Exhibit 10.3
ACQISITION AGREEMENT
between
Promotora Xxxxx Hermosa Inc., a Nolorado Corporation ("PVHI")
and
Stockholders of OJSC "494 UNR" (IAI [[494 OI-D]]), of a Russian Federation
Corporation, with combined holdings of 66.83% of the total and outstanding
shares of OJSC "494 UNR"
Dated: March 24, 2008
ACQUISITION AGREEMENT
ACQUISITION AGREEMENT
(hereinafter referred to as this "Agreement")
is entered into as of this 24th day of Xxxxx 2008, by and between Promotora
Xxxxx Hermoso Inc., a Colorado corporation (hereinafter referred to as "PVHI")
and Stockholders of OJSC "494 UNR" (hereinafter referred to as "UNR"), a Russian
Federation Corporation, , with combined holdings of 66.83% of the total and
outstanding shares of OJSC "494 UNR" , (collectively hereinafter referred to as
the "Parties") upon the following premises:
Premises
WHEREAS,
PVHI, is a publicly held corporation organized under the laws of the State of
Colorado;
WHEREAS,
OJSC "494 UNR" is an open joint stock company organized under the laws of
Russian Federation (hereinafter referred as "OJSC");
WHEREAS, according to the list of shareholders from the February, 20th, 2008,
given by PVHI, the quantity of shares of PVHI makes 3,964,799 shares, from them
3,545,899 are restricted, shares of PVHI are owned by 115 shareholders, active
certificates of PVHI are 141 pieces.
WHEREAS, Management of Promotora Xxxxx Hermoso Inc and the Authorized person of
UNR, acting on behalf of Powers of Attorney, of stockholders representing 66.83%
of the total and outstanding shares of OJSC, signing the present agreement, have
determined that it is in the best interest of the parties that PVHI acquire
66.83% of the issued and outstanding securities of OJSC in exchange for 20 500
000 ( twenty million five hundred thousand pieces) of PVHI (hereinafter referred
to as the "Exchange") and UNR agreed to use its best efforts to cause
shareholders of 66.83% of OJSC stock, to exchange their securities of OJSC on
the terms described herein; the price of the transaction on an exchange of
shares is certain at the price of par value of shares of "OJSC" and makes 3 069
923 rubles (128,988.36 US dollars at the rate of the Central Bank of the Russian
Federation for March, 24th, 2008); and
NOW THEREFORE, on the stated premises and for and in consideration of the mutual
covenants and agreements hereinafter set forth and the mutual benefits to the
Parties to be derived here from, it is hereby agreed as follows:
Agreement
ARTICLE I
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF UNR
As an inducement to, and to obtain the reliance of PVHI except as set forth on
the UNR Schedules (as hereinafter defined), UNR represents and warrants as
follows:
Section 1.01
Organization. UNR is a corporation duly organized, validly existing, and in good
standing under the laws of Russian Federation and has the corporate power and is
duly authorized, qualified, franchised, and licensed under all applicable laws,
regulations, ordinances, and orders of public authorities to own all of its
properties and assets and to carry on its business in all material respects as
it is now being conducted, including qualification to do business as a foreign
corporation in the states or countries in which the character and location of
the assets owned by it or the nature of the business transacted by it requires
qualification, except where failure to be so qualified would not have a material
adverse effect on its business. Included in the UNR Schedules are complete and
correct copies of the articles of incorporation, and the bylaws of OJSC as in
effect on the date hereof. The execution and delivery of this Agreement does
not, and the consummation of the transactions contemplated hereby will not,
violate any provision of OJSC's articles of incorporation or bylaws. UNR has
taken all actions required by law, its articles of incorporation, or otherwise
to authorize the execution and delivery of this Agreement. UNR has full power,
authority, and legal right and has taken all action required by law, its
articles of incorporation, and otherwise to consummate the transactions herein
contemplated.
Section 1.02
Capitalization. The authorized capitalization of OJSC consists of 4 593 680
shares of which 3 445 260 are common stock and 1 148 420 preferred stock that
are currently issued and outstanding. All issued and outstanding shares are
legally issued, fully paid, and non-assessable and not issued in violation of
the preemptive or other rights of any person.
Section 1.03
Absence of Certain Changes or Events. Except as set forth in this Agreement or
the UNR Schedules, since December 31, 2007 there has been no material change in
the business and assets of OJSC and to the best knowledge of UNR, OJSC has not
become subject to any law or regulation which materially and adversely affects,
or in the future may adversely affect the business, operations, properties,
assets, or condition of OJSC. Changes of material character after signing the
present agreement can be made only by way of industrial activity of OJSC.
Section 1.04
Litigation and Proceedings. There are no actions, suits, proceedings, or
investigations pending or, to the knowledge of UNR after reasonable
investigation, threatened by or against OJSC or affecting OJSC or its
properties, at law or in equity, before any court or other governmental agency
or instrumentality, domestic or foreign, or before any arbitrator of any kind.
