5-20-04
Exhibit 2.8
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STOCK PURCHASE AGREEMENT
By and Among
GOLDEN SANDS INVESTMENT HOLDINGS LTD. as owner of INDIE STUDIOS AB
TIGER TELEMATICS, INC.,
And
GIZMONDO EUROPE LTD.
Dated May 20, 2004
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TABLE OF CONTENTS
Page
ARTICLE I PURCHASE OF ASSETS AND ASSUMPTION OF LIABILITIES.............1
1.1 Sale and Purchase of the Assets..................................1
1.2 Excluded Assets..................................................2
1.3 Assumed Liabilities..............................................2
1.4 Retained Liabilities.............................................2
ARTICLE II PURCHASE PRICE; CLOSING......................................2
2.1 Purchase Price...................................................2
2.2 Price Computation................................................3
2.3 Closing Time and Place...........................................3
2.4 Transfer of Title to Acquired Assets; Assumption of Liabilities..3
a Employees........................................................3
b Collection of Assets.............................................3
ARTICLE III REPRESENTATIONS AND WARRANTIES OF TARGET.....................3
3.1 Organization.....................................................4
3.2 Capitalization and Ownership.....................................4
3.3 Subsidiaries.....................................................4
3.4 Authorization and Enforceability.................................4
3.5 No Conflict; No Violation of Laws or Agreements..................4
3.6 Financial Statements.............................................5
3.7 No Undisclosed Liabilities.......................................5
3.8 Brokerage........................................................6
3.9 Title to Assets; Liens...........................................6
3.10 Trade Payables...................................................6
3.11 Accounts Receivable..............................................6
3.12 Contracts........................................................6
3.13 Employee Benefit Plans...........................................7
3.14 Labor Relations; Employees.......................................7
3.15 Regulatory Actions or Investigations.............................7
3.16 Copies of Documents..............................................7
3.17 Taxes............................................................7
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TABLE OF CONTENTS
(continued)
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3.18 Inventory........................................................8
3.19 Absence of Certain Changes.......................................8
3.20 Intellectual Property...........................................10
3.21 Trade Secrets and Customer Lists................................10
3.22 Litigation......................................................11
3.23 Compliance with Laws............................................11
3.24 Product Warranty................................................12
3.25 Product Liability...............................................12
3.26 Powers of Attorney..............................................12
3.27 Authorizations..................................................12
3.28 Transactions with Interested Persons............................12
3.29 Hazardous Materials; Environmental Compliance;
Disclosure of Environmental Information........................12
3.30 Backlog.........................................................13
3.31 Customers, Distributors and Independent Sales Representatives...13
3.32 Disclosure of Material Information and Potentially
Adverse Developments...........................................14
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS..............14
4.1 Organization....................................................14
4.2 Authorization and Enforceability................................14
4.3 No Conflict; No Violation of Laws or Agreements.................14
4.4 Consents........................................................15
4.5 Brokerage.......................................................15
ARTICLE V REPRESENTATION AND WARRANTIES OF BUYER
15
5.1 Organization....................................................15
5.2 Capitalization and Ownership....................................15
5.3 Subsidiaries....................................................15
5.4 Authorization and Enforceability................................16
5.5 No Conflict; No Violation of Laws or Agreements.................16
5.6 Consents........................................................16
5.7 Financial Statements............................................16
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(continued)
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5.8 No Undisclosed Liabilities......................................17
5.9 Litigation and Claims...........................................17
5.10 Brokers.........................................................17
5.11 Truth and Accuracy of Disclosures...............................17
ARTICLE VI PRE-CLOSING COVENANTS OF TARGET AND SELLER..................17
6.1 Conduct of Business.............................................17
6.2 Authorization from Others.......................................18
6.3 Breach of Representations and Warranties........................18
6.4 Consummation of Agreement.......................................19
6.5 Confidentiality.................................................19
6.6 No Solicitation of Other Offers.................................19
6.7 Access, Information, and Documents..............................19
ARTICLE VII PRE-CLOSING COVENANTS OF BUYER..............................19
7.1 Consummation of Agreement.......................................19
7.2 Confidentiality.................................................20
7.3 Authorization from Others.......................................20
7.4 Breach of Representations and Warranties........................20
ARTICLE VIII CONDITIONS TO CLOSING.......................................20
8.1 Conditions Precedent to Obligations of Buyer....................20
8.2 Conditions Precedent to the Obligations of Target...............21
ARTICLE IX TERMINATION.................................................21
9.1 Termination of Agreement.........................................21
9.2 Effect of Termination............................................22
ARTICLE X CERTAIN ADDITIONAL COVENANTS................................22
10.1 Costs, Expenses, and Transfer Taxes..............................22
10.2 .................................................................22
ARTICLE XI INDEMNIFICATION.............................................22
11.1 Materiality; Survival............................................22
11.2 Indemnification Rights of Buyer..................................22
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TABLE OF CONTENTS
(continued)
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11.3 Indemnification Rights of Seller ................................24
11.4 Indemnification Payments and Dispute Resolution..................24
ARTICLE XII MISCELLANEOUS...............................................25
12.1 Notices..........................................................25
12.2 Successors and Assigns...........................................26
12.3 Construction.....................................................26
12.4 Governing Law....................................................24
12.5 Headings.........................................................27
12.6 Counterparts.....................................................27
12.7 Further Assurances...............................................27
12.8 Course of Dealing................................................27
12.9 Severability.....................................................27
12.10 Entire Agreement.................................................27
Exhibit Definitions.......................................................28
Exhibits and schedules to purchase agreement..............................
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SHARE PURCHASE AGREEMENT
This SHARE PURCHASE AGREEMENT (the "Agreement"), is made and
entered into May 20, 2004, by and among TIGER TELEMATICS, INC., a Delaware
corporation ("Buyer's parent "), GIZMONDO EUROPE, LTD. a United Kingdom
corporation ("Buyer "), and Golden Sands Investment Holdings, Ltd. ("Seller")
who owns the shares of Indie Studios AB("Target").
BACKGROUND:
Buyer is a UK corporation engaged in the business of
developing, manufacturing and marketing automotive telematics
products (the "Business") in Europe and a new handheld
wireless multi entertainment device that focuses on gaming. .
Buyer's parent is a U.S. publicly traded company under the
symbol TIGR that wants to see the transaction take place and is down streaming
shares to the subsidiary to implement the transaction.
Target is the wholly owned by Golden Sands Investment Holdings
Ltd. and is in the business of developing games for consoles and other mediums
of use.
Target is engaged in gaming development arena.
Buyer desires to purchase and Seller desires to sale the
common stock of Target on the terms and conditions of this Agreement. Buyer
specifically wants the game Colors and other games currently in development and
all related intellectual properties associated with the same whether capitalized
on the balance sheet or not. All capitalized (and as noted herein,
uncapitalized) words or expressions used in this Agreement (including the
Schedules and Exhibits annexed hereto) not otherwise defined herein have the
meanings specified in Exhibit A hereto (such meanings to be equally applicable
to both the singular and plural forms of the terms defined). This Agreement and
the agreements and instruments to be executed and delivered at Closing are
referred to collectively herein as the "Transaction Agreements" and the
transactions contemplated by the Transaction Agreements are referred to
collectively herein as the "Transactions".
In consideration of the foregoing, the mutual representations,
warranties and covenants set forth in this Agreement, and for the good and
valuable consideration, the sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
PURCHASE OF SHARES, ASSETS AND ASSUMPTION OF LIABILITIES
1.1 Sale and Purchase of the Assets. Upon the terms and subject to
the conditions contained in this Agreement, at the Closing, Target shall sell,
transfer, assign, convey and deliver to Buyer, and Buyer shall purchase, acquire
and accept, all of Target's right, title and interest in and to, the shares of
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common stock of Target as set forth on the balance sheet of Target at the
Closing Date (the "Closing Balance Sheet") and any and all contracts (the
"Assumed Contracts") to which Target is a party (collectively, the "Acquired
Assets"). For sake of clarity, a true, correct and complete listing of the
assets of Target as of the date of this Agreement, that would constitute all of
the Acquired Assets if the Closing Date is the same date as the date hereof, is
set forth on Schedule I hereto.
