EXHIBIT 10.76
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement"), is effective as of the
30/th/ day of September 1999, is made by and among Polyphase Corporation, a
corporation duly organized and existing pursuant to the laws of the state of
Nevada (hereinafter referred to as "Seller"), Polyphase Instrument Acquisition
Corporation, a Pennsylvania corporation (hereinafter referred to as "Buyer"),
and Polyphase Instrument Co, a corporation duly organized and existing pursuant
to the laws of the Commonwealth of Pennsylvania (hereinafter referred to as the
"Company").
W I T N E S S E T H:
WHEREAS, the Company is authorized to issue 20,000 shares of common stock, One
Dollar ($1) par value per share, and
WHEREAS, all of the issued and outstanding capital stock of the Company
consists of 20,000 shares of common stock, One Dollar ($1) par value per share
(the "Shares"), and
WHEREAS, Seller is currently the owner of the Shares; and
WHEREAS, Seller desires to sell, and Buyer desires to purchase the Shares for
the consideration and on the terms set forth in this Agreement, and
WHEREAS, the Board of Directors of the Seller and the Board of Directors of
the Company believe it is in the best interest of the stockholders of each such
corporation for Buyer to purchase and Seller to sell the Shares on the terms and
conditions set forth herein.
NOW, THEREFORE, for and in consideration of the premises and of the mutual
covenants, representations, warranties and agreements herein contained, the
parties hereto agree as follows:
2
AGREEMENT
The parties, intending to be legally bound, agree as follows:
1. Sale and Transfer of Shares; Closing
------------------------------------
1.1 Shares. Subject to the terms and conditions of this Agreement, at the
------
Closing, Seller will sell and transfer the Shares to Buyer, and Buyer will
purchase the Shares from Seller.
1.2 Purchase Price. The purchase price (the "Purchase Price") for the
Shares will be Two Million Seven Hundred Eighty Thousand Dollars ($2,780,000),
payable as follows:
(a) $750,000 previously deposited with the Seller on June 30, 1999;
and
(b) $250,000 previously deposited with the Seller on September 30,
1999;
(c) $1,780,000 to be paid as follows:
(i) $780,000 cash at Closing; and
(ii) A subordinated promissory note (the "Note"), in the original
principal amount of One Million Dollars ($1,000,000), in the form attached
hereto as Exhibit "A." The promissory note shall bear interest at eight
percent (8%) per annum. Payments of interest only shall begin on January
1, 2000 and be due quarterly in arrears until October 1, 2001, when
interest, together with quarterly principal reductions in the amount of
Fifty Thousand Dollars ($50,000) shall become payable with the final
payment of principal and interest due and payable on the seventh year
anniversary of the Closing Date. The Note shall be secured by a lien on
the Shares being acquired by the Buyer, and by a lien on all of the assets
of the Company. The Buyer's obligations under the Note
3
shall be subordinate and subject in right of payment to the prior payment
of the obligations of the Buyer under credit facilities provided to the
Buyer and the Company by Sovereign Bank in an amount not to exceed One
Million Three Hundred Seventy Five Thousand Dollars ($1,375,000), exclusive
of interest and fees (the "Original Principal Amount") (the "Sovereign
Credit Facility") and to all extensions, renewals and replacements of the
Sovereign Credit Facility up to but not in excess of the Original Principal
Amount (such extensions, renewals, and replacements collectively with the
Sovereign Credit Facility, the "Senior Indebtedness"). All liens securing
the obligations of the Buyer or the Company with respect to the Note shall
also be subordinate and subject in right to the prior liens arising under
the Senior Indebtedness. The Seller agrees to execute and deliver such
documentation as may from time to time reasonably be requested by the
holders of the Senior Indebtedness to confirm the terms of the
subordination provided by this Section.
1.3 Closing. The purchase and sale (the "Closing") provided for in
-------
this Agreement will take place at the offices of Seller's attorney at 00000
X. Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000 contemporaneously with
the execution and delivery of this Agreement, or at such other time and
place as the parties may agree (the "Closing Date"). Subject to the
provisions of Section 8, failure to consummate the purchase and sale
provided for in this Agreement on the date and time and at the place
determined pursuant to this Section 1.3 will not result in the termination
of this Agreement and will not relieve any party of any obligation under
this Agreement.
