or enter into any other transaction not in the ordinary and usual
course of its business.
(ii) incur any indebtedness for borrowed money or guarantee any such
indebtedness or issue or sell any debt securities or guarantee any debt
securities of others, if said indebtedness would encumber acquired assets in
any way
(iii) amend its articles of incorporation or bylaws, as amended to
the date of this Agreement, except as may be necessary to carry out this
Agreement or as required by Law.
(iv) enter into any agreement or make any undertaking which could be
violated, or create obligations which could be accelerated, as a result of
changes or developments or the absence of any changes or developments, in the
acquired assets.
(v) make any material changes in its management employment
arrangements.
4.4. Access to Information and Customers. Seller shall cause the
Company to, (i) afford to Buyer and to its officers, employees, accountants,
counsel and other authorized representatives reasonable access, throughout the
period prior to the earlier of the Closing Date, or the Termination Date, to
the Company's properties, books and records. (ii) furnish to Buyer and to its
authorized representatives such additional financial and operating data and
other information as to the Company's respective business and properties as
Buyer or its authorized representatives may from to the time reasonably
request. and (iii) afford Buyer and its representatives reasonable access,
throughout the period prior to the earlier of the Closing Date or the
Termination Date, to the Company's present and potential customers, and Buyer
and its authorized representatives shall have the right to contact such
customers and conduct such due diligence investigation relating to customer
relations as Buyer deems reasonably necessary or appropriate.
4.5. Fees and Expenses. Except as otherwise specifically provided
herein, Buyer and Seller shall each pay their respective fees and expenses
including taxes, applicable, incurred in connection with the consummation of
the transactions contemplated by this Agreement, including but not limited to,
attorneys' and accountants fees incident to the negotiation, preparation and
execution of this Agreement and the consummation of the transaction provided.
4. 6. Brokerage Commission. Seller hereby represents and warrants to
Buyer, that he or it has not incurred any obligation or liability, contingent
or otherwise, to any third party for brokerage or agent's commissions or other
like payment in connection with this Agreement or the transactions
contemplated hereby.
4.7. Notification of Certain Matters. Seller shall give prompt notice
to Buyer, and Buyer shall give prompt notice to Seller of, (i) the occurrence,
or failure to occur, of any event which occurrence or failure would be likely
to cause any representation or warranty of such party contained in this
Agreement to be untrue or inaccurate in any material respect at any time from
the date of this Agreement to the Closing Date and (ii) any material failure
of Seller or of Buyer, as the case may be, or of any officer, director,
employee or agent thereof, to comply with or satisfy any covenant, condition
or agreement to be complied with or satisfied by it under this Agreement.
4.8. Best Efforts. Seller agrees to use its best efforts to take, or
cause to be taken, all action, and to do, or cause to be done, all things
reasonably necessary, proper or advisable to consummate and make effective the
transactions contemplated by this Agreement. Additionally Seller agrees to
assist for period of one year from the Closing Date, without compensation, to
resolve any claims or any issues conceived prior Closing Date.
4.9. Execution of Additional Documents. Each party hereto will at any
time, and from time to after the Closing Date, upon request of the other party
hereto, execute, acknowledge and deliver all such further documents and
instruments, and take all such further action, as may be required to carry out
the intent of this Agreement, and to transfer and vest
title to the acquired assets of the Company being transferred hereunder, and
to protect the right, title and interest in and enjoyment of all of the
acquired assets of the Company sold and conveyed pursuant to this Agreement,
provided, however, that this Agreement shall be effective regardless of
whether any such additional documents are executed.
4.10. Outstanding Company's Payables
(a) In the event that Company shall be liable to pay and will make a
payment in whole or in part of the outstanding payables of USD 88.711,66
resulting from the former business relations between Company and Motokov a.s.,
▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ("Motokov") as a part of
experimental business relations with the state enterprise Zetor, the Seller
hereby agrees to indemnify and hold harmless Buyer from any and all
liabilities resulting from such obligation and shall immediately and without
delay pay to Buyer the amounts paid by the Company to Motokov.
(b) In the event that the Company shall be liable to pay and will
make a payment in whole or in part of the outstanding payables of USD
95.439,69 according invoices No. 79-05499/04, issued under order 3250/80, and
No. 79-00433/04, issued under order 3253/81, resulting from the former
business relations between Company and Motokov, the Seller hereby agrees to
indemnify and hold harmless Buyer from any and all liabilities resulting from
such obligation and shall immediately and without delay pay to Buyer the
amount paid by the Company to Motokov
5. Conditions of Closing.
5. 1. Buyer's Conditions of Closing. The obligation of Buyer to
purchase and pay for the acquired shares of the Company shall be subject to
and conditioned upon the satisfaction at the Closing of each of the following
conditions:
(a) All representations and warranties of Seller contained in this
Agreement shall be true and correct at and as of the Closing Date and Seller
shall have performed all agreements and covenants and satisfied all conditions
on its part to be performed or satisfied by the Closing Date pursuant to the
terms of this Agreement.