1.2 Excluded Assets. The Acquired Assets shall exclude only those
assets that are not reflected on the Closing Balance Sheet or Schedule I or that
do not consist of Assumed Contracts (collectively, the "Excluded Assets"), a
true, correct and complete listing of which as of the date of this Agreement is
set forth on Schedule II hereto.
1.3 Assumed Liabilities. In addition to acquiring all of the
outstanding common stock of the seller, Buyer shall assume and discharge of all
the liabilities of Target set forth on the Closing Balance Sheet, including
without limitation, and liabilities arising in respect of the Assumed Contracts
(collectively, the "Assumed Liabilities"). A true, correct and complete listing
of all liabilities of Target to be assumed by Buyer, that would constitute all
of the Assumed Liabilities if the Closing Date is the same date as the date
hereof, and their amounts as of the date of this Agreement is set forth on
Schedule III hereto.
1.4 Retained Liabilities. Except for the Assumed Liabilities,
Buyer shall not assume, become liable for or obligated for any of Target's
obligations, liabilities or indebtedness in respect of the Excluded Assets (all
such liabilities and obligations of Target, other than the Assumed Liabilities,
the "Retained Executed Liabilities").
ARTICLE II
PURCHASE PRICE; CLOSING
2.1 Purchase Price. 25 million restricted commons shares of the
Buyers parent to be issued within 5 days of closing. Closing is to be set by
mutual agreement of the parties but prior to August 30, 2004. An additional 7.5
million restricted shares of the Buyers parent will be issued to seller upon the
competitions by Target of the Colors game and delivery to the buyer. A further
7.5 million restricted shares of the buyers parent will be issued upon
completion of a to be announced racing game with Xxxxxx Button and delivery to
the parent.
2.2 Price Computation. The price per share as of the date of the
contract is agreed to be $.31 per share which is the closing price as of the
date of this contract. All shares are pre-splits or consolidations and will be
adjusted accordingly.
2.3 Closing Time and Place. The closing of the transactions
contemplated by this Agreement (the "Closing") will take place at the offices of
Gizmondo Europe, Ltd., as soon as practicable following the date hereof on such
date as Target and Buyer shall agree. The date on which the Closing occurs is
hereinafter referred to as the "Closing Date."
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2.4 Transfer of Title to Acquired Assets; Assumption of
Liabilities. The sale, assignment, conveyance, transfer, and delivery by Target
of the acquired shares and associated Acquired Assets shall be made at the
Closing by appropriate bills of sale, assignments, endorsements, and such other
appropriate instruments of transfer sufficient to vest in Buyer as of the
Closing Date title to the Acquired Assets that are owned, and a valid and
assignable leasehold interest in the Acquired Assets that are leased by Target.
Such instruments of assignment, conveyance, and transfer shall include without
limitation a xxxx of sale transferring title to tangible assets and an
assignment transferring title to intangible assets. Risk of loss of the Acquired
Assets shall pass from Target to Buyer at Closing. Buyer will execute and
deliver to Target at the Closing an Assumption Agreement with respect to the
Assumed Liabilities and an Assignment and Assumption of Lease Agreement with
respect to each of the real property leases to be assumed.
(a) Employees. Attached hereto as Schedule 5 is a list of
all employees of Target that are expected to be employed by Buyer post-closing
(the "Retained Employees"). Schedule 5 sets forth the amount of all expenses,
including without limitation accrued vacation, unpaid expense reimbursement and
accrued salary (collectively, the "Employment Expenses") currently owed to the
Retained Employees. Target shall update Schedule 55 at Closing to provide
definitive lists of Retained Employees and Employment Expenses.
(b) Collection of Assets. Subsequent to the Closing,
Buyer shall have the right and authority to collect all receivables and other
items transferred and assigned to it by Target hereunder and to endorse with the
name of Target any checks received on account of such receivables or other
items, and Target agrees that it will promptly transfer or deliver to Buyer from
time to time, any cash or other property that Target may receive with respect to
any claims, contracts, licenses, leases, commitments, sales orders, purchase
orders, receivables of any character included in the Acquired Assets or any
other items included in the Acquired Assets.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF TARGET
Target hereby represents and warrants to Buyer, as of the date
hereof and as of the Closing Date (except as such representations and warranties
may be amended, modified or limited by any of the matters disclosed on any
portion of the List of Schedule (whether specifically identified in this Article
III or not) attached hereto as List of Schedules hereto (the "List of
Schedule"), as follows:
3.1 Organization. Target is a corporation duly organized, validly
existing, and in good standing under the laws of Sweden certified by the Company
House and of Target's Bylaws, as amended to date, certified by Target's
Director, are complete and correct and no amendments thereto have been filed or
are pending. Target is and has been at all times in compliance with its Articles
and Bylaws. Target is duly qualified or licensed to conduct business as a
foreign corporation in and is in good standing in each jurisdiction in which the
nature of business as conducted by Target or the character and nature of any of
the Acquired Assets make such qualification necessary, all of which
jurisdictions are listed on the List of Schedule.
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3.2 Capitalization and Ownership. The authorized capital stock of
Target consists of 1,000 shares of common stock, 100 crown par value, of which
1,000 shares of common stock are issued and outstanding, giving the Target a
share capital of 100,000 crown. The organization number of Target is SE 01-
556655-1056 in Sweden. All of such issued and outstanding shares of capital
stock of Target are owned beneficially and of record by Golden Sands Investment
Holdings, Ltd. , Inc., have been duly authorized, validly issued, are fully paid
and nonassessable, were not issued in violation of the terms of any agreement or
other understanding binding upon Target or any other Person and were issued in
compliance with all applicable federal and state securities or "blue-sky" laws
and regulations. Except as set forth on the List of Schedule, there are no
outstanding securities, options, warrants, rights, agreements, calls,
subscription commitments, demands, or understandings of any character
whatsoever, fixed or contingent, that directly or indirectly (i) call for the
issuance, sale or other disposition of any capital stock of Target and there are
no securities convertible into or exchangeable for the stock of Target or (ii)
obligate Target to grant, offer or enter into any of the foregoing or (iii)
relate to the voting or control of any capital stock of Target. No person has
any right to require Target to register any securities of Target under the
Securities Act of 1933.
3.3 Subsidiaries. Target has no interests, direct or indirect, in
any other Person.
3.4 Authorization and Enforceability. Seller and Target has all
requisite corporate power and authority to execute and deliver the Transaction
Agreements and to perform its obligations thereunder. Target's execution and
delivery of, and the performance of its obligations under, the Transaction
Agreements have been duly and validly authorized by all necessary corporate
action. This Agreement has been, and upon their execution and delivery by
Target, the other Transaction Agreements will be, duly executed and delivered on
behalf of Target and constitutes and will constitute the legal, valid, and
binding obligations of Target, enforceable against Target in accordance with
their respective terms subject to general equitable principles and except as the
enforceability of the Transaction Agreements may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws of
general application relating to creditors' rights.
3.5 No Conflict; No Violation of Laws or Agreements. The execution
and delivery of this Agreement do not, the execution and delivery of the other
Transaction Agreements will not, and the consummation of the Transactions and
the compliance with the terms, conditions, and provisions of the Transaction
Agreements by Target will not:
(a) contravene any provision of Target's Charter or
Bylaws;
(b) conflict with, constitute or result in any breach,
default or violation of (or an event which might, with or without the passage of
time or the giving of notice or both, constitute or result in a breach, default
or violation of) (i) any of the terms, conditions, or provisions of any
indenture, mortgage, loan, credit agreement, or any other instrument, contract,
agreement or commitment to which Target is a party, or by which any Target, any
of Acquired Assets may be bound or affected, (ii) any judgment or order of any
Governmental Authority, or (iii) any law, rule or regulation;
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(c) result in the creation or imposition of any Lien upon
any Acquired Assets or give to others any interests or rights therein;
(d) result in the acceleration of any liability or
obligation of Target (or give others the right to cause such acceleration); or
(e) result in the reduction of, termination of or loss of
any right (or give others the right to cause such a reduction, termination or
loss) under any Assumed Contract
No consent or waiver by, approval of, or designation, declaration or filing
with, any Person, governmental authority or entity (or any department, agency,
or political subdivision thereof) is required in connection with the execution,
delivery and performance by Target of the Transaction Agreements.