4
1.4 Closing Obligations. At the Closing:
-------------------
(a) Seller will deliver to Buyer:
(i) Certificates representing the Shares, duly endorsed (or
accompanied by duly executed stock powers);
(ii) An assignment to Buyer in the form of Exhibit B-1 of all
claims of any nature that Seller or any affiliate of Seller may have
against the Company, Polyphase Haiti, S.A., or any of their directors,
officers, employees, consultants, advisors, or representatives
(collectively, the "Representatives") and an acknowledgement that, as
a result of such assignment, Seller and its affiliates have no further
claims against the Company, Polyphase Haiti, S.A., or their
Representatives, except for any claims against the Company or the
Buyer arising under the express provisions of this Agreement;
(iii) A certificate of the Secretary of the Seller, certifying
the adoption by the Seller's Board of Directors of resolutions
approving the execution, delivery and performance of this Agreement by
Seller;
(iv) An assignment of all equity interests and other rights in
Polyphase Haiti, S.A; and
(v) The documents required by Sections 6.2 and 6.3.
(b) Buyer will deliver to Seller:
(i) the remaining balance of the Purchase Price, as follows:
(a) $780,000 cash; and
(b) The Note.
5
(ii) The Company's release of any claims for liability against
Seller in the form attached hereto as Exhibit "B-2";
(iii) Xxx Xxxxxxxxx'x release of any claims for liability
against Seller in the form attached hereto as Exhibit "B-2";
(iv) Xxxxx Xxxxxx'x release of any claims for liability against
Seller in the form attached hereto as Exhibit "B-2";
(v) Xxxxx Xxxxxxxxx'x release of any claims for liability
against Seller in the form attached hereto as Exhibit "B-2" ;
(vi) Xxxxxx Xxxxxx' release of any claims for liability against
Seller in the form attached hereto as Exhibit "B-2";
(vii) The guaranty of the Company in the form attached hereto as
Exhibit "C";
(viii) A security agreement securing the indebtedness evidenced
by the Note executed by the Company in favor of Seller in the form
attached hereto as Exhibit "D"; and
(ix) A pledge agreement executed by the Buyer in favor of
Seller pledging all of the Shares as security for the indebtedness
evidenced by the Note in the form attached hereto as Exhibit "E".
2. Representations and Warranties of Seller:
-----------------------------------------
Seller represents and warrants to Buyer as follows:
2.1 Authority; No Conflict.
----------------------
(a) This Agreement constitutes the legal, valid, and binding
obligation of Seller, enforceable against Seller in accordance with its
terms. Seller has the
6
absolute and unrestricted right, power, authority, and capacity to execute,
deliver and perform this Agreement and has taken all corporate action
necessary to perform its obligations hereunder. This Agreement has been
duly executed and delivered by the Seller.
(b) Neither the execution and delivery of this Agreement nor the
consummation or performance of any of the transactions contemplated by this
Agreement will, directly or indirectly (with or without notice or lapse of
time);
(i) Contravene, conflict with, or result in a violation of any
provision of the certificate of incorporation or bylaws of the Seller
or the Company;
(ii) Contravene, conflict with, or result in a violation of, or
give any governmental body or other person the right to challenge any
of the transactions contemplated by this Agreement or to exercise any
remedy or obtain any relief under, any federal, state or local order,
law, ordinance of regulation or any injunction, judgment, order or
decree of any court, administrative agency or other governmental body
to which the Seller, the Company, or any of their assets may be
subject;
(iii) Contravene, conflict with, or result in a violation or
breach of any provision of, or give any person the right to declare a
default or exercise any remedy under, or to accelerate the maturity or
performance of, or to cancel, terminate, or modify, any contract
applicable to the Company or the Seller; or
7
(iv) Result in the imposition or creation of any charge, claim,
lien, option, pledge, security interest or restriction of any kind
upon or with respect to any of the assets owned or used by the
Company.
