Exhibit 10.9
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement") is entered into effective as
of the 21 day of June, 1995 by and between Rohm Co., Ltd., a corporation
organized under the laws of Japan, having its principal place of business at
▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇, ▇▇▇▇▇, ▇▇▇, ▇▇▇▇▇ ("Rohm"), and Racom
Systems, Inc., a company organized under the laws of the State of Delaware,
U.S.A., having its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Racom").
RECITALS
--------
THIS AGREEMENT sets forth the understandings and agreements pursuant to
which Rohm will acquire from Racom a total of 500,000 shares of Racom common
stock.
NOW, THEREFORE, in consideration of the promises and of the mutual
covenants and agreements contained herein, the parties agree as follows:
ARTICLE ONE
SALE AND PURCHASE
-----------------
1.1 SALE AND PURCHASE OF COMMON STOCK. Subject to the terms and
conditions of this Agreement and in reliance on the representations and
warranties contained herein, Rohm hereby agrees to purchase from Racom and
Racom hereby agrees to sell to Rohm a total of 500,000 shares of Racom common
stock, par value $0.01. On the Closing Date (as hereinafter defined), Rohm
shall purchase from Racom 300,000 shares of Racom common stock, par value
$0.01, for a purchase price of US$900,000 (US$3.00 per share). In addition,
on the Second Closing Date (as hereinafter defined) Rohm shall purchase from
Racom an additional 200,000 shares of Racom common stock, par value $0.01,
for a purchase price of US$600,000 (US$3.00 per share). The terms,
designations, rights, preferences and limitations of the Common Stock are as
set forth in Racom's certificate of incorporation and bylaws. The parties
agree that the Purchase Price shall be paid in the manner specified in
Article 2 below.
ARTICLE TWO
CLOSING AND SECOND CLOSING
--------------------------
2.1 CLOSING AND SECOND CLOSING. For purposes of this Agreement, (i) the
term "Closing" or "Closing Date" shall mean a date not more than ten (10) days
following the execution by the parties of the Cooperative Agreement for Licensed
Manufacturing of Ferroelectric RFID Products, such date to be mutually agreed to
by the parties, and (ii) the term "Second Closing" or "Second Closing Date"
shall mean a date not more than thirty (30) days following the cumulative sale
by Rohm of ten million Custom Ferroelectric RFID Products, such date to be
mutually agreed
by the parties. Subject to the performance, satisfaction or waiver of each
condition precedent set forth in Article 5 hereof, the Closing and Second
Closing of the purchase and sale of the common stock shall take place at a
mutually convenient location as agreed by the parties.
2.2 SUBMISSIONS OF RACOM. On each of the Closing Date and Second
Closing Date, Racom shall deliver to Rohm the following:
(a) A stock certificate(s) duly endorsed or with stock power(s)
duly endorsed in favor of Rohm for the appropriate number of shares
of common stock being purchased on such date;
(b) A copy of the resolutions of Racom's Board of Directors
approving the execution of this Agreement and the consummation of the
transactions contemplated by this Agreement; and
(c) Such other documents or instruments as may be reasonably
requested by Rohm to consummate the transactions contemplated in this
Agreement.
2.3 SUBMISSIONS OF ROHM. On each of the Closing Date and Second Closing
Date, Rohm shall:
(a) Wire transfer to Racom at Racom's direction the applicable
purchase price for the common stock being purchased on such date and submit
such certifications or confirmations, as deemed reasonably necessary by
Racom, verifying the payment of the purchase price; and
(b) Such other documents or instruments as may be reasonably
requested by Racom to consummate the transactions contemplated in
this Agreement.
ARTICLE THREE
REPRESENTATIONS AND WARRANTIES
------------------------------
OF RACOM
--------
Racom hereby represents and warrants to Rohm as follows:
3.1 ORGANIZATION AND GOOD STANDING. Racom is a corporation, duly
organized, validly existing and in good standing under the laws of the State
of Delaware, U.S.A. and has all requisite power and authority to conduct its
business as such business is now conducted.