3.6 Financial Statements.
(a) Set forth on the List of Schedule is (i) a business
plan of the target and a true and correct copy of the unaudited consolidated
balance sheet of Target as of March 31, 2004 (the "Target Financial Statement
Date") and the related consolidated statements of income and cash flows for the
fiscal year then ended (collectively, the "Target Year-End Financial
Statements"), and (ii) the unaudited consolidated balance sheet of Target and
related statement of income and cash flows as of, and for the month period ended
March 31 30, 2004 (the "Target Interim Statements" and, together with the Target
Year-End Financial Statements, the "Target Financial Statements").
(b) The Target Business Plan and Financial Statements:
(i) were prepared from and are consistent with the Books and Records of Target,
which Books and Records have been maintained in accordance with all legal and
accounting requirements and completely and accurately reflect all financial
transactions of Target, (ii) were prepared in accordance with GAAP consistently
applied; and (iii) are correct and complete and present fairly the financial
condition of Target and the results of its operations for the periods covered
by, and as at the dates of, each of the Target Financial Statements except that
the Target Interim Statements omit footnote disclosures and do not reflect year
end adjustments which will not, in the aggregate, be material. The income
statements included in the Target Financial Statements do not contain any
material items of special or non-recurring income or other income not earned in
the ordinary course of business except as expressly specified therein.
3.7 No Undisclosed Liabilities. Except as set forth on the List of
Schedule, Target does not have any material liability or obligation of any
nature, whether due or to become due, absolute, contingent, or otherwise,
whether direct or indirect, except (a) to the extent reflected as a liability on
the Target Financial Statements, or (b) material liabilities incurred in the
ordinary course of business (and not in violation of this Agreement) since the
Target Financial Statement Date and fully reflected as liabilities on the
appropriate books of account (and which will be fully reflected as liabilities
on the Closing Balance Sheet).
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3.8 Brokerage. Neither Target nor anyone acting on behalf of
Target has engaged, retained or incurred any liability to any broker, investment
banker, finder or agent, made any agreement or taken any other action which
might cause anyone to become entitled to a broker's fee or commission or agreed
to pay any brokerage fees, commissions, finder's fees or other fees with respect
to or as a result of the Transactions.
3.9 Title to Assets; Liens.
Target has good and marketable title to the Acquired Assets
that are owned and a valid and assignable (unless otherwise disclosed on the
List of Schedule) leasehold interest in the Acquired Assets that are leased. The
Acquired Assets are free and clear of all mortgages, liens, security interests,
pledges, charges and other encumbrances, except for liens for current taxes not
yet due and payable or being contested in good faith by appropriate proceedings,
and such imperfections of title, easements and encumbrances as do not materially
detract from the value of the properties subject thereto or affected thereby or
otherwise do not materially interfere with their present or future use in a
manner consistent with present practices or materially impair the operation of
the Business. The Acquired Assets constitute all of the material assets used to
conduct the Business.
3.10 Trade Payables. All of the trade payables have been incurred
in the ordinary course of the Business and is set forth on the List of Schedule,
which also includes a trade payable aging report.
3.11 Accounts Receivable. A complete and accurate listing of all
accounts receivable of Target included in the Acquired Assets as of the date
hereof accurately reflecting the aging thereof is set forth on the List of
Schedule. All such accounts receivable are valid and enforceable claims, are
subject to no set off or counterclaim and are fully collectible in the ordinary
course of business.
3.12 Contracts. Except for contracts, commitments or agreements
that (i) are described List of Schedule in the List of Schedule hereto or (ii)
relate exclusively to the Excluded Assets and are not to be assigned to or
assumed by Buyer, Target is not a party to or subject to any contract,
commitment or agreement that is material to the operation of the Business.
Copies of all contracts, commitments, plans, agreements or licenses described in
List of Schedule in the List of Schedule have been provided to Buyer or its
counsel prior to the execution of this Agreement and are true, correct and
complete, and have not been subject to any amendment, extension or other
modification as of the date hereof. Each contract, commitment, plan agreement
and license described List of Schedule in the List of Schedule is binding and
enforceable in accordance with its terms and is in full force and effect without
any default (other than payment defaults as noted List of Schedule in the List
of Schedule) thereunder by Target or, to the knowledge of Target, by any other
party thereto (a "default" being defined for purposes hereof as an actual
default or any set of facts that would, upon receipt of notice or passage of
time, constitute a default), and except as otherwise set forth List of Schedule
in the List of Schedule such contracts, commitments and agreements are
assignable by Target
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3.13 Employee Benefit Plans. All employee benefit plans, as that
term is defined in Section 3(3) of the Employee Retirement Income Security Act
of 1974, as amended, ("ERISA"), currently maintained by Target or to which
Target has an obligation to contribute (the "Employee Benefit Plans") are
described List of Schedule in the List of Schedule. No event has occurred nor
has there been any omission which would result in violation of any laws, rulings
or regulations applicable to any Employee Benefit Plan. There are no claims
pending or, to the knowledge of Target, threatened with respect to any Employee
Benefit Plan, other than claims for benefits by employees, beneficiaries or
dependents arising in the normal course of the operation of any such plan. All
contributions (including all employer contributions and employee salary
reduction contributions) that are due have been paid to each such Employee
Benefit Plan. All premiums or other payments for all periods ending on or before
the Closing Date have been paid with respect to each such Employee Benefit Plan.
3.14 Labor Relations; Employees. Target employs approximately 10
employees and generally enjoys a good employer-employee relationship. Except as
set forth on the List of Schedule, Target is not delinquent in payments to any
of its employees for any wages, salaries, commissions, bonuses or other direct
compensation for any services performed for it to the date hereof or amounts
required to be reimbursed to such employees. Upon termination of the employment
of Target's employees, neither Target nor Buyer will by reason of anything done
prior to the Closing be liable to any of such employees for so-called "severance
pay" or any other payments. Target has not implemented any written or oral
policy that would contravene or contradict the "employment at will" policy.
Target is in compliance with all applicable laws and regulations respecting
labor, employment, fair employment practices, terms and conditions of
employment, and wages and hours.
3.15 Regulatory Actions or Investigations. Target is not now a
party to, and has not been apprised or notified of, any regulatory investigation
or proceeding contemplated, pending or initiated by any federal or state agency
or governmental unit.
3.16 Copies of Documents. Target has made available for inspection
and copying by Buyer and its counsel true and correct copies of all documents
referred to in List of Schedule.
3.17 Taxes.
(a) Definitions. As used herein, "IRC" means the Internal
Revenue Code of 1986, as amended and interpreted by treasury regulations; "Tax
Return" means any return, declaration, report, claim for refund, or information
return or statement relating to Taxes, including any schedule or attachment
thereto, and including any amendment thereof; and "Taxes" means any federal,
state, local, or foreign income, gross receipts, license, payroll, employment,
excise, severance, stamp, occupation, premium, windfall profits, environmental,
customs duties, capital stock, franchise, profits, withholding, social security
(or similar), unemployment, disability, real property, personal property, sales,
use, transfer, registration, value added, alternative or add-on minimum,
estimated, or other tax of any kind whatsoever, including any interest, penalty,
or addition thereto, whether disputed or not.
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(b) Returns and Payments. Target has filed all Tax
Returns that it was required to file. All such Tax Returns are correct and
complete in all respects. All Taxes owed by Target (whether or not shown on any
Tax Return) have been paid. Target currently is not the beneficiary of any
extension of time within which to file any Tax Return. No claim has ever been
made by an authority in a jurisdiction where Target does not file Tax Returns
that it is or may be subject to taxation by that jurisdiction. There are no
liens, encumbrances, or charges against any of the assets of Target that arose
in connection with any failure (or alleged failure) to pay any Tax.