2.2 Capitalization. The authorized capital stock of the Company
--------------
consists of 20,000 authorized shares of Common Stock, $1.00 par value per share,
all of which shares are issued and outstanding. The Company has no other capital
stock authorized, issued, or outstanding. The Seller owns beneficially and of
record 100% of the issued and outstanding Shares.
2.3 Filing of Tax Returns. The Seller has timely filed with the
---------------------
Internal Revenue Service all Tax Returns in respect of Federal Income Taxes due
with respect to the operations of the Company required to be filed through the
date hereof. Such Tax Returns as filed are complete and accurate in all
material respects. The Seller has not requested any extension of time within
which to file Tax Returns in respect of any Taxes. The Seller has delivered to
the Buyer complete and accurate copies of all Tax Returns of the Company
required to be filed. For the purposes of this Section 2.3, the following terms
shall have the following meanings:
"Tax Return" means any report, return, document, declaration or
other information or filing required to be supplied to the
Internal Revenue Service, with respect to Taxes, including
information returns, any documents with respect to or
accompanying requests for the extension of time in which to file
any such report, return, document, declaration or other
information.
"Taxes" means any and all taxes, charges, fees, levies or other
assessments, including income, gross receipts, excise, real or
personal property, sales, withholding, social security,
retirement, unemployment, occupation, use, service, license, net
worth, payroll, franchise and transfer and recording, imposed by
the Internal Revenue Service, whether computed on a separate,
consolidated, unitary, combined or any other
8
basis; and such term shall include any interest whether paid or
received, fines, penalties or additional amounts attributable to,
or imposed upon, or with respect to, any such taxes, charges,
fees, levies or other assessments.
2.4 Books and Records. To the knowledge of the Seller the minute book of
-----------------
the Company contains accurate and complete records of all meetings held of, and
corporate action taken by, the stockholders and the Board of Directors of the
Company.
2.5 No Misstatements or Omissions. No representation or warranty of
-----------------------------
Seller in this Agreement omits to state a material fact necessary to make the
statements herein or therein, in light of the circumstances under which they
were made, not misleading.
2.6 Brokers or Finders. Seller and its agents have incurred no obligation
------------------
or liability, contingent or otherwise, for brokerage or finders' fees or agents'
commissions or other similar payment in connection with this Agreement and will
indemnify and hold Buyer harmless from any such payment alleged to be due by or
through Seller as a result of the action of Seller or its officers or agents.
3. Representations and Warranties of Buyer. Buyer represents and warrants to
---------------------------------------
Seller as follows:
3.1 Authority; No Conflict.
----------------------
(a) This Agreement constitutes the legal, valid, and binding
obligation of Buyer, enforceable against Buyer in accordance with its
terms. Buyer has the absolute and unrestricted right, power, and authority
to execute, deliver and perform its obligations under this Agreement and
has taken all corporate action
9
necessary to perform its obligations hereunder. This Agreement has been
duly executed and delivered by the Buyer.
(b) Neither the execution and delivery of this Agreement by Buyer nor
the consummation or performance of any of the transactions contemplated by
this Agreement by Buyer will give any person the right to prevent, delay,
or otherwise interfere with any of the transactions contemplated by this
Agreement pursuant to:
(i) any federal, state or local order, law, ordinance or regulation
or injunction, judgment, order or decree of any court, administrative
agency or other governmental body to which Buyer may be subject; or
(ii) any agreement, contract, obligation, promise or undertaking to
which Buyer is a party or by which Buyer may be bound.
(c) Buyer is not and will not be required to obtain any consent from
any person in connection with the execution and delivery of this
Agreement or the consummation or performance of any of the
transactions contemplated by this Agreement.
3.2 Investment in Shares.
--------------------
(a) Buyer is acquiring the Shares for its own account and not with a
view to their distribution within the meaning of Section 2(11) of the
Securities Act of 1933.
(b) Buyer has received all information it believes necessary to make
an informed decision about its acquisition of the Shares.
10
(c) Buyer understands that the Shares are not registered under federal
or state securities laws and may not be offered, sold, transferred or
otherwise disposed of except pursuant to a registration statement or an
exemption from registration under those laws.