UNR does not have any knowledge of any material default on its part with respect
to any judgment, order, injunction, decree, award, rule, or regulation of any
court, arbitrator, or governmental agency or instrumentality or of any
circumstances that, after reasonable investigation, would result in the
discovery of such a default.
Section 1.05
Contracts.
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(a) Except as included or described in the UNR Schedules, there are no
"material" contracts, agreements, franchises, license agreements, debt
instruments or other commitments to which OAO is a party or by which it or any
of its assets, products, technology, or properties are bound other than those
incurred in the ordinary course of business (as used in this Agreement, a
"material" contract, agreement, franchise, license agreement, debt instrument or
commitment is one which (i) will remain in effect for more than six (6) months
after the date of this Agreement or (ii) involves aggregate obligations of at
least twenty-five thousand dollars ($25,000));
(b) All contracts, agreements, franchises, license agreements, and other
commitments to which OJSC is a party or by which its properties are bound and
which are material to the operations of OJSC taken as a whole are valid and
enforceable by OJSC in all respects, except as limited by bankruptcy and
insolvency laws and by other laws affecting the rights of creditors generally;
(c) Except as set forth in the UNR Schedules, OJSC is not a party to or bound
by, and the properties of OJSC are not subject to any contract, agreement, other
commitment or instrument; except loans due to production activity of OJSC any
charter or other corporate restriction; or any judgment, order, writ,
injunction, decree, or award which materially and adversely affects, the
business operations, properties, assets, or condition of OJSC;
Section 1.06
No Conflict With Other Instruments. The execution of this Agreement and the
consummation of the transactions contemplated by this Agreement will not result
in the breach of any term or provision of, constitute an event of default under,
or terminate, accelerate or modify the terms of any material indenture,
mortgage, deed of trust, or other material contract, agreement, or instrument to
which OJSC is a party or to which any of its properties or operations are
subject.
Section 1.07
Governmental Authorizations. Except as set forth in the UNR Schedules, OJSC has
all licenses, franchises, permits, and other governmental authorizations that
are legally required to enable it to conduct its business in all material
respects as conducted on the date hereof. Except for compliance with federal and
state securities and corporation laws, as hereinafter provided, no
authorization, approval, consent, or order of, or registration, declaration, or
filing with, any court or other governmental body is required in connection with
the execution and delivery by UNR of this Agreement and the consummation by UNR
of the transactions contemplated hereby.
Section 1.08
Approval of Agreement. According to the laws of Russian Federation, UNR has
authorized the execution and delivery of this Agreement.
Section 1.09
OJSC Schedules. UNR has delivered to PVHI the following schedules, which are
collectively referred to as the "UNR Schedules" and which consist of separate
schedules, all certified by the chief executive officer of OJSC as complete,
true, and correct as of the date of this Agreement in all material respects:
(a) Shareholder List (Schedule (1)1)
(b) List of OJSC Shareholders Exchanging
Shares (Schedule (1)2)
(c) a schedule containing complete and correct copies of the articles of
incorporation, and bylaws of OJSC in effect as of the date of this Agreement
(Schedule (1)3);
(d) Schedule containing unaudited financial statements for the last two years,
and a written assurance of presenting the GAAP standard audit within seventy
five days after the closing of the present transaction (Schedule (1)4). UNR
shall cause the UNR Schedules and the instruments and data delivered to PVHI,
hereunder to be promptly updated after the date hereof up to and including the
Closing .
Section 1.10
Payroll Taxes and Corporate Taxes. All of the payroll taxes and corporate taxes
owed by UNR and up to the date of Closing shall remain the responsibility of
UNR.
Section 1.11
Valid Obligation. This Agreement and all agreements and other documents executed
by UNR and PVHI in connection herewith constitute the valid obligation of UNR
and PVHI, enforceable in accordance with its or their terms agreed by the
parties, except as may be limited by bankruptcy, insolvency, moratorium or other
similar laws affecting the enforcement of creditors' rights generally and
subject to the qualification that the availability of equitable remedies is
subject to the discretion of the court before which any proceeding therefore may
be brought.
ARTICLE II
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF PVHI
As an inducement to, and to obtain the reliance of UNR and the UNR Shareholders
Exchanging Shares, except as set forth in the PVHI Schedules (as hereinafter
defined), PVHI represents and warrants as follows:
Section 2.01
Organization. PVHI is a corporation duly organized, validly existing, and in
good standing under the laws of Colorado and has the corporate power and is duly
authorized, qualified, franchised, and licensed under all applicable laws,
regulations, ordinances, and orders of public authorities to own all of its
properties and assets, to carry on its business in all material respects as it
is now being conducted, and except where failure to be so qualified would not
have a material adverse effect on its business, there is no jurisdiction in
which it is not qualified in which the character and location of the assets
owned by it or the nature of the business transacted by it requires
qualification. Included in the PVHI Schedules are complete and correct copies of
the Memorandum and Articles of Association of Holdings as in effect on the date
hereof. The execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated hereby will not, violate any
provision of UNR Memorandum and Articles of Association. PVHI has taken all
action required by law, its Articles of Incorporation, or otherwise to authorize
the execution and delivery of this Agreement, and PVHI has full power,
authority, and legal right and has taken all action required by law, its
Articles of Incorporation, or otherwise to consummate the transactions herein
contemplated.