3.2 CORPORATE POWER. Racom has complete power to execute, deliver and
perform this Agreement and, as of the Closing, has taken all corporate action
required by law, its articles of incorporation, its bylaws or otherwise, to
authorize the execution, delivery and performance of this
2
Agreement, and this Agreement is a valid and binding obligation of Racom,
enforceable in accordance with its terms.
3.3 NO VIOLATION. Neither the execution nor the consummation of this
Agreement will constitute a violation of or default under any term or provision
of Racom's articles of incorporation or bylaws, or any contract, commitment,
indenture or other agreement or restriction of any kind or character to which
Racom is a party or by which Racom is bound. No consent or approval by, or
filing with, any governmental authority is required in connection with the
execution and delivery of this Agreement by Racom or the consummation of the
transactions contemplated hereby.
3.4 RESTRICTIONS. The shares of Common Stock to be transferred pursuant
to this Agreement will be transferred free and clear of all liens and other
encumbrances.
ARTICLE FOUR
REPRESENTATIONS AND WARRANTIES
------------------------------
OF ROHM
-------
Rohm represents and warrants to Racom as follows:
4.1 ORGANIZATION AND GOOD STANDING. Rohm is a corporation, duly
organized, validly existing and in good standing under the laws of Japan and
has all requisite power and authority to conduct its business as it is now
conducted.
4.2 CORPORATE POWER. Rohm has complete power to execute, deliver and
perform this Agreement and, as of the Closing, has taken all corporate action
required by law, its articles of incorporation, its bylaws or otherwise, to
authorize the execution, delivery and performance of this Agreement, and this
Agreement is a valid and binding obligation of Rohm, enforceable in
accordance with its terms.
4.3 NO VIOLATION. Neither the execution nor the consummation of this
Agreement will constitute a violation of or default under any term or
provision of Rohm's articles of incorporation or bylaws, or any contract,
commitment, indenture or other agreement or restriction of any kind or
character to which Rohm is a party or by which Rohm is bound. No consent or
approval by, or filing with, any governmental authority is required in
connection with the execution and delivery of this Agreement by Rohm or the
consummation of the transactions contemplated hereby.
4.4 INVESTMENT PURPOSE. Rohm is acquiring the shares of common stock
for its own account for investment purposes and not for the interest of any
other person, and with no present intention of reselling or distributing the
shares of common stock. Rohm acknowledges that the common stock being sold
hereunder has not been registered under the Securities Act of 1933, as
amended, and as such, the common stock is deemed to be "restricted stock" and
may only be resold in compliance with applicable state and federal securities
laws.
3
4.5 ACCREDITATION. Rohm, and its respective officers and directors,
have such knowledge and experience in business and financial matters as to be
capable of evaluating the merits and risks of investing in the common stock,
and can afford a complete loss of this investment.
ARTICLE FIVE
CONDITIONS PRECEDENT
--------------------
5.1 CONDITIONS PRECEDENT TO RACOM'S OBLIGATIONS. The obligations of
Racom contained in this Agreement are subject to the fulfillment prior to or
at the Closing or Second Closing, as appropriate, of each of the following
conditions:
(a) COMPLIANCE WITH AGREEMENT. Rohm shall have performed,
in all material respects, its obligations and agreements, and complied
in all material respects with its covenants, contained in this
Agreement to the extent required to be performed prior to or at the
Closing or Second Closing, as appropriate.
(b) SUPPORTING DOCUMENTS. All corporate action required to be
taken by Rohm in connection with the transactions contemplated by this
Agreement, as reasonably determined by Racom, shall be evidenced by
documents reasonably satisfactory in form and substance to Racom.
(c) ROHM REPRESENTATIONS. All representations and warranties of
Rohm shall be valid and true on the Closing Date or Second Closing
Date, as appropriate, as if made then and Rohm shall deliver to Racom
such written certification as deemed reasonably necessary by Racom
certifying the validity and truth of Rohm's representations and
warranties.
5.2 CONDITIONS PRECEDENT TO ROHM'S OBLIGATIONS. The obligations of
Rohm contained in this Agreement are subject to the fulfillment prior to or
at the Closing or Second Closing, as appropriate, of each of the following
conditions:
(a) COMPLIANCE WITH AGREEMENT. Racom shall have performed,
in all material respects, its respective obligations and agreements,
and complied in all material respects with its covenants, contained in
this Agreement to the extent required to be performed prior to or at
the Closing or Second Closing, as appropriate.