(c) Withholding Taxes. Target has withheld and paid all
Taxes required to have been withheld and paid in connection with amounts paid or
owing to any employee, independent contractor, creditor, shareholder, or other
third party.
(d) Tax Liabilities. Neither Target, nor any of Target's
officers, directors, or employees responsible for Tax matters has knowledge of
any facts that would lead them to expect any authority to assess any additional
Taxes for any period for which Tax Returns have been filed. There is no dispute
or claim concerning any Tax liability of Target either claimed or raised by any
authority in writing or as to which any of target, Stockholder or any of
Target's, officers, directors, or employees responsible for Tax matters has
knowledge based upon personal contact with any agent of such authority. The List
of Schedule lists all Tax Returns filed for taxable periods ended on or after
December 31, 2000, indicates those Tax Returns that have been audited and
indicates those Tax Returns that currently are the subject of an audit. Target
has delivered to the Buyer correct and complete copies of all Tax Returns,
examination reports, closing agreements and statements of deficiencies assessed
against or agreed to by Target since December 31, 2003. Target has disclosed on
its federal income Tax Returns all positions taken therein that could give rise
to a substantial understatement of federal income Tax within the meaning of IRC
Section 6662.
(e) Statute of Limitations. Target has not waived any
statute of limitations in respect of Taxes or agreed to any extension of time
with respect to a Tax assessment or deficiency.
(f) Affiliated Group. Target has not been a member of an
affiliated group filing a consolidated federal income Tax Return (other than a
group the common parent of which was Target) and has not incurred any liability
for the Taxes of any other person or entity (other than Target) under Treasury
Regulations Section 1.1502-6 (or similar provision of state, local, or foreign
law), as a transferee or successor, by contract, or otherwise. Target is not a
party to any Tax allocation or sharing agreement.
3.18 Inventory. A complete and accurate listing of the Inventory
and the pricing thereof is set forth List of Schedule in the List of Schedule.
3.19 Absence of Certain Changes. Since the Target Financial
Statement Date and except as set forth on the List of Schedule there has not
been:
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(a) any operation of the Business out of the ordinary
course of business or any change in the financial condition, properties, assets,
liabilities, business, prospects or operations of the Business that changes, by
itself or in conjunction with all other such changes, or has been or is likely
to materially adversely affect, the Business;
(b) any purchase, sale, license or other disposition, or
any agreement or other arrangement for the purchase, sale, license or other
disposition, of any part of the Target's properties or assets (including any
patents, trademarks and copyrights) included in the Acquired Assets, other than
purchases for and sales from inventory in the ordinary course of business;
(c) any payment or discharge of a lien or liability of
Target that is not shown on the Target Financial Statements or incurred in the
ordinary course of business thereafter;
(d) any obligation or liability incurred by Target to any
bank, to any officer, director, employee or stockholder of Target, or, other
than in the ordinary course of business, to any other individual; or any loans
or advances made by Target to any officer, director, employee or stockholder of
Target, except for normal compensation and expense allowances payable to
officers or employees;
(e) any capital expenditure by Target in excess of
$10,000 for any one item included in the Assets;
(f) any contracts relating to the Business, other than in
the ordinary course of business of the Business, entered into by Target that
obligate Target for more than $10,000 with respect to any one contract or more
than $25,000 with respect to the aggregate of all such contracts;
(g) any change in the accounting methods or practices
followed by Target or any change in depreciation or amortization policies or
rates theretofore adopted;
(h) any change in the manner in which inventory of Target
used in the Business is marketed or any increase in inventory levels in excess
of historical levels for comparable periods;
(i) any acceleration, termination, modification or
cancellation of any agreement, contract, lease or license relating to the
Business (or series of related agreements, contracts, leases or licenses)
involving more than $10,000 to which Target is a party or by which it is bound;
(j) any issuance of any evidence of indebtedness or
creation, incurrence, assumption or guaranty of any indebtedness for borrowed
money or capital lease obligations involving in excess of $10,000 singly or
$25,000 in the aggregate;
(k) any delay or postponement of payment of any accounts
payable or other liabilities relating to the Business outside the ordinary
course of business;
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(l) any change in the employment terms or
employment-related benefits for any independent sales representative or employee
employed in the Business outside the ordinary course of business; or
(m) any agreement or understanding, whether in writing or
otherwise, for Target to take any of the actions specified in paragraphs (a)
through (l) above.
3.20 Intellectual Property.
(a) All domestic and foreign patents, patent
applications, copyrighted works, copyright applications and registrations, trade
secrets, inventions, developments, customer lists, manufacturing and secret
processes, hardware designs, programming processes, software and other
information, know-how, trade names, trademarks and service marks, registered
trademarks and trademark applications, and registered service marks and service
xxxx applications (if any) that are used by, owned by or licensed to Target and
that relate to the Business (collectively, the "Intellectual Property") are
listed on the List of Schedule, which indicates, with respect to each, the
nature of Target's interest therein and the expiration date thereof or the date
on which the Target's interest therein terminates. Registered copyrights,
patents, trademarks and service marks that are owned by or licensed to Target
and that relate to the Business have been duly registered in, filed in or issued
by, as the case may be, the United States Patent and Trademark Office, the
United States Register of Copyrights or the corresponding offices of other
countries identified on the List of Schedule, and have been properly maintained
and renewed in accordance with all applicable provisions of law and
administrative regulations in the United States and each such country. The
Intellectual Property is the only intellectual property used in or otherwise
necessary to operate the Business as currently conducted or proposed to be
conducted.
(b) Except as set forth on the List of Schedule, use of
the Intellectual Property and any other intellectual property used by Target in
the Business does not require the consent of any other person and the same are
freely transferable (except as otherwise provided by law) and are owned
exclusively by Target, free and clear of any attachments, liens, encumbrances or
adverse claims, and neither its present or contemplated activities or products
infringe, misappropriate, dilute, impair or constitute unfair competition with
respect to any patent, trade name, trademark, copyright or other proprietary
rights of others.
(c) No other person has an interest in or right or
license to use, or the right to license others under, the Intellectual Property,
other than the rights of licensors and their licensees in the licensed
intellectual property identified on the List of Schedule. There are no claims or
demands of any other person pertaining thereto and no proceedings have been
instituted, are pending or threatened that challenge the rights of Target in
respect thereof and Target does not know of any fact that could be the basis of
any such claim. There is no infringement of any of the Intellectual Property by
others nor is any of the Intellectual Property subject to any outstanding order,
decree, judgment, stipulation, settlement, lien, charge, encumbrance or
attachment. No claim or demand has been made and no proceeding has been filed or
is threatened to be filed charging Target with infringement of any patent, trade
name, trademark, service xxxx or copyright and Target does not know of any facts
which could be the basis of any such claims. Except as set forth on the List of
Schedule, there are no royalties, honoraria, fees or other payments payable by
Target to any person with respect to any of the Intellectual Property.
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3.21 Trade Secrets and Customer Lists. Except as set forth on the
List of Schedule, target owns or has the right to use, free and clear of any
claims or rights of others, all trade secrets, inventions, developments,
customer lists, manufacturing and secret processes, hardware designs,
programming processes, software and other information, and know-how (if any)
required for or used in the manufacture or marketing of all products formerly or
presently sold, manufactured, licensed, under development or produced by Target
in the Business, including products licensed from others. There are no payments
that are required to be made by Target for the use of such trade secrets,
inventions, developments, customer lists, copyrighted materials, manufacturing
and secret processes and know-how. Target is not using or in any way making any
unlawful or wrongful use of any confidential information, copyrighted materials,
know-how or trade secrets of any third party, including without limitation any
former employer of any present or past employee of Target or of any of Target's
predecessors. Target is not a party to any non-competition or confidentiality
agreement related to the Business with any party other than Buyer.