3.3 Certain Proceedings. There is no pending proceeding against Buyer
-------------------
that challenges, or may have the effect of preventing, delaying, making illegal,
or otherwise interfering with, any of the transactions contemplated by this
Agreement. To Buyer's knowledge, no such proceeding has been threatened.
3.4 Brokers or Finders. Buyer and its officers and agents have incurred
------------------
no obligation or liability, contingent or otherwise, for brokerage or finders'
fee or agents' commissions or other similar payment in connection with this
Agreement and will indemnify and hold Seller harmless from any such payment
alleged to be due by or through Buyer as a result of the action of Buyer or its
officers or agents.
3.5 Access and Investigation. Buyer, its directors, officers and agents
------------------------
and prospective lenders and their representatives (collectively, "Buyer's
Advisors") have had full and free access to the Company's personnel, properties,
contracts, books and records, and other documents and data, and such financial,
operating, and other date and information as Buyer deemed necessary.
3.6 Seller's Contingent Liability. On or before the expiration of sixty
-----------------------------
days following the Closing, Buyer shall cause the Company to extinguish the
indebtedness owed to third parties identified on Schedule 3.6 to this Agreement
for which the Seller has contingent or direct liability. If Buyer is unable to
retire all such indebtedness, Buyer shall cause Seller to be released from any
and all liability with respect to all such indebtedness.
11
4. Conditions Precedent to Buyer's Obligation to Close.
---------------------------------------------------
Buyer's obligations to purchase the Shares and to take the other actions
required to be taken by Buyer at the Closing are subject to the satisfaction, at
or prior to the Closing, of each of the following conditions (any of which may
be waived by Buyer, in whole or in part).
4.1 Accuracy of Representations. All of Seller's representations and
---------------------------
warranties in this Agreement must have been accurate in all material respects as
of the date of this Agreement, and must be accurate in all material respects as
of the Closing Date as if made on the Closing Date.
4.2 Seller's Performance.
--------------------
(a) All of the covenants and obligations that Seller is required to
perform or to comply with pursuant to this Agreement at or prior to the
Closing, must have been duly performed and compiled with in all material
respects.
(b) Each document required to be delivered pursuant to Section 1.4
must have been delivered.
4.3 No Proceedings. Since the date of this Agreement, there must not
--------------
have been with respect to Buyer (i) any effective injunction, writ, or temporary
restraining order of any nature issued by a court or governmental agency of
competent jurisdiction directing that the proposed acquisition not be
consummated or (ii) any action, suit, or proceeding pending or threatened by or
before any court or governmental body in which it is or may be sought to
prohibit, substantially delay, or
12
rescind the proposed acquisition, or to limit in any way Buyer's right to
acquire the Company.
4.4 Additional Documents. Seller must have caused to be delivered to
--------------------
Buyer such documents as Buyer may reasonably request for the purpose of (i)
evidencing the accuracy of any representation or warranty of Seller, (ii)
evidencing the performance by Seller, or the compliance by Seller with, any
covenant or obligation required to be performed or complied with by the Seller,
or (iii) evidencing the satisfaction of any condition referred to in this
Section 4.
5. Conditions Precedent to Seller's Obligation to Close. Seller's obligations
----------------------------------------------------
to sell the Shares and to take the other actions required to be taken by Seller
at the Closing are subject to the satisfaction, at or prior to the Closing, or
each of the following conditions (any of which may be waived by Seller, in whole
or in part).
5.1 Accuracy of Representations. All of Buyer's representations and
---------------------------
warranties in this Agreement must have been accurate in all material respects as
of the date of this Agreement and must be accurate in all material respects as
of the Closing Date as if made on the Closing Date.
13
5.2 Buyer's Performance.
-------------------
(a) All of the covenants and obligations that Buyer is required to
perform or to comply with pursuant to this Agreement at or prior to the
Closing must have been performed and complied with in all material
respects.
(b) Buyer must have delivered each of the documents required to be
delivered by Buyer pursuant to Section 1.4 and must have paid the remaining
balance of the Purchase Price required to be made by Buyer pursuant to
Section 1.4(b).