Section 2.02
Capitalization. PVHI's authorized capitalization consists of 100,000,000 shares
of common stock, $.001 par value of which 3,964,799 is currently outstanding.
All issued and outstanding shares are legally issued, fully paid, and
non-assessable and not issued in violation of the preemptive or other rights of
any person.
Section 2.03
Subsidiaries and Predecessor Corporations. PVHI does not have any predecessor
corporation(s) or subsidiaries, and does not own, beneficially or of record, any
shares of any other corporation, except as disclosed in the official PVHI
filings and in the present agreement.
Section 2.04
Securities Filings; Financial Statements.
(a) Included in the PVHI Schedules is (i) an audited balance sheet of PVHI as of
December 31, 2007.
(b) PVHI has no liabilities with respect to the payment of any federal, state,
county, local or other taxes (including any deficiencies, interest or
penalties), except for taxes accrued but not yet due and payable.
(c) PVHI has timely filed all state, federal or local income and/or franchise
tax returns required to be filed by it from inception to the date hereof. Each
of such income tax returns reflects the taxes due for the period covered
thereby, except for amounts that, in the aggregate, are immaterial.
(d) The books and records, financial and otherwise, of PVHI are in all material
aspects complete and correct and have been maintained in accordance with good
business and accounting practices.
(e) All of PVHI assets are reflected on its financial statements, and, except as
set forth in the PVHI Schedules or the financial statements of PVHI or the notes
thereto, PVHI has no material liabilities, direct or indirect, matured or
unmatured, contingent or otherwise.
Section 2.05
Filings: Books and Records. The books and records, financial and otherwise, of
PVHI are in all material aspects complete and correct and have been maintained
in accordance with good business and accounting practices.
Section 2.06
Options or Warrants. There are no existing options, warrants, calls, or
commitments of any character relating to the authorized and unissued stock of
PVHI, except as described in the present agreement (hereinafter referred to
"Existing Rights").
Section 2.07
Absence of Certain Changes or Events. Except as disclosed in the PVHI Schedules,
or otherwise disclosed in writing to UNR, since the date of the most recent PVHI
balance sheet:
(a) there has not been (i) any material adverse change in the business,
operations, properties, assets or condition of PVHI or (ii) any damage,
destruction or loss to PVHI(whether or not covered by insurance) materially and
adversely affecting the business, operations, properties, assets or condition of
PVHI;
(b) PVHI has not (i) amended its certificate of incorporation or bylaws; (ii)
declared or made, or agreed to declare or make any payment of dividends or
distributions of any assets of any kind whatsoever to stockholders or purchased
or redeemed, or agreed to purchase or redeem, any of its capital stock; (iii)
waived any rights of value which in the aggregate are outside of the ordinary
course of business or material considering the business of PVHI; (iv) made any
material change in its method of management, operation, or accounting; (v)
entered into any transactions or agreements other than in the ordinary course of
business; (vi) made any accrual or arrangement for or payment of bonuses or
special compensation of any kind or any severance or termination pay to any
present or former officer or employee; (vii) increased the rate of compensation
payable or to become payable by it to any of its officers or directors or any of
its salaried employees whose monthly compensation exceed $1,000; or (viii) made
any increase in any profit sharing, bonus, deferred compensation, insurance,
pension, retirement, or other employee benefit plan, payment, or arrangement,
made to, for or with its officers, directors, or employees;
(c) PVHI has not (i) granted or agreed to grant any options, warrants, or other
rights for its stock, bonds, or other corporate securities calling for the
issuance thereof; (ii) borrowed or agreed to borrow any funds or incurred, or
become subject to, any material obligation or liability (absolute or contingent)
except liabilities incurred in the ordinary course of business; (iii) paid or
agreed to pay any material obligations or liabilities (absolute or contingent)
other than current liabilities reflected in or shown on the most recent PVHI
balance sheet and current liabilities incurred since that date in the ordinary
course of business and professional and other fees and expenses in connection
with the preparation of this Agreement and the consummation of the transaction
contemplated hereby; (iv) sold or transferred, or agreed to sell or transfer,
any of its assets, properties, or rights (except assets, properties, or rights
not used or useful in its business which, in the aggregate have a value of less
than $1000), or canceled, or agreed to cancel, any debts or claims (except debts
or claims which in the aggregate are of a value less than $1000); (v) made or
permitted any amendment or termination of any contract, agreement, or license to
which it is a party if such amendment or termination is material, considering
the business of PVHI; or (vi) issued, delivered or agreed to issue or deliver,
any stock, bonds, or other corporate securities including debentures (whether
authorized and unissued or held as treasury stock), except in connection with
this Agreement; and
(d) To the best knowledge of PVHI, it has not become subject to any law or
regulation which materially and adversely affects, or in the future, may
adversely affect, the business, operations, properties, assets or condition of
PVHI.