(b) SUPPORTING DOCUMENTS. All corporate action required to be
taken by Racom in connection with the transactions contemplated by
this Agreement, as reasonably determined by Rohm, shall be evidenced
by documents reasonably satisfactory in form and substance to Rohm.
4
(c) RACOM REPRESENTATIONS. All representations and
warranties of Racom shall be valid and true on the Closing Date or
Second Closing Date, as appropriate, as if made then and Racom shall
deliver to Rohm such written certification as deemed reasonably
necessary by Rohm certifying the validity and truth of Racom's
representations and warranties.
ARTICLE SIX
INDEMNIFICATION
---------------
6.1 RACOM. Racom shall protect, defend, indemnify and hold Rohm and
its respective officers, directors, employees and agents harmless from any
and all claims (including, without limitation, all losses, liabilities,
demands, expenses, damages, court costs and attorneys' fees and costs),
resulting directly or indirectly, entirely or in part, from any breach of
Racom's obligations, representations and warranties under this Agreement.
Notwithstanding any provision in this Section 6.1 to the contrary, Rohm and
its respective officers, directors, employees and agents shall have no right
to indemnification under this Section 6.1 if the claim results solely from
Rohm's or its respective officers', directors', employees' or agents'
negligent or intentional act or omissions or from a claim by Racom against
Rohm or its respective officers, directors, employees or agents.
6.2 ROHM. Rohm shall protect, defend, indemnify and hold Racom and its
respective officers, directors, employees and agents harmless from any and
all claims (including, without limitation, all losses, liabilities, demands,
expenses, damages, court costs and attorneys' fees and costs), resulting
directly or indirectly, entirely or in part, from any breach of Rohm's
obligations, representations and warranties under this Agreement.
Notwithstanding any provision in this Section 6.2 to the contrary, Racom and
its respective officers, directors, employees and agents shall have no right
to indemnification under this Section 6.2 if the claim results solely from
Racom's or its respective officers', directors', employees' or agents'
negligent or intentional acts or omissions or from a claim by Rohm against
Racom or its respective officers, directors, employees and agents.
ARTICLE SEVEN
EXPENSES OF THE PARTIES
-----------------------
7.1 NO BROKERS OR FINDERS. The parties agree that no broker or finder
is involved in this transaction and no commission is due any broker or
finder. Each party shall indemnify the other against all losses suffered by
the other if the party's warranty hereunder is incorrect or inaccurate.
7.2 PAYMENT OF EXPENSES. Each party to this Agreement agrees to pay
its own expenses incurred in connection with (i) the execution and adoption
of this Agreement and (ii) the consummation of the transactions hereunder,
including, without limitation, disbursements, costs, charges, printing
expenses, attorneys' and accountants' fees (including audit costs).
5
ARTICLE EIGHT
MISCELLANEOUS
8.1 AMENDMENTS. No part of this Agreement may be amended, altered or
otherwise changed unless in writing duly executed by the parties hereto.
8.2 ENTIRE AGREEMENT AND COUNTERPARTS. This Agreement contains the
entire agreement between the parties and supersedes and shall be substituted
for each and every agreement with respect to the subject matter hereof,
whether written, oral or otherwise in effect between the parties.
8.3 GOVERNING LAW. This Agreement shall be construed and interpreted
in accordance with, and the rights and obligations of the parties shall be
determined by, the laws of the State of California, U.S.A. without giving
effect to the principles of conflicts of laws. This Agreement shall be
executed in the English language which shall be the original and shall
control in the event of any difference between the English text of this
Agreement and any translation hereof which may be made.