5.3 Additional Documents. Buyer must have caused to be delivered to
--------------------
Seller such documents as Seller may reasonably request for the purposes of (i)
evidencing the accuracy of any representation or warranty of Buyer, (ii)
evidencing the performance by Buyer of, or the compliance by Buyer with, any
covenant or obligation required to be performed or complied with by Buyer, or
(iii) evidencing the satisfaction of any condition referred to in this Section
5.
5.4 No Proceedings. Since the date of this Agreement, there must not
--------------
have been with respect to Seller (i) any effective injunction, writ, or
temporary restraining order of any nature issued by a court or governmental
agency of competent jurisdiction directing that the proposed acquisition not be
consummated or (ii) any action, suit, or proceeding pending or threatened by or
before any court or governmental body in which it is or may be sought to
prohibit, substantially delay, or rescind the proposed acquisition, or to limit
in any way Seller's right to sell the Company.
6. Tax Matters
-----------
14
6.1 Seller's Federal Income Tax Return. Seller and Buyer agree that the
Company will be included in the consolidated Federal income tax return filed by
Seller for the period through the Closing Date.
6.2 Section 1445 Affidavit. Prior to or at the Closing, Seller shall
furnish a non-foreign person affidavit as required by Section 1445 of the Code
prior to the Closing.
6.3 Section 338 (h)(10) Election. The Seller agrees to join with the
Buyer in making an election under Section 338(h)(10) of the Code (and any
corresponding elections under state, local, or foreign tax law) (collectively, a
"Section 338(h)(10) Election") with respect to the purchase and sale of the
capital stock of the Company hereunder. The Company shall prepare and the
Purchaser, the Seller, and the Company shall execute at the Closing any and all
forms necessary to effectuate the Section 338(h)(10) Election (including
Internal Revenue Service Form 8023 and any similar forms under applicable state
income tax law). The Seller shall pay any taxes attributable to the making of
the Section 338(h)(10) Election.
6.4 Allocation of Purchase Price. Each of the parties hereto agrees to
the allocation of the consideration payable by the Buyer set forth in Schedule
--------
6.4 of this Agreement.
---
7. Termination.
------------
7.1 Termination Events. This Agreement may, by notice given prior to or
------------------
at the Closing, be terminated:
15
(a) by either Buyer or Seller if a material breach of any provision
of this Agreement has been committed by the other party and such breach has
not been waived;
(b) by mutual consent of Buyer and Seller; or
(c) by either Buyer or Seller if the Closing has not occurred (other
than through the failure of any party seeking to terminate this Agreement
to comply fully with its obligations under this Agreement) on or before the
date of this Agreement is executed and delivered by both parties, or such
later date as the parties may agree upon.
7.2 Effect of Termination. Each party's right of termination under
---------------------
Section 7.1 is in lieu of any other rights it may have under this Agreement or
otherwise, and the exercise of a right of termination will be an election of
remedies. If this Agreement is terminated pursuant to Section 7.1, all further
obligations of the parties under this Agreement will terminate, except that the
obligations in Sections 8.1 and 8.2 will survive.
8. Indemnification; Remedies.
--------------------------
8.1 Indemnification and Payment of Damages by Seller. Seller will
------------------------------------------------
indemnify and hold harmless Buyer, the Company, and its respective directors,
officers, stockholders, controlling persons, and affiliates (collectively, the
"Buyer Indemnified Persons") for, and will pay to the Buyer Indemnified Persons
the amount of, any loss, liability, claim, damage, expense (including costs of
investigation and defense and reasonable attorneys' fees) or diminution of
value, whether or not involving a third-party claim, arising, directly or
indirectly, from or in connection with the breach of any
16
warranty, representation, covenant or agreement of Seller contained in this
Agreement or in any certificate or instrument of conveyance delivered by or on
behalf of the Seller in connection with the transactions contemplated by this
Agreement.