3.22 Litigation. Except as set forth on the List of Schedule, there
are no suits, actions or administrative, arbitration or other proceedings or
governmental investigations pending or, to the knowledge of Target, threatened
against or relating to Target, the Acquired Assets or the Business. Target is
not otherwise engaged as a party in any suit, action or administrative,
arbitration or other proceeding. Target has not entered into or been subject to
any consent decree, compliance order, or administrative order with respect to
any property owned, operated, leased, or used by Target. Target has not received
any request for information, notice, demand letter, administrative inquiry, or
formal or informal complaint or claim with respect to any property owned,
operated, leased or used by Target or any facilities or operations thereon.
Target has not been named by the U.S. Environmental Protection Agency or a state
environmental agency as a potentially responsible party (or similar designation
under applicable state law) in connection with any site at which hazardous
substances, hazardous materials, toxic substances, oil, or petroleum products
have been released or are threatened to be released. There are no existing or,
to the knowledge of Target, threatened product liability, warranty or other
similar claims, or any facts upon which a claim of such nature could be based,
against Target for services or products that are defective or fail to meet any
service or product warranties. Target is not aware of any facts providing a
basis for any matter addressed in this Section 3.22 or has any reason to believe
that any such matters will be forthcoming.
3.23 Compliance with Laws. Target is not in violation of any laws,
rules or regulations that apply to the conduct of the Business or any facilities
or property owned, leased, operated or used by Target. There has never been any
citation, fine or penalty imposed, asserted or to the knowledge of Target,
threatened against Target under any foreign, federal, state, local or other law
or regulation relating to employment, immigration, occupational safety, zoning
or environmental matters and Target is not aware of any circumstances,
occurrences, or conditions likely to result in the imposition or assertion of
such a citation, fine or penalty, nor has Target received any notice to the
effect that it is in violation of any such laws or regulations.
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3.24 Product Warranty. Each product manufactured, sold, leased, or
delivered by Target has conformed with all applicable contractual commitments
and all express and implied warranties. Target has no liability (and there is no
basis for any present or future action, suit, proceeding, hearing,
investigation, charge, complaint, claim, or demand which may give rise to any
liability) for replacement or repair thereof or other damages in connection
therewith, subject only to the reserve for product warranty claims set forth in
the Target Financial Statements as adjusted for the passage of time through the
Closing Date in accordance with the past custom and practice of Target. No
product manufactured, sold, leased, or delivered by Target is subject to any
guaranty, warranty, or other indemnity beyond the applicable standard terms and
conditions of sale or lease, all of which have been provided to Buyer by Target.
3.25 Product Liability. Target has no liability (and to the
knowledge of Target there is no basis for any present or future action, suit,
proceeding, hearing, investigation, charge, complaint, claim, or demand against
it giving rise to any liability) arising out of any injury to individuals or
property as a result of the ownership, possession, or use of any product
manufactured, sold, leased, or delivered by Target ("Product Liability").
3.26 Powers of Attorney. Target has not entered into any
outstanding power of attorney.
3.27 Authorizations. Target has obtained and is in compliance with
all Authorizations and no proceeding is pending or, to the knowledge of Target,
threatened in which any Person or governmental authority is seeking to revoke or
deny the renewal of any Authorization. All Authorizations relating to the
Business are listed on the List of Schedule. Each Authorization is in full force
and effect without any default thereunder by Target (a "default" being defined
for purposes hereof as an actual default or any set of facts which would, upon
receipt of notice or passage of time, constitute a default), and can be assigned
by Target to Buyer hereunder such that it will remain in full force and effect
after giving effect to the Transactions. Target has not received any notice of
any claim or charge that Target has breached any Authorization.
3.28 Transactions with Interested Persons. Except as set forth on
the List of Schedule, neither any Stockholder nor any officer, supervisory
employee or director of Target nor any of their respective spouses or children,
owns, directly or indirectly, on an individual or joint basis, any material
interest in, or serves as an officer or director or in another similar capacity
of, any customer, competitor or supplier of Target, or any organization that has
a material contract or arrangement with Target, with respect to the Related
Agreements.
3.29 Hazardous Materials; Environmental Compliance; Disclosure of
Environmental Information.
(a) Target has never generated, used, stored or handled
any Hazardous Materials (as hereinafter defined) nor has it treated, stored,
disposed of, spilled or released any Hazardous Materials at any site presently
or formerly owned, leased, operated or used by target or shipped any Hazardous
Materials for treatment, storage or disposal at any other site or facilities. To
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the knowledge of Target, no other person has ever generated, used, handled,
stored or disposed of any Hazardous Materials at any site presently or formerly
owned, leased, operated or used by Target, nor has there been or is there
threatened any release of any Hazardous Materials on or at any such site. Target
does not presently own or lease, nor has it previously owned or leased, any site
on which underground storage tanks are or were located. No lien has been imposed
by any governmental agency on any property, facility, machinery, or equipment
owned, operated, leased or used by Target in connection with the presence of any
Hazardous Materials. For purposes of this Section 3.29, "Hazardous Materials"
shall mean and include ethylene oxide, any hazardous waste, hazardous material,
hazardous substance, petroleum product, oil, toxic substance or pollutant as
defined in or pursuant to the Resource Conservation and Recovery Act, as
amended, the Comprehensive Environmental Response, Compensation and Liability
Act, as amended, the Hazardous Materials Transportation Act or any other
foreign, federal, state or local law, regulation, ordinance, rule or by-law,
whether existing as of the date hereof, previously enforced or subsequently
enacted pertaining to environmental or health and safety matters.
(b) To the knowledge of Target, Target has no liability
under nor has it ever violated any Environmental Law (as hereinafter defined)
with respect to any property owned, operated, leased, or used by Target and any
facilities and operations thereon. In addition, Target, any property owned,
operated, leased, or used by Target, and any facilities and operations thereon
are presently in compliance with all applicable Environmental Laws. Target has
not entered into or been subject to any consent decree, compliance order or
administrative order with respect to any environmental or health and safety
matter or received any request for information, notice, demand letter,
administrative inquiry, or formal or informal complaint or claim with respect to
any environmental or health and safety matter or any enforcement of any
Environmental Law; and Target has no reason to believe that any of the above
will be forthcoming. For purposes of this Section 3.29, "Environmental Law"
shall mean any environmental or health and safety-related law, regulation, rule,
ordinance, or by-law at the federal, foreign, state, or local level.
(c) Target has provided to the Buyer copies of all
documents, records, and information available to Target concerning any
environmental or health and safety matter relevant to Target, whether generated
by Target or others, including, without limitation, environmental audits,
environmental risk assessments, site assessments, documentation regarding
off-site disposal of Hazardous Materials (as defined above), spill control
plans, and reports, correspondence, permits, licenses, approvals, consents, or
other authorizations issued by any environmental agency.
3.30 Backlog. As of the date hereof, Target has a backlog of firm
orders for the sale of services of the Business, for which revenues have not
been recognized by Target, as set forth on the List of Schedule.
3.31 Customers, Distributors and Independent Sales Representatives.
The List of Schedule sets forth the names and addresses of all customers to
which, and independent sales representatives and distributors through which,
Target has sold or distributed in excess of $25,000 of its products or services
in the Business during any of the last two fiscal years of Target. The List of
Schedule also indicates all customers, distributors and independent sales
representatives with which Target has entered into a contract or agreement.
During such period and through the date hereof, no such customer, distributor or
independent sales representative has canceled or otherwise terminated its
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relationship with Target or decreased materially its usage or purchase of the
products or services of Target, except for changes in customer relationships
that have occurred in the ordinary course of business the aggregate value of
which has not exceeded $10,000. To the knowledge of Target, no such customer,
independent sales representative or distributor has any plan or intention to
terminate, cancel or otherwise modify its relationship with Target in a manner
that would be adverse to Target.