8.4 NOTICES. All notices and communications that are required pursuant
to this Agreement shall be written in the English language and transmitted by
airmail and/or telex, acknowledgment of receipt required, to the addressee
party at its respective address set forth in the first paragraph of this
Agreement or such other address as the addressee party may from time to time
designate to the other party in writing
8.5 ASSIGNMENT. Each party to this Agreement may not assign this
Agreement or any rights under this Agreement without the express written
permission of the other party. Notwithstanding the above, in the event of
transfer of a controlling interest in a party to a party not in control at
the time of the execution of this Agreement, this Agreement shall bind and
inure to the benefit of each party, its successors and assigns.
8.6 ARBITRATION. All disputes, controversies, or differences which may
arise between the parties, out of or in relation to or in connection with
this Agreement, or the breach thereof, which cannot be resolved between the
parties shall be settled by arbitration in accordance with the Rules of
Conciliation and Arbitration of the International Chamber of Commerce by
three (3) arbitrators. Each party shall appoint one (1) arbitrator of its
choosing, and the two (2) arbitrators thus selected shall appoint a third
arbitrator, who may not be a national of U.S. or Japan. Such arbitration
shall be held in the English language in Denver, Colorado if Rohm is the
demanding party, or in Osaka, Japan, if Racom is the demanding party. The
arbitration award shall be final and binding upon the parties.
6
8.7 SEVERABILITY. In the event that any provision hereof is found to
be invalid, illegal or unenforceable, the validity, legality and
unenforceability of the remaining provisions shall in no way be affected or
impaired thereby.
8.8 FURTHER ASSURANCES. In addition to the acts and deeds recited
herein and contemplated to be performed, executed and/or delivered by either
Racom or Rohm, Racom and Rohm shall perform, execute and/or deliver, or cause
to be performed, executed and/or delivered at the Closing or Second Closing,
or, if necessary, after the Closing or Second Closing, any and all further
acts, deeds and assurances as may from time to time be reasonably requested
to consummate the transactions contemplated by this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused their respective duly
authorized representatives to sign this Agreement on the day and year first
above written in duplicate, each party retaining an original copy.
ROHM CO., LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Title: Managing Director
----------------------------
RACOM SYSTEMS, INC.
By: /s/ illegible
-------------------------------
Name: ILLEGIBLE
-----------------------------
Title: PRESIDENT/CEO
----------------------------
7
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement") is entered into effective as of
the 21 day of June, 1995 by and between Rohm Co., Ltd., a corporation organized
under the laws of Japan, having its principal place of business at ▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇, ▇▇▇▇▇, ▇▇▇, ▇▇▇▇▇ ("Rohm"), and Racom Systems, Inc., a
company organized under the laws of the State of Delaware, U.S.A., having its
principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Racom").
RECITALS
--------
THIS AGREEMENT sets forth the understandings and agreements pursuant to
which Rohm will acquire from Racom a total of 500,000 shares of Racom common
stock.
NOW, THEREFORE, in consideration of the promises and of the mutual
covenants and agreements contained herein, the parties agree as follows:
ARTICLE ONE
SALE AND PURCHASE
-----------------
1.1 SALE AND PURCHASE OF COMMON STOCK. Subject to the terms and
conditions of this Agreement and in reliance on the representations and
warranties contained herein, Rohm hereby agrees to purchase from Racom and
Racom hereby agrees to sell to Rohm a total of 500,000 shares of Racom common
stock, par value $0.01. On the Closing Date (as hereinafter defined), Rohm
shall purchase from Racom 300,000 shares of Racom common stock, par value
$0.01, for a purchase price of US$900,000 (US$3.00 per share). In addition,
on the Second Closing Date (as hereinafter defined) Rohm shall purchase from
Racom an additional 200,000 shares of Racom common stock, par value $0.01,
for a purchase price of US$600,000 (US$3.00 per share). The terms,
designations, rights, preferences and limitations of the Common Stock are as
set forth in Racom's certificate of incorporation and bylaws. The parties
agree that the Purchase Price shall be paid in the manner specified in
Article 2 below.