8.2 Indemnification and Payment of Damages by Buyer. Buyer will indemnify
-----------------------------------------------
and hold harmless Seller and its respective directors, officers, stockholders,
controlling persons, and affiliates (collectively, the "Seller Indemnified
Persons") for, and will pay to the Seller Indemnified Persons the amount of, any
loss, liability, claim, damage, expense (including costs of investigation and
defense and reasonable attorneys' fees) or diminution of value, whether or not
involving a third party claim, arising, directly or indirectly, from or in
connection with the breach of any warranty, representation, covenant or
agreement of Buyer of contained in this Agreement or in any certificate or
instrument with the transactions contemplated by this Agreement.
8.3 Time Limitations. If the Closing occurs, neither party will have
----------------
liability (for indemnification or otherwise) with respect to any representation
or warranty, unless on or before the 545th day following the Closing Date the
other party notifies the party of a claim specifying the factual basis of that
claim in reasonable detail to the extent then known by the other party;
provided, that the limitation set forth in this Section 8.3 shall not apply to
(i) any liability for the breach of the representations and warranties contained
in Section 2.2 or 2.6 or (ii) any liability under Section 8.1 or 8.2 for the
breach of any covenant or agreement of Seller or Buyer.
8.4 Procedure for Indemnification-Third Party Claims.
------------------------------------------------
17
(a) Promptly after receipt by an indemnified party of notice of the
commencement of any proceeding against it, such indemnified party will, if
a claim is to be made against an indemnifying party, give notice to the
indemnifying party of the commencement of such claim, but the failure to
notify the indemnifying party will not relieve the indemnifying party of
any liability that it may have to any indemnified party, except to the
extent that the indemnifying party demonstrates that the defense of such
action is prejudiced by the indemnified party's failure to give such
notice.
(b) If any proceeding referred to in Section 8.4(a) is brought
against an indemnified party and it gives notice to the indemnifying party
of the commencement of such proceeding, the indemnifying party will be
entitled to participate in such proceeding and, to the extent that it
wishes (unless (i) the indemnifying party is also a party to such
proceeding and the indemnified party determines in good faith that joint
representation would be inappropriate, or (ii) the indemnifying party fails
to provide reasonable assurance to the indemnified party of its financial
capacity to defend such proceeding and provide indemnification with respect
to such proceeding), to assume the defense of such proceeding with counsel
reasonably satisfactory to the indemnified party and, after notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such proceeding, the indemnifying party will not, as long as it
diligently conducts such defense, be liable to the indemnified party under
this Section 8 for any fees of other counsel or any other expenses with
respect to the defense of such proceeding, in each case subsequently
incurred by
18
the indemnified party in connection with the defense of such proceeding,
other than reasonable costs of investigation. If the indemnifying party
assumes the defense of a proceeding, (i) no compromise or settlement of
such claims may be effected by the indemnifying party without the
indemnified party's consent unless (A) there is no finding or admission of
any violation of federal, state or local laws, orders, ordinances or
regulations or any violation of the rights of any person and no effect on
any other claims that may be made against the indemnified party, and (B)
the sole relief provided is monetary damages that are paid in full by the
indemnifying party; and (ii) the indemnified party will have no liability
with respect to any compromise or settlement of such claims effected
without its consent. If notice is given to an indemnifying party of the
commencement of any proceeding and the indemnifying party does not, within
ten days after the indemnified party's notice is given, give notice to the
indemnified party of its election to assume the defense of such proceeding,
the indemnifying party will be bound by any determination made in such
proceeding or any compromise or settlement effected by the indemnified
party.
(c) Notwithstanding the foregoing, if an indemnified party determines
in good faith that there is a reasonable probability that a proceeding may
adversely affect it or its affiliates other than as a result of monetary
damages for which it would be entitled to indemnification under this
Agreement, the indemnified party may, at its own expense, participate in
the defense, compromise, or settlement of such proceeding, but the
indemnifying party will not be bound by any determination of a proceeding
so defended or any
19
compromise or settlement effected without its consent which may not be
unreasonably withheld).
8.5 Procedure for Indemnification-Other Claims. A claim for
------------------------------------------
indemnification for any matter not involving a third party may be asserted by
notice to the party from whom indemnification is sought.