Section 2.08
Litigation and Proceedings. There are no actions, suits, proceedings or
investigations pending or, to the knowledge PVHI after reasonable investigation,
threatened by or against PVHI or affecting PVHI or its properties, at law or in
equity, before any court or other governmental agency or instrumentality,
domestic or foreign, or before any arbitrator of any kind except as disclosed in
PVHI Schedules. PVHI Limited has no knowledge of any default on its part with
respect to any judgment, order, writ, injunction, decree, award, rule or
regulation of any court, arbitrator, or governmental agency or instrumentality
or any circumstance that after reasonable investigation would result in the
discovery of such default.
Section 2.09
Contracts.
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(a) PVHI is not a party to, and its assets, are not bound by, any material
contract, franchise, license agreement, agreement, debt instrument or other
commitments whether such agreement is in writing or oral, except as disclosed in
PVHI Schedules .
(b) PVHI is not a party to or bound by, and the properties of PVHI are not
subject to any contract, agreement, other commitment or instrument; any charter
or other corporate restriction; or any judgment, order, writ, injunction,
decree, or award which materially and adversely affects, the business
operations, properties, assets, or condition of UNR.
(c) All contracts, agreements, franchises, license agreements, and other
commitments to which PVHI is a party or by which its properties are bound and
which are material to the operations of PVHI taken as a whole are valid and
enforceable by PVHI in all respects, except as limited by bankruptcy and
insolvency laws and by other laws affecting the rights of creditors generally;
(d) Except as included or described in the PVHI Schedules or reflected in the
most recent PVHI balance sheet, PVHI is not a party to any oral or written (i)
contract for the employment of any officer or employee which is not terminable
on 30 days, or less notice; (ii) profit sharing, bonus, deferred compensation,
stock option, severance pay, pension benefit or retirement plan, (iii)
agreement, contract, or indenture relating to the borrowing of money, (iv)
guaranty of any obligation, other than one on which PVHI is a primary obligor,
for the borrowing of money or otherwise, excluding endorsements made for
collection and other guaranties of obligations which, in the aggregate do not
exceed more than one year or providing for payments in excess of $1,000 in the
aggregate; (vi) collective bargaining agreement; or (vii) agreement with any
present or former officer or director of PVHI.
Section 2.10
Material Contract Defaults. PVHI is not in default in any material respect under
the terms of any outstanding contract, agreement, lease, or other commitment
which is material to the business, operations, properties, assets or condition
of PVHI and there is no event of default in any material respect under any such
contract, agreement, lease, or other commitment in respect of which PVHI has not
taken adequate steps to prevent such a default from occurring.
Section 2.11
No Conflict With Other Instruments. The execution of this Agreement and the
consummation of the transactions contemplated by this Agreement will not result
in the breach of any term or provision of, constitute a default under, or
terminate, accelerate or modify the terms of, any indenture, mortgage, deed of
trust, or other material agreement or instrument to which OAO is a party or to
which any of its assets or operations are subject.
Section 2.12
Governmental Authorizations. PVHI has all licenses, franchises, permits, and
other governmental authorizations, that are legally required to enable it to
conduct its business operations in all material respects as conducted on the
date hereof. Except for compliance with federal and state securities or
corporation laws, as hereinafter provided, no authorization, approval, consent
or order of, of registration, declaration or filing with, any court or other
governmental body is required in connection with the execution and delivery by
PVHI of this Agreement and the consummation by UNR of the transactions
contemplated hereby.
Section 2.13
Compliance With Laws and Regulations. To the best of its knowledge, PVHI has
complied with all applicable statutes and regulations of any federal, state, or
other applicable governmental entity or agency thereof, except to the extent
that noncompliance would not materially and adversely affect the business,
operations, properties, assets or condition of UNR or except to the extent that
noncompliance would not result in the occurrence of any material liability. This
compliance includes, but is not limited to, the filing of all reports to date
with federal and state securities authorities.
Section 2.14
Material Transactions or Affiliations. Except as disclosed herein and in the
PVHI Schedules, there exists no contract, agreement or arrangement between PVHI
and any predecessor and any person who was at the time of such contract,
agreement or arrangement an officer, director, or person owning of record or
known by PVHI to own beneficially, 5% or more of the issued and outstanding
common stock of PVHI and which is to be performed in whole or in part after the
date hereof or was entered into not more than three years prior to the date
hereof. Neither any officer, director, nor 5% shareholder of PVHI has, or has
had since inception of PVHI, any known interest, direct or indirect, in any such
transaction with PVHI which was material to the business of PVHI. PVHI has no
commitment, whether written or oral, to lend any funds to, borrow any money
from, or enter into any other transaction with, any such affiliated person.
Section 2.15
Approval of Agreement. The board of directors and the shareholders of PVHI have
authorized the execution and delivery of this Agreement and has approved this
Agreement and the transactions contemplated hereby.