3.32 Disclosure of Material Information and Potentially Adverse
Developments. No disclosure made to Buyer or contained herein, including the
List of Schedule, about Target's business, operations, financial condition,
results of operations or prospects (other than any statements relating solely to
the business, operations, financial condition, results of operations or
prospects of Seller) contains or will contain any untrue statement of a material
fact, or omits or will omit to state a material fact necessary to make the
statements of facts contained therein not misleading or necessary to provide
Buyer with adequate and complete information as to Target's business,
operations, financial condition, results of operations or prospects.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLERS
Each Golden Sands Investment Holdings Ltd. and Indie Studios
AB., severally and not jointly, hereby represents and warrants as to itself to
Buyer, as of the date hereof and as of the Closing Date, as follows:
4.1 Organization. Such Ltd. . And AB is a corporation duly
organized, validly existing, and in good standing under the laws of the
jurisdiction of its incorporation.
4.2 Authorization and Enforceability. Such Ltd.. And AB. has all
requisite corporate power and authority to execute and deliver this Agreement
and to perform its obligations hereunder. Such Ltd. and AB. execution and
delivery of, and the performance of its obligations under, this Agreement have
been duly and validly authorized by all necessary corporate action. This
Agreement has been duly executed and delivered on behalf of such Ltd. And AB.
and constitutes the legal, valid, and binding obligations of such company,
enforceable against such company in accordance with its terms subject to general
equitable principles and except as the enforceability of this Agreement may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws of general application relating to creditors' rights.
4.3 No Conflict; No Violation of Laws or Agreements. The execution
and delivery of this Agreement does not, and the consummation of the
Transactions and the compliance with the terms, conditions and provisions of
this Agreement by Stockholder will not: (a) contravene any provision of
Stockholder's Charter or Bylaws, or (b) conflict with, or constitute, or result
in any breach, default, violation of (or an event which might, with or without
14
the passage of time or the giving of notice or both constitute or result in a
breach, default or violation of) (i) any of the terms, conditions, or provisions
of any indenture, mortgage, loan, credit agreement, or any other instrument,
contract, agreement or commitment to which it is a party, or by which any of its
assets may be bound or affected or (ii) any judgment or order of any
Governmental Authority, or (iii) any law, rule, or regulation.
4.4 Consents. No consent, approval, or authorization of, or
registration or filing with, any Person, including any Governmental Authority,
is required in connection with company's execution and delivery of this
Agreement or the consummation of the Transactions by Companies.
4.5 Brokerage. Neither Company nor anyone acting on Company's
behalf has engaged, retained or incurred any liability to any broker, investment
banker, finder or agent, made any agreement or taken any other action which
might cause anyone to become entitled to a broker's fee or commission or agreed
to pay any brokerage fees, commissions, finder's fees or other fees with respect
to or as a result of the Transactions.
ARTICLE V
REPRESENTATION AND WARRANTIES OF BUYER
Each of Buyer, jointly and severally, represents and warrants
to Golden Sands Investment Holdings, Ltd. and Indie Studios AB , as of the date
hereof and as of the Closing Date, as follows:
5.1 Organization. Buyer is a corporation duly incorporated,
validly existing and in good standing under the laws of the UK and has all
requisite corporate power and authority (a) to do business in the jurisdictions
wherein the character of the properties owned or leased or the nature of the
activities by it make such qualification necessary, (b) to execute and deliver
this Agreement, and (c) to perform its obligations hereunder.
5.2 Capitalization and Ownership. The authorized capital stock of
Buyer consists of 100 private shares of common stock, $0.000 par value per
share, of which 100 shares of common stock are issued and outstanding and owned
by Tiger Telematics, Inc. All of such issued and outstanding shares of capital
stock of Buyer have been duly authorized, validly issued, are fully paid and
nonassessable, were not issued in violation of the terms of any agreement or
other understanding binding upon Buyer or any other Person and were issued in
compliance with all applicable federal and state securities or "blue-sky" laws
and regulations. Except as set forth in Schedule 5.1, there are no outstanding
securities, options, warrants, rights, agreements, calls, subscription
commitments, demands, or understandings of any character whatsoever, fixed or
contingent, that directly or indirectly (i) call for the issuance, sale or other
disposition of any capital stock of Buyer or any of its subsidiaries and there
are no securities convertible into or exchangeable for the stock of Buyer or
(ii) obligate Buyer to grant, offer or enter into any of the foregoing or (iii)
relate to the voting or control of any capital stock of Buyer or any of its
subsidiaries.
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5.3 Subsidiaries. Buyers parents directly owns all of the
outstanding shares of capital stock of Buyer.
5.4 Authorization and Enforceability. The execution and delivery
of the Transaction Agreements, and the performance of Buyer's and obligations
thereunder, have been duly authorized by all necessary corporate action on the
part of Buyer. This Agreement has been, and upon their execution and delivery by
Buyer and Target each of the other Transaction Agreement to which Buyer and
Target is a party will be, duly executed and delivered by each of Buyer and
Tiger and constitutes and will constitute the legal, valid and binding
obligation of Buyer and Tiger, as the case may be, enforceable against them in
accordance with their respective terms subject to general equitable principles
and except as the enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws of
general application relating to creditors' rights.
5.5 No Conflict; No Violation of Laws or Agreements. The execution
and delivery of this Agreement do not, the execution and delivery of the other
Transaction Agreements will not, and the consummation of the Transactions and
the compliance with the terms, conditions and provisions of the Transaction
Agreement by each of Buyer will not: (a) contravene any provision of Buyer's
Charter or Bylaws, or (b) conflict with, or constitute, or result in any breach,
default, violation of (or an event which might, with or without the passage of
time or the giving of notice or both constitute or result in a breach, default
or violation of) (i) any of the terms, conditions, or provisions of any
indenture, mortgage, loan, credit agreement, or any other instrument, contract,
agreement or commitment to which either of them is a party, or by which any of
their assets may be bound or affected or (ii) any judgment or order of any
Governmental Authority, or any law, rule, or regulation applicable to Buyer or
any of its Affiliates.
5.6 Consents. No consent, approval, or authorization of, or
registration or filing with, any Person, including any Governmental Authority,
is required in connection with Buyer's execution and delivery of this Agreement
or the consummation of the transactions contemplated by this Agreement by Buyer.
5.7 Brokers. Neither Buyer nor anyone acting on their behalf has
engaged, retained or incurred any liability to any broker, investment banker,
finder or agent, made any agreement or taken any other action which might cause
anyone to become entitled to a broker's fee or commission or agreed to pay any
brokerage fees, commissions, finder's fees or other fees with respect to or as a
result of the Transactions.
5.8 Truth and Accuracy of Disclosures. No disclosure made to
Target about Buyer's business, operations, financial condition, results of
operations or prospects (other than any statements relating solely to the
business, operations, financial condition, results of operations or prospects of
Target) contains or will contain any untrue statement of a material fact, or
omits or will omit to state a material fact necessary to make the statements of
facts contained therein not misleading or necessary to provide Target with
adequate and complete information as to Buyer's business, operations, financial
condition, results of operations or prospects.
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ARTICLE VI
PRE-CLOSING COVENANTS OF TARGET.
6.1 Conduct of Business. Between the date of this Agreement and
the Closing Date, Target will, and Seller will cause Target to:
(a) conduct the Business only in the ordinary course and
refrain from changing or introducing any method of management or operations
except in the ordinary course of business and consistent with prior practices;
(b) refrain from (i) making any purchase, sale or
disposition of any asset or property included in or to be included in the
Acquiring Assets other than in the ordinary course of business, (ii) purchasing
any capital asset for use in the Business costing more than $10,000, (iii)
mortgaging, pledging, subjecting to a lien or otherwise encumbering any of such
assets other than in the ordinary course of business, and (iv) including any
liabilities other than in the ordinary course of business consistent with past
practices;
(c) refrain from making any change or incurring any
obligation to make a change in its Charter, Bylaws or authorized or issued
capital stock;
(d) refrain from declaring, setting aside or paying any
dividend, making any other distribution in respect of its capital stock or
making any direct or indirect redemption, purchase or other acquisition of its
stock;
(e) refrain from making any change in the compensation
payable or to become payable to any of its officers, employees, agents or
independent contractors;
(f) refrain from prepaying any loans from its
stockholders, officers or directors (if any) or making any change in its
borrowing arrangements;
(g) use its best efforts to prevent any change with
respect to its management and supervisory personnel who are employed in the
Business;
(h) use its best efforts to keep available its present
officers and employees employed in the Business and to preserve the goodwill of
all suppliers, customers, distributors, independent contractors and others
having business relations with the Business; and
6.2 Authorization from Others. Prior to the Closing Date, Target
and Seller will obtain all authorizations, consents and permits of others
required to permit the consummation by Target and Seller of the Transactions.