9. General Provisions.
------------------
9.1 Expenses. Except as otherwise expressly provided in this Agreement,
--------
each party to this Agreement will bear its respective expenses incurred in
connection with the preparation, execution, and performance of this Agreement
and the transactions contemplated by this Agreement, including all fees and
expenses of agents, representatives, counsel, and accountants.
9.2 Public Announcements. Except as required by law or on advice of
--------------------
counsel, neither party shall issue any press release or make any public
statement regarding the transactions contemplated hereby without the prior
approval of the other parties, and the parties hereto shall issue a mutually
acceptable press release as soon as practicable after the date hereof.
Notwithstanding the foregoing, either party shall be permitted to make any
public statement without obtaining the consent of any other party hereto if (i)
the disclosure is required by law and (ii) such party has first used its
reasonable efforts to consult with (but not to obtain the consent of) the other
parties about the form and substance of such disclosure.
9.3 Notices. All notices, consents, waivers, and other communications
-------
under this Agreement must be in writing and will be deemed to have been duly
given when (a) delivered by hand (with written confirmation of receipt), (b)
sent by telecopier
20
(with written confirmation of receipt), provided that a copy is mailed by
registered mail, return receipt requested, or (c) when received by the
addressee, if sent by a nationally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses and telecopier
numbers set forth below (or to such other addresses and telecopier numbers as a
party may designate by notice to the other parties):
if to Buyer:
Polyphase Instrument Acquisition Corporation
000 Xxxxxxxx Xxxxx
Xxxxx Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xx. Xxx X. Xxxxxxxxx
Facsimile No.: 000-000-0000
with a copy to:
Xxxxxx X. Xxxxx, Esquire
Xxxxxxxx Xxxxxxxxx Professional Corporation
Eleven Xxxx Xxxxxx, 00xx Xxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Facsimile No.: 000-000-0000
if to the Company:
Polyphase Instrument Co.
000 Xxxxxxxx Xxxxx
Xxxx Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xx. Xxx X. Xxxxxxxxx
Facsimile No.: 000-000-0000
if to Seller:
Polyphase Corporation
0000 Xxxxxxxx, Xxxxx X
Xxxxxxx, Xxxxx 00000
Attention: President
Facsimile: 000-000-0000
21
with a copy to:
Xxxxxx X. Xxxxx, Xx., Esquire
Law Offices of Xxxxxx X. Xxxxx, Xx.
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Facsimile No.: 000-000-0000
Any party may be given notice in accordance with this Section by any other party
at another address or directed to another person for receipt of notices, if such
party so designates such other person or address in writing in accordance with
this Section 9.3
9.4 Jurisdiction; Service of Process. Any action or proceeding seeking to
--------------------------------
enforce any provision of, or based on any right arising out of, this Agreement
may be brought against any of the parties in the state or federal courts located
in the State of Texas, County of Dallas, and each of the parties consents to the
jurisdiction of such courts (and of the appropriate appellate courts) in any
such action or proceeding and waives any objection to venue laid therein.
Process in any action or proceeding referred to in the preceding sentence may be
served on any party anywhere in the world.
9.5 Further Assurances. Each party agrees (a) to furnish upon request to
------------------
each other such further information, (b) to execute and deliver to each other
such other documents, and (c) to do such other acts and things, all as the other
party may reasonably request for the purpose of carrying out the intent of this
Agreement and the documents referred to in this Agreement.
9.6 Waiver. The rights and remedies of the parties to this Agreement are
------
cumulative and not alternative. Neither the failure nor any delay by any party
in exercising any right, power, or privilege under this Agreement or the
documents
22
referred to in this Agreement will operate as a waiver of such right, power, or
privilege, and no single or partial exercise of any such right, power, or
privilege will preclude any other or further exercise of such right, power, or
privilege or the exercise of any other right, power, or privilege. To the
maximum extent permitted by applicable law, (a) no claim or right arising out of
this Agreement or the documents referred to in this Agreement can be discharged
by one party, in whole or in part, by a waiver or renunciation of the claim or
right unless in writing signed by the other party; (b) no waiver that may be
given by a party will be applicable except in the specific instance for which it
is given; and (c) no notice to or demand on one party will be deemed to be a
waiver of any obligation of such party or of the right of the party giving such
notice or demand to take further action without notice or demand as provided in
this Agreement or the documents referred to in this Agreement.