Section 2.16
PVHI Schedules. PVHI has delivered to UNR the following schedules, which are
collectively referred to as the "PVHI Schedules" and which consist of separate
schedules, which are dated the date of this Agreement, all certified by the
chief executive officer of PVHI to be complete, true, and accurate in all
material respects as of the date of this Agreement:
(a) a schedule containing complete and accurate copies of the certificate of
incorporation and bylaws of PVHI as in effect as of the date of this Agreement
(Schedule a);
(b) a schedule containing the financial statements of PVHI identified in
paragraph 2.04(a) (Schedule b); (c) a certified shareholder list at the moment
of the transaction (Schedule c). (d) resolution of the Board of Directors by
which all directors of PVHI resign, and all the members of the Board of
Directors of OAO are appointed to the board of PVHI (Schedule d).
(e) a schedule setting forth any other information, together with any required
copies of documents, required to be disclosed in the PVHI Schedules by Sections
2.01 through 2.19 (Schedule e). PVHI shall cause the PVHI Schedules and the
instruments and data delivered to UNR hereunder to be promptly updated after the
date hereof up to and including the Closing Date.
Section 2.17
Valid Obligation. This Agreement and all agreements and other documents executed
by PVHI in connection herewith constitute the valid and binding obligation of
PVHI, enforceable in accordance with its or their terms, except as may be
limited by bankruptcy, insolvency, moratorium or other similar laws affecting
the enforcement of creditors' rights generally and subject to the qualification
that the availability of equitable remedies is subject to the discretion of the
court before which any proceeding therefore may be brought.
ARTICLE III
PLAN OF EXCHANGE
Section 3.01
The Exchange. On the terms and subject to the conditions set forth in this
Agreement, on the Closing Date (as defined in Section 3.04), UNR shall assign,
transfer and deliver, free and clear of all liens, pledges, encumbrances,
charges, restrictions or known claims of any kind, nature, or description, the
number of shares of common stock of OJSC set forth on Schedule (1)2 attached
hereto, in the aggregate constituting 66.83% (1990607 common shares and 1079316
preferred shares) of the issued and outstanding shares of OJSC; the objective of
such Exchange being the acquisition by PVHI of 66.83% of the issued and
outstanding common stock of OJSC.
Appointed shareholders of PVHI cause the delivery to the Escrow Account held by
the Wolf Blitz Inc of 1,250,000 shares (to be paid to the consultants of UNR on
the deal at the closing of the transaction according to the escrow account
instructions).
In three (3) days from the moment of the signing of this agreement UNR (Schedule
#2) will be issued 20,500,000 shares of PVHI and given their certificates thus
bringing the share ownership in PVHI to ~ 83.7%.
Upon consummation of the transaction contemplated herein of 66.83% of the shares
of capital stock of UNR shall be held by PVHI.
Section 3.02
Upon execution of this agreement and for consideration thereof, UNR agrees to
pay any amounts due for audit as previously disclosed.
Section 3.03
Subsequent to Closing of the Deal, PVHI and UNR have agreed to liquidate
Promotora Xxxxx Hermosa Inc. Ecuadorian subsidiaries and sell a material portion
of Promotora Xxxxx Hermoso Inc business and/or assets to Promotora Xxxxx Hermoso
Inc. present management or entity so designated, subject to all liabilities of
PVHI other than those PVHI has expressly agreed to assume herein.
Section 3.04
Reverse Stock Split. The new PVHI shareholders and management shall agree not to
vote for a reverse split at least for one year from the closing of this
transaction.
Section 3.05
Closing of the Deal. The closing ("Closing") of the transactions contemplated by
this Agreement shall take place when all Sections 3.01; 3.02; 3.07 will be
executed.
Section 3.06
The financial statements of PVHI shall reflect all current and total
liabilities, including all trade payables and all PVHI assets at Closing;
Section 3.07 Upon signing PVHI'S board of directors shall appoint Yushkevich
Xxxxxx Xxxxxxxxx as the Secretary of the Board of Directors; Xxx Xxxxxx
Xxxxxxxxx as the President, Xxx Xxxxxx Alexeyevich as the CEO and Xxxxxxxxxx
Xxxx Vladimirovich as Chief Financial Officer., to fill open board of director
seats of PVHI. PVHI'S officers and directors will effectively resign at the
Closing;
Section 3.08
Closing Events. At the Closing, UNR and PVHI shall execute, acknowledge, and
deliver (or shall ensure to be executed, acknowledged, and delivered) any and
all certificates, opinions, financial statements, schedules, agreements,
resolutions, rulings or other instruments required by this Agreement to be so
delivered at or prior to the Closing, together with such other items as may be
reasonably requested by the parties hereto and their respective legal counsel in
order to effectuate or evidence the transactions contemplated hereby.
Section 3.09
Termination.
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(a) This Agreement may be terminated by the board of directors of either PVHI or
UNR at any time prior to the Closing if:
(i) there shall be any actual or threatened action or proceeding before any
court or any governmental body which shall seek to restrain, prohibit, or
invalidate the transactions contemplated by this Agreement and which, in the
judgment of such board of directors, made in good faith and based upon the
advice of its legal counsel, makes it inadvisable to proceed with the Exchange;
or (ii) any of the transactions contemplated hereby are disapproved by any
regulatory authority whose approval is required to consummate such transactions
(which does not include the Securities and Exchange Commission) or in the
judgment of such board of directors, made in good faith and based on the advice
of counsel, there is substantial likelihood that any such approval will not be
obtained or will be obtained only on a condition or conditions which would be
unduly burdensome, making it inadvisable to proceed with the Exchange.