(b) There shall have been no materials adverse change in the financial
condition, business or affairs of the Company, and the Company shall have
suffered any material loss (whether or not insured) by reason of physical
damage caused by fire, earthquake, accident or other calamity which
substantially affects the value of its assets, properties or business.
(c) Any approvals and consents from third parties and governmental
agencies required to consummate the transactions contemplated hereby shall
have been obtained.
(d) No suit, action, investigation, inquiry or other proceeding by any
governmental body or other person or legal or administrative proceeding shall
have been instituted or threatened which questions the validity or legality of
the transactions contemplated hereby.
(e) As of the Closing, there shall be no effective injunction, writ,
preliminary restraining order or any order of any nature issued by a court
competent jurisdiction directing that the transactions provided for herein or
any ofthem not be consummated as so provided or imposing any conditions on the
consummation of the transactions contemplated hereby, which is unduly
burdensome on Buyer.
5. 2. Seller s Conditions of Closing . The obligation of Seller to
sell the shares of the Company shall be subject to and conditioned upon the
satisfaction at the Closing of each of the following conditions:
(a) All representations and warranties of Buyer contained in this
Agreement shall be true and correct at and as of the Closing Date and Buyer
shall have performed all agreements and covenants and satisfied all conditions
on its part to be per formed or satisfied by the Closing Date pursuant to the
terms of this Agreement.
(b) Buyer shall have effected payment of the Purchase Price in the manner
set forth in Section 1.2 hereof
(c) No suit, action, investigation, inquiry or other proceeding by any
governmental body or other person or legal or administrative proceeding shall
have been instituted or threatened which questions the validity or legality of
the transactions contemplated hereby.
(d) As of the Closing, there shall be no effective injunction, writ,
preliminary restraining order or any order of any nature issued by a court of
competent jurisdiction directing that the transactions provided for herein or
any of them not be consummated as so provided or imposing any conditions on
the consummation of the transactions contemplated hereby, which is unduly
burdensome on Seller.
6. Termination and Abandonment.
6. 1. Reasons for Termination. Anything herein or elsewhere to the
contrary not with standing, this Agreement may be terminated and abandoned at
any time after the date of this Agreement but not later than the Closing:
(a) by the mutual consent of Seller and Buyer, or
(b) by Buyer on the Closing Date if, by that date, the conditions set
forth in Section 5.1 of this Agreement shall not have been fulfilled or
waived, or
(c) by Seller on the Closing Date if, by that date, the conditions set
forth in Section 5.2 of this Agreement shall not have been fulfilled or
waived, or
(d) by Buyer at any time if there has been a material adverse change in
the business, financial condition, or results of operations of the Product
Trading Division of the Company, or
(e) by Buyer or by Seller at any time if there has been a material
breach of any representation or warranty made by the other party herein or in
any certificate or other document delivered pursuant hereto or if there has
been any failure by the other party to perform in all material respects all
obligations or to comply with all covenants on its part to be performed
hereunder.
6.2. Procedure Upon and Effect of Termination. In the event of any
termination and abandonment pursuant to Section 6.1 of this Agreement, written
notice thereof shall forthwith be given to the other party and the transaction
s contemplated by this Agreement shall thereupon be terminated and abandoned,
without further action by Buyer or Seller (except for the provisions of
Section 4.8 ), and there shall be no liability on the part of any of Seller or
Buyer or their respective officers, directors or shareholders, except for the
provisions of Section 4. 8 hereof or except for the material breach of any
representation, warranty or covenant contained herein that is within the
control of the party in breach.
7. Miscellaneous.
7. 1. Notice. Any notice, consent, approval, request, demand or other
communication required or permitted hereunder must be in writing to be
effective and shall be deemed delivered and received (i) if personally
delivered or delivered by telex or telecopy with electronic confirmation, when
actually received by the party to whom sent, or (ii) if delivered by mail
(whether actually received or not), at the close of business on the third
business day next following the day when placed in the federal mail, postage
prepaid, certified or registered mail, return receipt requested, addressed as
follows:
If to Buyer: SDC International, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to Seller: Motokov International, a. s.
▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(or to such other address as either party shall specify by written notice so
given).