9.7 Entire Agreement and Modification. This Agreement supersedes all
---------------------------------
prior agreements between the parties with respect to its subject matter and
constitutes (along with the documents referred to in this Agreement) a complete
and exclusive statement of the terms of the agreement between the parties with
respect to its subject matter. This Agreement may not be amended except by a
written agreement executed by the party to be charged with the amendment.
9.8 Assignments, Successors, and No Third-Party Rights. No party may
--------------------------------------------------
assign any of its rights under this Agreement without the prior consent of the
other parties; provided, that Buyer may assign this Agreement and its rights
--------
hereunder to the holders of the Senior Indebtedness without the consent of the
Seller. Subject to the preceding sentence, this Agreement will apply to, be
binding all respects upon, and
23
inure to the benefit of the successors and permitted assigns of the parties.
Except for Section 8 hereinabove, nothing expressed or referred to in this
Agreement will be construed to give any person other than the parties to this
Agreement any legal or equitable right, remedy, or claim under or with respect
to this Agreement or any provision of this Agreement. This Agreement and all of
its provisions and conditions are for the sole and exclusive benefit of the
parties to this Agreement and their permitted successors and assigns.
9.9 Severability. If any provision of this Agreement is held invalid or
------------
unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
9.10 Section Heading, Construction. The headings of Sections in this
-----------------------------
Agreement are provided for convenience only and will not affect its construction
or interpretation. All references to "Section" or "Sections" refer to the
corresponding Section or Sections of this Agreement. All words used in this
Agreement will be construed to be of such gender or number as the circumstances
required. Unless otherwise expressly provided the word "including" does not
limit the preceding words or terms.
9.11 Time of Essence. With regard to all dates and time periods set forth
---------------
or referred to in this Agreement, time is of the essence.
24
9.12 Governing Law. This Agreement will be governed by the laws of the
-------------
State of Texas without regard to conflicts of law principles, except with
respect to matters of law concerning the internal corporate affairs of any
corporate entity which is a party to or the subject of this Agreement, and as to
those matters the law of the jurisdiction under which the respective entity
derives its powers shall govern and in respect of such matters the parties
hereby submit to the authority of the courts of such jurisdiction.
9.13 Presumption Against Scrivener. Each party waives the presumption that
-----------------------------
this Agreement is presumed to be in favor of the party, which did not prepare
it, in case of a dispute as to interpretation.
9.14 Representation by Counsel. Each party acknowledges that it has had the
-------------------------
opportunity to be represented by separate independent counsel in the negotiation
of this Agreement, that any such respective attorneys were of its own choosing.
The parties warrant and represent that they have consulted with their counsel
concerning the execution, the meaning and the import of this Agreement, and each
has read this Agreement and fully understands the terms hereof as signified by
their signatures below, and are executing the same of their own free will for
the purposes and consideration herein expressed. The parties warrant and
represent that they have had sufficient time to consider whether to enter into
this Agreement and that they are relying solely on their own judgment and the
device of their own counsel in deciding to execute this Agreement.
9.15 Counterparts. This Agreement may be executed by the parties hereto in
------------
separate counterparts, each of which when so executed and delivered shall be an
25
original, but all such counterparts shall together constitute one and the same
instrument. Each counterpart may consist of a number of copies hereof each
signed by less than all, but together signed by all, of the parties hereto.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date first written above.
Seller
POLYPHASE CORPORATION
____________________________________
By: Xxxxx Xxxxx
Its: President
26
Buyer
POLYPHASE INSTRUMENT
ACQUISITION CORPORATION
____________________________________
By: Xxx X. Xxxxxxxxx
Its: President
The Company
POLYPHASE INSTRUMENT CO.
____________________________________
By: Xxx X. Xxxxxxxxx
Its: President
27