In the event of termination pursuant to this paragraph (a), no obligation, right
or liability shall arise hereunder, and each party shall bear its own costs and
expenses incurred by it in connection with the negotiation, drafting, and
execution of this Agreement and the transactions herein contemplated.
ARTICLE IV
SPECIAL COVENANTS
Section 4.01
Access to Properties and Records. Each of the Parties will each afford to the
officers and authorized representatives of the other Parties full access to
their properties, books and records, in order that each may have a full
opportunity to make such reasonable investigation as they shall desire to make
of the affairs of the other, and each will furnish the other with such
additional financial and operating data and other information reasonably
requested.
Section 4.02
Delivery of Books and Records. At the Closing, PVHI shall deliver to UNR, the
copies of the corporate minute books, books of account, contracts, records, and
all other books or documents of PVHI now in the possession of PVHI or its
officer and director, Xxxxx Xxxxxxx, and other officers and staff of PVHI
Section 4.03
Third Party Consents and Certificates. All Parties agree to cooperate with each
other in order to obtain any required third party consents to this Agreement and
the transactions herein contemplated.
Section 4.04
Consent of UNR Shareholders Exchanging Shares. UNR has the empowerment to obtain
the consent of Exchange shareholders to participate in the Exchange.
Section 4.05
PVHI Shareholder Meeting. PVHI shall call a special meeting to be held on or
prior to the Closing Date at which meeting the shareholders of PVHI shall be
requested to approve, and PVHI board of directors shall recommend approval of,
the terms of this Agreement, including the name change described in Section 4.05
and such other matters as shall require shareholder approval hereunder
Section 4.08
Post-Exchange Sales Under Rule 144 or 145, If Applicable.
(a) PVHI will use its best efforts to at all times comply with the reporting
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), including timely filing of all periodic reports required under the
provisions of the Exchange Act and the rules and regulations promulgated
thereunder.
(b) Upon being informed in writing by any such person holding restricted stock
of PVHIsubsequent to the Exchange that such person intends to sell any shares
under Rule 144, Rule 145 or Regulation S promulgated under the Securities Act
(including any rule adopted in substitution or replacement thereof), PVHIwill
certify in writing to such person that it has filed all of the reports required
to be filed by it under the Exchange Act to enable such person to sell such
person's restricted stock under Rule 144, 145 or Regulation S, as may be
applicable in the circumstances, or will inform such person in writing that it
has not filed any such report or reports.
(c) If any certificate representing any such restricted stock is presented to
PVHI'S transfer agent for registration of transfer in connection with any sale
theretofore made under Rule 144, 145 or Regulation S, provided such certificate
is duly endorsed for transfer by the appropriate person(s) or accompanied by a
separate stock power duly executed by the appropriate person(s) in each case
with reasonable assurances that such endorsements are genuine and effective, and
is accompanied by an opinion of counsel satisfactory to PVHI and its counsel
that the stock transfer has complied with the requirements of Rule 144, 145 or
Regulation S, as the case may be, PVHIwill promptly instruct its transfer agent
to register transfer such shares and to issue one or more new certificates
representing such shares to the transferee and, if appropriate under the
provisions of Rule 144, 145 or Regulation S, as the case may be, free of any
stop transfer order or restrictive legend. The provisions of this Section 4.08
shall survive the Closing and the consummation of the transactions contemplated
by this Agreement.
Section 4.09
Indemnification.
(a) UNR hereby agrees to indemnify PVHI and each of the officers, agents and
directors of PVHI as of the date of execution of this Agreement against loss,
liability, claim, damage, or expense (including, but not limited to, any and all
expense whatsoever reasonably incurred in investigating, preparing, or defending
against any litigation, commenced or threatened, or any claim whatsoever), to
which it or they may become subject arising out of or based on any inaccuracy
appearing in or misrepresentations made under Article II of this Agreement.
(b)PVHI and its officers and directors hereby agrees to indemnify UNR and each
of the officers, agents, and directors of UNR as of the date of execution of
this Agreement against loss, liability, claim, damage, or expense (including,
but not limited to, any and all expense whatsoever reasonably incurred in
investigating, preparing, or defending against any litigation, commenced or
threatened, or any claim whatsoever), to which it or they may become subject
arising out of or based on any inaccuracy appearing in or misrepresentation made
under Article II of this Agreement.
ARTICLE V
CONDITIONS PRECEDENT TO OBLIGATIONS OF PVHI
The obligations of PVHI under this Agreement are subject to the
satisfaction, at or before the Closing, of the following conditions:
Section 5.01
Accuracy of Representations and Performance of Covenants. The representations
and warranties made by PVHI in this Agreement were true when made and shall be
true at the Closing with the same force and effect as if such representations
and warranties were made at and as of the Closing (except for changes therein
permitted by this Agreement). PVHI shall have performed or complied with all
covenants and conditions required by this Agreement to be performed or complied
with by PVHI prior to or at the Closing.