6.3 Breach of Representations and Warranties. Neither any Tiger,
Inc. shall take any action that would result in any of the representations and
warranties contained in Articles 3 and 4 hereof being untrue in any material
respect. Promptly upon the occurrence of, or promptly upon Target or Tiger, Inc.
becoming aware of the impending or threatened occurrence of, any event that
would cause or constitute a breach or default, or would have caused or
17
constituted a breach or default had such event occurred or been known to Target
or Tiger, Inc. prior to the date hereof, of any of the representations and
warranties of the Target or Tiger, Inc. contained in this Agreement, Target and
Seller shall give detailed written notice thereof to Buyer and shall use their
respective best efforts to prevent or promptly cure the same.
6.4 Consummation of Agreement. Target and Seller shall use their
respective best efforts to perform and fulfill all conditions and obligations on
their parts to be performed and fulfilled under this Agreement.
6.5 Confidentiality. Target and Seller agree that (a) Target and
Seller and their respective officers, directors, agents and representatives will
hold in strict confidence, and will not use, any data and information obtained
in connection with this transaction or Agreement with respect to the business of
Buyer, except for the purpose of Target's and Seller's internal evaluation of
the Transactions; (b) if such Transactions are not consummated, Target and
Seller will return to Buyer all copies of such data and information, including
but not limited to worksheets, test reports, manuals, lists, memoranda, and
other documents prepared by or made available to Target and Seller in connection
with this transaction; and (c) they will treat the existence of this Agreement
and the transactions contemplated hereby as strictly confidential and will not
disclose them to any Person without the prior written consent of Buyer.
6.6 No Solicitation of Other Offers. Neither Target, Seller, nor
any of their respective officers, directors, agents or representatives will,
directly or indirectly, (i) solicit, initiate discussions or engage in
negotiations with, any person, other than Buyer, relating to the possible
acquisition of Target or any of the Acquired Assets (except in the ordinary
course of business of Target); (ii) provide, or cause any other person to
provide, any information to any person, other than Buyer, relating to the
possible acquisition of Target or any of the Acquired Assets (except in the
ordinary course of business of Target); or (iii) enter into a transaction with
any Person, other than Buyer, concerning the possible acquisition of Target or
any of the Acquired Assets (except in the ordinary course of business of
Target). Target and Seller will notify Buyer immediately if any Person makes any
proposal, offer, inquiry or contact with respect to any of the foregoing.
6.7 Access, Information, and Documents. Buyer and Buyer's counsel,
accountant, and other representatives will have full access during normal
business hours to all of Target's properties, books, tax returns, contracts,
commitments, records, officers, personnel, and accountants. Target shall provide
Buyer with all such documents and copies of documents (certified to be true
copies if requested) and all information with respect to the affairs of the
Target Companies as Buyer may reasonably request.
ARTICLE VII
PRE-CLOSING COVENANTS OF BUYER
7.1 Consummation of Agreement. Buyer shall use best efforts to
perform and fulfill all conditions and obligations on its part to be performed
and fulfilled under this Agreement.
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7.2 Confidentiality. Buyer agree that, unless and until the
Closing has been consummated, (a)Buyer and officers, directors, agents and
representatives will hold in strict confidence, and will not use, any data and
information obtained in connection with this transaction or Agreement with
respect to the business of Target, except for the purpose of Buyer's internal
evaluation of this transaction or the consummation of the Transactions; and (b)
if the Transactions are not consummated, Buyer will return to Target all copies
of such data and information, including but not limited to worksheets, test
reports, manuals, lists, memoranda, and other documents prepared by or made
available to Buyer in connection with this transaction.
7.3 Authorization from Others. Prior to the Closing Date, Buyer
will obtain all authorizations, consents and set forth on Schedule 7.3.
7.4 Breach of Representations and Warranties. Buyer shall not take
any action that would result in any of the representations and warranties
contained in Article 5 hereof being untrue in any material respect. Promptly
upon the occurrence of, or promptly upon Buyer becoming aware of the impending
or threatened occurrence of, any event that would cause or constitute a breach
or default, or would have caused or constituted a breach or default had such
event occurred or been known to Buyer prior to the date hereof, of any of the
representations and warranties of Buyer contained in or referred to in this
Agreement, Buyer shall give detailed written notice thereof to Target shall use
their best efforts to prevent or promptly cure the same.
ARTICLE VIII
CONDITIONS TO CLOSING
8.1 Conditions Precedent to Obligations of Buyer. The obligations
of Buyer to proceed with the Closing under this Agreement are subject to the
fulfillment prior to or at Closing of the following conditions (any one or more
of which may be waived in whole or in part by Buyer in Buyer's sole discretion):
(a) Representations, Warranties and Covenants. The
representations and warranties of Target and seller set forth in Articles 3 and
4 that are not qualified as to materiality shall be true and correct in all
material respects, and such the representations and warranties that are
qualified as to materiality shall be true and correct in all respects, at and as
of the Closing Date. Target and seller shall have performed and complied with
all of their covenants hereunder in all material respects through the Closing.
(b) Litigation. No order of any Governmental Authority
shall be in effect which restrains or prohibits the Transactions shall not be
threatened, nor shall there be pending, any action or proceeding (i) challenging
any of the Transactions or seeking monetary relief by reason of the consummation
of such transactions, or (ii) which would likely have a Material Adverse Effect.
(c) Consents. Target and Buyer shall have procured all of
the third party consents, approvals and authorizations set forth on Schedule
7.4.
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(d) Closing Certificate. Target shall have delivered to
Buyer a certificate to the effect that each of the conditions specified above in
Subsections 7.1(a), (b) and (c) is satisfied in all respects;
(e) Satisfactory Instruments. All instruments and
documents required of Target to effectuate and consummate the Transactions shall
be in form and substance reasonably satisfactory to Buyer and its counsel.
8.2 Conditions Precedent to the Obligations of Target. The
obligation of Target and seller to proceed with the Closing is subject to the
fulfillment prior to or at Closing of the following conditions (any one or more
of which may be waived in whole or in part by Target in its sole discretion):
(a) Material Adverse Effect. All representations and
warranties of Buyer contained herein shall be true, accurate, complete and
correct in all material respects as of the Closing Date.
(b) Litigation. No order of any Governmental Authority
shall be in effect which restrains or prohibits the Transactions. There shall
not be threatened, nor shall there be pending, any action or proceeding (i)
challenging any of the Transactions or seeking monetary relief by reason of the
consummation of such transactions, or (ii) which would likely have a Material
Adverse Effect.
(c) Satisfactory Instruments. All instruments and
documents required of Buyer to effectuate and consummate the Transactions
contemplated hereby shall be in form and substance reasonably satisfactory to
Target and the seller and their counsel.
ARTICLE IX
TERMINATION
9.1 Termination of Agreement. This Agreement and the transactions
contemplated hereby may be terminated at any time on or prior to the Closing
Date:
(a) Mutual Consent. By mutual written consent of Buyer
and Target and the Seller;
(b) Termination by Buyer. By Buyer upon notice to Target
if there has been a material misrepresentation, inaccuracy or breach by Target
or Seller of any of their representations, warranties or covenants, or if any of
the conditions specified in Section 8.1 hereof shall not have been substantially
fulfilled by the time required and not have been waived by Buyer, or if the
Closing shall not have occurred on or before August 30, 2004; or
(c) Termination by Target. By Target upon notice to Buyer
if there has been a material misrepresentation, inaccuracy or breach by Buyer of
any of its representations, warranties or covenants, or if any of the conditions
specified in Section 8.2 hereof shall not have been substantially fulfilled by
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the time required and not have been waived by Target, or if the Closing shall
not have occurred on or before August 30, 2004.