ARTICLE TWO
CLOSING AND SECOND CLOSING
--------------------------
2.1 CLOSING AND SECOND CLOSING. For purposes of this Agreement, (i)
the term "Closing" or "Closing Date" shall mean a date not more than ten (10)
days following the execution by the parties of the Cooperative Agreement for
Licensed Manufacturing of Ferroelectric RFID Products, such date to be
mutually agreed to by the parties, and (ii) the term "Second Closing" or
"Second Closing Date" shall mean a date not more than thirty (30) days
following the cumulative sale by Rohm of ten million Custom Ferroelectric
RFID Products, such date to be mutually agreed
by the parties. Subject to the performance, satisfaction or waiver of each
condition precedent set forth in Article 5 hereof, the Closing and Second
Closing of the purchase and sale of the common stock shall take place at a
mutually convenient location as agreed by the parties.
2.2 SUBMISSIONS OF RACOM. On each of the Closing Date and Second
Closing Date, Racom shall deliver to Rohm the following:
(a) A stock certificate(s) duly endorsed or with stock power(s)
duly endorsed in favor of Rohm for the appropriate number of
shares of common stock being purchased on such date;
(b) A copy of the resolutions of Racom's Board of Directors
approving the execution of this Agreement and the consummation of the
transactions contemplated by this Agreement; and
(c) Such other documents or instruments as may be reasonably
requested by Rohm to consummate the transactions contemplated in this
Agreement.
2.3 SUBMISSIONS OF ROHM. On each of the Closing Date and Second
Closing Date, Rohm shall:
(a) Wire transfer to Racom at Racom's direction the applicable
purchase price for the common stock being purchased on such date and submit
such certifications or confirmations, as deemed reasonably necessary by
Racom, verifying the payment of the purchase price; and
(b) Such other documents or instruments as may be reasonably
requested by Racom to consummate the transactions contemplated in this
Agreement.
ARTICLE THREE
REPRESENTATIONS AND WARRANTIES
------------------------------
OF RACOM
--------
Racom hereby represents and warrants to Rohm as follows:
3.1 ORGANIZATION AND GOOD STANDING. Racom is a corporation, duly
organized, validly existing and in good standing under the laws of the State of
Delaware, U.S.A. and has all requisite power and authority to conduct its
business as such business is now conducted.
3.2 CORPORATE POWER. Racom has complete power to execute, deliver and
perform this Agreement and, as of the Closing, has taken all corporate action
required by law, its articles of incorporation, its bylaws or otherwise, to
authorize the execution, delivery and performance of this
2
Agreement, and this Agreement is a valid and binding obligation of Racom,
enforceable in accordance with its terms.
3.3 NO VIOLATION. Neither the execution nor the consummation of this
Agreement will constitute a violation of or default under any term or
provision of Racom's articles of incorporation or bylaws, or any contract,
commitment, indenture or other agreement or restriction of any kind or
character to which Racom is a party or by which Racom is bound. No consent
or approval by, or filing with, any governmental authority is required in
connection with the execution and delivery of this Agreement by Racom or the
consummation of the transactions contemplated hereby.
3.4 RESTRICTIONS. The shares of Common Stock to be transferred
pursuant to this Agreement will be transferred free and clear of all liens
and other encumbrances.
ARTICLE FOUR
REPRESENTATIONS AND WARRANTIES
------------------------------
OF ROHM
-------
Rohm represents and warrants to Racom as follows:
4.1 ORGANIZATION AND GOOD STANDING. Rohm is a corporation, duly
organized, validly existing and in good standing under the laws of Japan and
has all requisite power and authority to conduct its business as it is now
conducted.
4.2 CORPORATE POWER. Rohm has complete power to execute, deliver and
perform this Agreement and, as of the Closing, has taken all corporate action
required by law, its articles of incorporation, its bylaws or otherwise, to
authorize the execution, delivery and performance of this Agreement, and this
Agreement is a valid and binding obligation of Rohm, enforceable in
accordance with its terms.
4.3 NO VIOLATION. Neither the execution nor the consummation of this
Agreement will constitute a violation of or default under any term or
provision of Rohm's articles of incorporation or bylaws, or any contract,
commitment, indenture or other agreement or restriction of any kind or
character to which Rohm is a party or by which Rohm is bound. No consent or
approval by, or filing with, any governmental authority is required in
connection with the execution and delivery of this Agreement by Rohm or the
consummation of the transactions contemplated hereby.