Section 5.02
Officer's Certificate. OAO has been furnished with a certificate dated the
Closing Date and signed by a duly authorized officer of PVHI to the effect that
no litigation, proceeding, investigation, or inquiry is pending, or to the best
knowledge of PVHI threatened, which might result in an action to enjoin or
prevent the consummation of the transactions contemplated by this Agreement, or,
to the extent not disclosed in the PVHI Schedules, by or against PVHI, which
might result in any material adverse change in any of the assets, properties,
business, or operations of PVHI.
Section 5.03
No Material Adverse Change. Prior to the Closing , there shall not have occurred
any change in the financial condition, business, or operations of PVHI nor shall
any event have occurred which, with the lapse of time or the giving of notice,
is determined to be unacceptable using the criteria set forth in Section 2.07.
Section 5.04
Approval by Shareholders. The Exchange shall have been approved before the day
of the closing, by the holders of not less than 66.83% (sixty eight point eighty
three percent) of the outstanding stock of OJSC. Authorized person of UNR is
issued Powers of Attorney from Shareholders of 66.83% (sixty eight point eighty
three percent) of the outstanding stock of OJSC.
Section 5.05
No Governmental Prohibition. No order, statute, rule, regulation, executive
order, injunction, stay, decree, judgment or restraining order shall have been
enacted, entered, promulgated or enforced by any court or governmental or
regulatory authority or instrumentality which prohibits the consummation of the
transactions contemplated hereby.
Section 5.06
Consents. All consents, approvals, waivers or amendments pursuant to all
contracts, licenses, permits, trademarks and other intangibles in connection
with the transactions contemplated herein, or for the continued operation of
OJSC after the Closing on the basis as presently operated shall have been
obtained.
Section 5.07
Other Items.
(a) PVHI shall have received a list of Shareholders exchanging shares, UNR,
(Schedule #2) containing the name, address, and number of shares held by each
OJSC shareholder as of the date of Closing, certified by an executive officer of
OJSC as being true, complete and accurate; and
(b)UNR shall have received a list of Shareholders of PVHI containing the name,
address, and number of shares held by each PVHI shareholder as of the date of
Closing, certified by an executive officer of OJSC as being true, complete and
accurate; and
(c) PVHI and UNR shall have received such further opinions, documents,
certificates or instruments relating to the transactions contemplated hereby as
Parent may reasonably request.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF UNR
The obligations of UNR under this Agreement are subject to the satisfaction, at
or before the Closing, of the following conditions:
Section 6.01
Accuracy of Representations and Performance of Covenants. The representations
and warranties made by UNR in this Agreement were true when made and shall be
true as of the Closing (except for changes therein permitted by this Agreement)
with the same force and effect as if such representations and warranties were
made at and as of the Closing. Additionally, UNR shall have performed and
complied with all covenants and conditions required by this Agreement to be
performed or complied shall have approved the Exchange and the related
transactions described herein.. PVHI shall have been furnished with
certificates, signed by duly authorized executive officers of OJSC and dated the
Closing , to the foregoing effect.
Section 6.02
Officer's Certificate. PVHI and UNR shall have been furnished with certificates
dated the Closing Date and signed by duly authorized executive officers of OJSC
and PVHI, to the effect that no litigation, proceeding, investigation or inquiry
is pending, or to the best knowledge of UNR and PVHI threatened, which might
result in an action to enjoin or prevent the consummation of the transactions
contemplated by this Agreement or, to the extent not disclosed in the UNR and
PVHI Schedules, by or against OJSC and PVHI, which might result in any material
adverse change in any of the assets, properties or operations of OJSC and PVHI,
except its normal production activity.
Section 6.03
No Governmental Prohibition. No order, statute, rule, regulation, executive
order, injunction, stay, decree, judgment or restraining order shall have been
enacted, entered, promulgated or enforced by any court or governmental or
regulatory authority or instrumentality which prohibits the consummation of the
transactions contemplated hereby.
Section 6.04
Consents. All consents, approvals, waivers or amendments pursuant to all
contracts, licenses, permits, trademarks and other intangibles in connection
with the transactions contemplated herein, or for the continued operation of
each party after the Closing on the basis as presently operated shall have been
obtained.
Section 6.05
Other Items UNR and PVHI shall have delivered further opinions, documents,
certificates, or instruments relating to the transactions contemplated hereby as
PVHI or UNR may reasonably request.
ARTICLE VII
MISCELLANEOUS
Section 7.01
Brokers. The Parties agree that there were no finders or brokers involved in
bringing the parties together or who were instrumental in the negotiation,
except UNR consultants, execution or consummation of this Agreement. The Parties
each agree to indemnify the other against any claim by any third person other
than those described above for any commission, brokerage, or finder's fee
arising from the transactions contemplated hereby based on any alleged agreement
or understanding between the indemnifying party and such third person, whether
express or implied from the actions of the indemnifying party.