7. 2. Binding Effect. Benefits. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
heirs, successors, personal representatives and permitted assigns. Not with
standing anything contained in this Agreement to the contrary, nothing in this
Agreement, expressed or implied, is intended to confer on any person other
than the parties hereto or their respective heirs, successors, personal
representatives and permitted assign any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
7. 3. Entire Agreement . Modification. This Agreement, together with
the Exhibits and other documents contemplated hereby, constitutes the final
written expression of all of the agreements between the parties, and is a
complete and exclusive statement of those terms. Except as specifically
included or referred to herein, this Agreement and the Exhibits and other
documents contemplated hereby supersede all understandings and negotiations
concerning the matters specified herein. No addition to or modification of any
provision of this Agreements shall be binding upon either party unless made in
writing and signed by both parties.
7.4. Governing Law. This Agreement, and all questions relating to its
validity, interpretation, performance and enforcement shall be governed by and
construed in accordance with the laws of the Czech Republic ( exclusive of the
conflict of law provisions thereof).
7.5. Arbitration. Any dispute in connection with this Agreement
including disputes regarding breach of covenants, termination or invalidity
shall be settled amicably and in friendly way by mutual negotiations. If it
fails, the disputes shall be finally settled by the International Arbitral
Centre of the Austrian Federal Economic Chamber in Viena (Internationales
Schiedsgerich' der ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ Mien,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, PF 190) in accordance with its Rules of Arbitration.
The arbitral tribunal shall be composed of three members. The arbitration
proceedings shall be conducted in English language. All fee and cost relating
to the Arbitration and its enforcement shall be borne by the loosing party.
The parties to the Agreement are obliged to acknowledge and execute the
judgment promptly.
7. 6. Survival. All of the terms, conditions, warranties and
representations contained in this Agreement shall survive, in accordance with
their terms, delivery by Buyer of the consideration to be given by it
hereunder and delivery by Seller of the consideration to be given by it
hereunder, and shall survive the execution hereof and the Closing hereunder.
7. 7. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the some instrument.
7. 8. Headings. Headings of the Section of this Agreement are for the
convenience of the party only, and shall be given no substantive or
interpretive effect what so ever.
7. 9. Waivers. Any party hereto may, by written notice to the other
parties hereto, (i) extend the time for the performance of any of the
obligations or other actions of the other parties under this Agreement. (ii)
waive any inaccuracies in the representations or warranties of the other
parties contained in this Agreement or in any document delivered pursuant to
this Agreement. (iii) waive compliance with any of the conditions or covenants
of the other parties contained in this Agreement, or (iv) waive performance of
any of the obligations of the other party under this Agreement. Except as
provided in the preceding sentence, no action taken pursuant to this
Agreement, including without limitation any investigation by or on behalf of
any party, shall be deemed to constitute a waiver by the party taking such
action of compliance with any representation, warranties, covenants or
agreements contained in this Agreement. The waiver by any party hereto of a
breach of any provision hereunder shall not operate or be construed as a
waiver of any prior or subsequent breach of the some or any other provision
hereunder.
7. 10. Merge of Documents. This Agreement and all agreements and
documents contemplated hereby constitute one agreement and are interdependent
upon each other in all respects.
7.11. Incorporation of Exhibits. All Exhibits attached hereto are by
this reference incorporated herein and made a part hereof for all purposes as
if fully set forth.
7.12 Severability. If for any reason what so ever, any one or more
of the provision of this Agreement shall be held or deemed to be illegal,
inoperative, unenforceable or invalid as applied to any particular case or in
all cases, such circumstances shall not have the effect of rendering such
provision illegal, inoperative, unenforceable or invalid in any other case or
of rendering any of the other provisions of this Agreement inoperative,
unenforceable or invalid.
7.13. Assignability. Purchaser shall have the right to assign its
rights and delegate its obligations as Buyer under this Agreement, but upon
such assignment or delegation, Purchaser shall remain fully and completely
responsible for its obligations and duties under this Agreement.
7. 14. Drafting. The parties hereto stipulate and agree that the rule
of construction to the effect that any ambiguities are to be or may be
resolved against the drafting party shall not be employed in the
interpretation of this Agreement to favor either party against the other.
7. 15. References. The use of the words "hereof" "herein",
"hereunder", and words of similar import shall refer to this entire Agreement,
and not to any particular section, subsection, clause, or paragraph of this
Agreement, unless the contact clearly indicates otherwise.
Agreed to upon the first date written above:
SELLER: Motokov International, a. s.
By: /s/▇▇▇▇ KrausBY:/s/Ing ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇. ▇▇▇▇ ▇▇▇▇▇, its General ManagerIng ▇▇▇▇ ▇▇▇▇▇▇▇
BUYER: SDC International, Inc.
/s/▇▇▇▇▇▇ K. Srkal
▇▇▇▇▇▇ K. Srkal, its Executive Vice President