4.4 INVESTMENT PURPOSE. Rohm is acquiring the shares of common stock
for its own account for investment purposes and not for the interest of any
other person, and with no present intention of reselling or distributing the
shares of common stock. Rohm acknowledges that the common stock being sold
hereunder has not been registered under the Securities Act of 1933, as
amended, and as such, the common stock is deemed to be "restricted stock" and
may only be resold in compliance with applicable state and federal securities
laws.
3
4.5 ACCREDITATION. Rohm, and its respective officers and directors,
have such knowledge and experience in business and financial matters as to be
capable of evaluating the merits and risks of investing in the common stock,
and can afford a complete loss of this investment.
ARTICLE FIVE
CONDITIONS PRECEDENT
--------------------
5.1 CONDITIONS PRECEDENT TO RACOM'S OBLIGATIONS. The obligations of
Racom contained in this Agreement are subject to the fulfillment prior to or
at the Closing or Second Closing, as appropriate, of each of the following
conditions:
(a) COMPLIANCE WITH AGEEMENT. Rohm shall have performed, in all
material respects, its obligations and agreements, and complied in all
material respects with its covenants, contained in this Agreement to
the extent required to be performed prior to or at the Closing or
Second Closing, as appropriate.
(b) SUPPORTING DOCUMENTS. All corporate action required to be
taken by Rohm in connection with the transactions contemplated by this
Agreement, as reasonably determined by Racom, shall be evidenced by
documents reasonably satisfactory in form and substance to Racom.
(c) ROHM REPRESENTATIONS. All representations and
warranties of Rohm shall be valid and true on the Closing Date or
Second Closing Date, as appropriate, as if made then and Rohm shall
deliver to Racom such written certification as deemed reasonably
necessary by Racom certifying the validity and truth of Rohm's
representations and warranties.
5.2 CONDITIONS PRECEDENT TO ROHM'S OBLIGATIONS. The obligations of
Rohm contained in this Agreement are subject to the fulfillment prior to or
at the Closing or Second Closing, as appropriate, of each of the following
conditions:
(a) COMPLIANCE WITH AGREEMENT. Racom shall have performed,
in all material respects, its respective obligations and agreements,
and complied in all material respects with its covenants, contained in
this Agreement to the extent required to be performed prior to or at
the Closing or Second Closing, as appropriate.
(b) SUPPORTING DOCUMENTS. All corporate action required to
be taken by Racom in connection with the transactions contemplated by
this Agreement, as reasonably determined by Rohm, shall be evidenced
by documents reasonably satisfactory in form and substance to Rohm.
4
(c) RACOM REPRESENTATIONS. All representations and
warranties of Racom shall be valid and true on the Closing Date or
Second Closing Date, as appropriate, as if made then and Racom shall
deliver to Rohm such written certification as deemed reasonably
necessary by Rohm certifying the validity and truth of Racom's
representations and warranties.
ARTICLE SIX
INDEMNIFICATION
---------------
6.1 RACOM. Racom shall protect, defend, indemnify and hold Rohm and
its respective officers, directors, employees and agents harmless from any
and all claims (including, without limitation, all losses, liabilities,
demands, expenses, damages, court costs and attorneys' fees and costs),
resulting directly or indirectly, entirely or in part, from any breach of
Racom's obligations, representations and warranties under this Agreement.
Notwithstanding any provision in this Section 6.1 to the contrary, Rohm and
its respective officers, directors, employees and agents shall have no right
to indemnification under this Section 6.1 if the claim results solely from
Rohm's or its respective officers', directors', employees' or agents'
negligent or intentional act or omissions or from a claim by Racom against
Rohm or its respective officers, directors, employees or agents.
6.2 ROHM. Rohm shall protect, defend, indemnify and hold Racom and its
respective officers, directors, employees and agents harmless from any and
all claims (including, without limitation, all losses, liabilities, demands,
expenses, damages, court costs and attorneys' fees and costs), resulting
directly or indirectly, entirely or in part, from any breach of Rohm's
obligations, representations and warranties under this Agreement.