Section 7.02
Governing Law. This Agreement shall be governed by, enforced, and construed
under and in accordance with the laws of the United States of America and, with
respect to the matters of state law, with the laws of the State of Russian
Federation without giving effect to principles of conflicts of law thereunder.
Each of the parties (a) irrevocably consents and agrees that any legal or
equitable action or proceedings arising under or in connection with this
Agreement shall be brought exclusively in the federal courts of the United
States and Russian Federation.
Section 7.03
Notices. Any notice or other communications required or permitted hereunder
shall be in writing and shall be sufficiently given if personally delivered to
it or sent by telecopy, overnight courier or registered mail or certified mail,
postage prepaid, addressed as follows:
If to PVHI :
Xxxxx Xxxxxxx
0000 Xxxxxxxx Xx., Xxxxx 000, Xxxxxx Xx 00000
Ph: 0000 000 0000
Fax: 000-000-0000
If to UNR:
Xxxxxx Xxxxxxxxx Xxx
0 Xxxxxxxxxxxx Xx.,
Xxxxxxxx,
Xxxxxx Xxxxxxxx, Xxxxxx 000000.
Tel: 000 000 0000
Fax: 000 000 0000
or such other addresses as shall be furnished in writing by any party
in the manner for giving notices hereunder, and any such notice or communication
shall be deemed to have been given (i) upon receipt, if personally delivered,
(ii) on the day after dispatch, if sent by overnight courier, (iii) upon
dispatch, if transmitted by telecopy and receipt is confirmed by telephone and
(iv) three (3) days after mailing, if sent by registered or certified mail.
Section 7.04
Attorney's Fees. In the event that either party institutes any action or suit to
enforce this Agreement or to secure relief from any default hereunder or breach
hereof, the prevailing party shall be reimbursed by the losing party for all
costs, including reasonable attorney's fees, incurred in connection therewith
and in enforcing or collecting any judgment rendered therein.
Section 7.05
Confidentiality. Each party hereto agrees with the other that, unless and until
the transactions contemplated by this Agreement have been consummated, it and
its representatives will hold in strict confidence all data and information
obtained with respect to another party or any subsidiary thereof from any
representative, officer, director or employee, or from any books or records or
from personal inspection, of such other party, and shall not use such data or
information or disclose the same to others, except (i) to the extent such data
or information is published, is a matter of public knowledge, or is required by
law to be published; or (ii) to the extent that such data or information must be
used or disclosed in order to consummate the transactions contemplated by this
Agreement. In the event of the termination of this Agreement, each party shall
return to the other party all documents and other materials obtained by it or on
its behalf and shall destroy all copies, digests, work papers, abstracts or
other materials relating thereto, and each party will continue to comply with
the confidentiality provisions set forth herein.
Section 7.06
Public Announcements and Filings. Unless required by applicable law or
regulatory authority, none of the parties will issue any report, statement or
press release to the general public, to the trade, to the general trade or trade
press, or to any third party (other than its advisors and representatives in
connection with the transactions contemplated hereby) or file any document,
relating to this Agreement and the transactions contemplated hereby, except as
may be mutually agreed by the parties. Copies of any such filings, public
announcements or disclosures, including any announcements or disclosures
mandated by law or regulatory authorities, shall be delivered to each party at
least one (1) business day prior to the release thereof.
Section 7.07
Schedules; Knowledge. Each party is presumed to have full knowledge of all
information set forth in the other party's schedules delivered pursuant to this
Agreement.
Section 7.08
Third Party Beneficiaries. This contract is strictly between PVHI and UNR, and,
except as specifically provided, no director, officer, stockholder, employee,
agent, independent contractor or any other person or entity shall be deemed to
be a third party beneficiary of this Agreement.
Section 7.09
Expenses. Whether or not the Exchange is consummated, each Party hereto will
bear their own respective expenses, including legal, accounting and professional
fees, incurred in connection with the Exchange or any of the other transactions
contemplated hereby.
Section 7.10
Entire Agreement. This Agreement represents the entire agreement between the
parties relating to the subject matter thereof and supersedes all prior
agreements, understandings and negotiations, written or oral, with respect to
such subject matter.
Section 7.11
Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original and all of which taken together shall be but a
single instrument.
Section 7.12
Amendment or Waiver. At any time prior to the Closing, this Agreement may by
amended by a writing document signed by all parties hereto, with respect to any
of the terms contained herein, and any term or condition of this Agreement may
be waived or the time for performance may be extended by a writing signed by the
party or parties for whose benefit the provision is intended.
Section 7.14
Best Efforts. Subject to the terms and conditions herein provided, each party
shall use its best efforts to perform or fulfill all conditions and obligations
to be performed or fulfilled by it under this Agreement so that the transactions
contemplated hereby shall be consummated as soon as practicable.
IN WITNESS WHEREOF, the corporate parties hereto have caused this Agreement to
be executed by their respective officers, hereunto duly authorized, as of the
date first-above written.
ATTEST:
OJSC 494 UNR
BY: /s/ Xxxxxx Xxxxxxxxx Xxx
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PROMOTORA XXXXX HERMOSO
BY: /s/ Xxxxx X. Xxxxxxx
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