Notwithstanding any provision in this Section 6.2 to the contrary, Racom and
its respective officers, directors, employees and agents shall have no right
to indemnification under this Section 6.2 if the claim results solely from
Racom's or its respective officers', directors', employees' or agents'
negligent or intentional acts or omissions or from a claim by Rohm against
Racom or its respective officers, directors, employees and agents.
ARTICLE SEVEN
EXPENSES OF THE PARTIES
-----------------------
7.1 NO BROKERS OR FINDERS. The parties agree that no broker or finder
is involved in this transaction and no commission is due any broker or
finder. Each party shall indemnify the other against all losses suffered by
the other if the party's warranty hereunder is incorrect or inaccurate.
7.2 PAYMENT OF EXPENSES. Each party to this Agreement agrees to pay
its own expenses incurred in connection with (i) the execution and adoption of
this Agreement and (ii) the consummation of the transactions hereunder,
including, without limitation, disbursements, costs, charges, printing expenses,
attorneys' and accountants' fees (including audit costs).
5
ARTICLE EIGHT
MISCELLANEOUS
-------------
8.1 AMENDMENTS. No part of this Agreement may be amended, altered or
otherwise changed unless in writing duly executed by the parties hereto.
8.2 ENTIRE AGREEMENT AND COUNTERPARTS. This Agreement contains the
entire agreement between the parties and supersedes and shall be substituted
for each and every agreement with respect to the subject matter hereof,
whether written, oral or otherwise in effect between the parties.
8.3 GOVERNING LAW. This Agreement shall be construed and interpreted
in accordance with, and the rights and obligations of the parties shall be
determined by, the laws of the State of California, U.S.A. without giving
effect to the principles of conflicts of laws. This Agreement shall be
executed in the English language which shall be the original and shall
control in the event of any difference between the English text of this
Agreement and any translation hereof which may be made.
8.4 NOTICES. All notices and communications that are required pursuant
to this Agreement shall be written in the English language and transmitted by
airmail and/or telex, acknowledgment of receipt required, to the addressee
party at its respective address set forth in the first paragraph of this
Agreement or such other address as the addressee party may from time to time
designate to the other party in writing
8.5 ASSIGNMENT. Each party to this Agreement may not assign this
Agreement or any rights under this Agreement without the express written
permission of the other party. Notwithstanding the above, in the event of
transfer of a controlling interest in a party to a party not in control at
the time of the execution of this Agreement, this Agreement shall bind and
inure to the benefit of each party, its successors and assigns.
8.6 ARBITRATION. All disputes, controversies, or differences which may
arise between the parties, out of or in relation to or in connection with
this Agreement, or the breach thereof, which cannot be resolved between the
parties shall be settled by arbitration in accordance with the Rules of
Conciliation and Arbitration of the International Chamber of Commerce by
three (3) arbitrators. Each party shall appoint one (1) arbitrator of its
choosing, and the two (2) arbitrators thus selected shall appoint a third
arbitrator, who may not be a national of U.S. or Japan. Such arbitration
shall be held in the English language in Denver, Colorado if Rohm is the
demanding party, or in Osaka, Japan, if Racom is the demanding party. The
arbitration award shall be final and binding upon the parties.
6
8.7 SEVERABILITY. In the event that any provision hereof is found to be
invalid, illegal or unenforceable, the validity, legality and
unenforceability of the remaining provisions shall in no way be affected or
impaired thereby.
8.8 FURTHER ASSURANCES. In addition to the acts and deeds recited
herein and contemplated to be performed, executed and/or delivered by either
Racom or Rohm, Racom and Rohm shall perform, execute and/or deliver, or cause
to be performed, executed and/or delivered at the Closing or Second Closing,
or, if necessary, after the Closing or Second Closing, any and all further
acts, deeds and assurances as may from time to time be reasonably requested
to consummate the transactions contemplated by this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused their respective duly
authorized representatives to sign this Agreement on the day and year first
above written in duplicate, each party retaining an original copy.
ROHM CO., LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Title: Managing Director
----------------------------
RACOM SYSTEMS, INC.
By: /s/ illegible
-------------------------------
Name: ILLEGIBLE
-----------------------------
Title: PRESIDENT/CEO
----------------------------
7