9.2 Effect of Termination. In the event of termination of this
Agreement by either Target or Buyer, as provided above, this Agreement shall
terminate as of the date of the written notice or consent described in Section
7.1 above, and there will be no liability on the part of Target or Buyer or
their respective Affiliates, except for liabilities arising from a breach of
this Agreement prior to such termination.
ARTICLE X
CERTAIN ADDITIONAL COVENANTS
10.1 Costs, Expenses, and Transfer Taxes. Each party hereto will
pay its own costs and expenses, including legal and accounting fees, in
connection with the negotiation, execution, performance of and compliance with
this Agreement.
10.2 Employee Matters. Immediately prior to the consummation of the
transactions contemplated hereby, Target will terminate all of its employees,
and Buyer will offer employment to all former employees of Target listed on
Schedule 5 at the same place of employment and on terms no less favorable than
the terms of employment that existed at Target.
ARTICLE XI
INDEMNIFICATION
11.1 Materiality; Survival. All representations, warranties,
agreements, covenants and obligations herein or in any schedule, certificate or
financial statement delivered by any party incident to the Transactions are
material, shall be deemed to have been relied upon by the parties and shall
survive the Closing hereof for a period of two (2) years and shall not merge in
the performance of any obligation by any party hereto; provided, however, that
all such matters relating to Product Liability, Environmental Laws or Taxes
shall survive the Closing for the period of the statute of limitations
applicable to such matters.
11.2 Indemnification Rights of Buyer.
(a) Seller and jointly and severally agrees to defend,
indemnify and hold Buyer and their respective subsidiaries and affiliates and
the persons serving as officers, directors, partners, employees or agents
thereof (hereinafter collectively referred to as "Buyer Indemnified Parties" or
individually as a "Buyer Indemnified Party") harmless from and against any
damages, liabilities, losses, fines, penalties, clean-up costs, study costs and
expenses (including, without limitation, reasonable counsel fees and expenses as
the same are incurred) (collectively, "Losses") of any kind or nature whatsoever
that may be sustained or suffered by any of them arising out of or based upon or
in connection with any of the following matters (notwithstanding any
investigation by or knowledge of any of the Buyer Indemnified Parties):
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(i) a breach of any representation, warranty,
agreement, covenant or obligation made by the Seller (but not any other
Stockholder) in this Agreement or in any exhibit, schedule, certificate or
financial statement delivered hereunder or in connection herewith or by reason
of any claim, action or proceeding asserted or instituted or growing out of any
matter or thing that constitutes or is alleged by a third party to constitute a
breach of such representations, warranties or covenants; and
(ii) any claims of third parties arising out of
or relating the Retained Liabilities.
Seller shall have no obligation to indemnify any Buyer
Indemnified Party from and against any Losses as to which a claim for
indemnification is not made on or before the second anniversary of the Closing
Date, except with respect to Product Liability, Environmental Laws or Taxes, as
to which any Buyer Indemnified Party can make a claim on or before the date on
which the statute of limitations period applicable to such matters expires.
No claims for Losses shall be brought hereunder by Buyer until
the aggregate amount of such claims exceeds $50,000, and, if the aggregate
amount of Losses claimed hereunder exceeds $50,000 and Buyer are entitled to
indemnification pursuant hereto, Buyer shall be entitled to collect any Losses
in excess of such $50,000.
(b) The Buyer Indemnified Parties shall give prompt
written notice to Target and Seller from which indemnification is sought of any
claim, liability or expense to which the indemnification obligations hereunder
would apply. Such notice shall state the information then available regarding
the amount of such claim, liability or expense and shall specify the provision
or provisions of this Agreement under which the claim, liability or expense is
asserted. The failure to promptly notify the Seller as provided above shall not
relieve the Seller of any liability hereunder except to the extent that the
rights of the Seller have been materially and adversely prejudiced as a result
of the failure to give, or the delay in giving, such notice.
(c) If such indemnification claim, liability or expense
is the subject of litigation, the Seller shall have the right to participate at
their own expense in the defense of any such litigation. The Buyer Indemnified
Parties may, in their sole discretion, authorize the Seller , if they so desire,
to take over the defense of such litigation so long as such defense is
expeditious and is undertaken by counsel acceptable to the Buyer Indemnified
Parties; provided, however, that the Seller shall not enter into any settlement
that has binding effect on the Buyer without the prior written consent of the
Buyer, which consent shall not be unreasonably withheld. In addition, the Buyer
Indemnified Party may not enter into any settlement in which an indemnifying
party will be liable hereunder without the consent of such indemnifying party.
11.3 Indemnification Rights of Seller.
(a) Buyer agree to defend, indemnify and hold Seller and
their respective subsidiaries and affiliates and the persons serving as
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officers, directors, partners, employees or agents thereof (hereinafter
collectively referred to as "Seller Indemnified Parties" or individually as a
"Seller Indemnified Party") harmless from and against any Losses of any kind or
nature whatsoever that may be sustained or suffered by any of them arising out
of or based upon or in connection with any of the following matters:
(i) a breach of any representation, warranty,
agreement, covenant or obligation made by Buyer in this Agreement or in any
exhibit, schedule or certificate delivered hereunder or in connection herewith
or by reason of any claim, action or proceeding asserted or instituted growing
out of any matter or thing that constitutes or is alleged by a third party to
constitute a breach of such representations, warranties or covenants; and
(ii) any claims of third parties arising out of
or relating to the ownership or operation of the shares of Tiger Telematics,
Ltd.Acquired Assets or the Business by Buyer after the Closing Date, whether
accrued, absolute, contingent or otherwise, including the Assumed Liabilities,
but not including the Retained Liabilities.
Buyer shall have no obligation to indemnify any Seller
Indemnified Party from and against any Losses as to which a claim for
indemnification is not made on or before the third anniversary of the Closing
Date. In no event shall the indemnification obligations of the Buyer to all
Seller Indemnified parties exceed $2,000,000.
(b) The Seller Indemnified Parties shall give prompt
written notice to Buyer of any claim, liability or expense to which the
indemnification obligations hereunder would apply. Such notice shall state the
information then available regarding the amount of such claim, liability or
expense and shall specify the provision or provisions of this Agreement under
which the claim, liability or expense is asserted. The failure to promptly
notify Buyer as provided above shall not relieve Buyer of any liability
hereunder except to the extent that the rights of Buyer have been materially and
adversely prejudiced as a result of the failure to give, or the delay in giving,
such notice.
(c) If such indemnification claim, liability or expense
is the subject of litigation, Buyer shall have the right to participate at their
own expense in the defense of any such litigation. The Seller Indemnified
Parties may, in their sole discretion, authorize Buyer if they so desire to take
over the defense of such litigation so long as such defense is expeditious and
is undertaken by counsel acceptable to the Seller Indemnified Parties; provided,
however, that Buyer shall not enter into any settlement which has binding effect
on Seller without the prior written consent of Seller, which shall not be
unreasonably withheld.
11.4 Indemnification Payments and Dispute Resolution. Any
indemnification amounts due under Section 11.2 or 11.3 shall be paid within 30
days after notice thereof is given by the party seeking indemnification unless
within said 30-day period the party providing indemnification indicates in a
writing delivered to the party seeking indemnification that it disputes the
nature or amount of the claim for indemnification in which event the dispute,
upon the election of any party hereto after said 30-day period, shall be
referred to the American Arbitration Association to be settled by arbitration in
Florida in accordance with the UNCITRAL rules of commercial arbitration. The
fees and expenses of the arbitrator shall be borne by that party (with Seller
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and Buyer together each being considered one party) whose last offer of
settlement differed by a greater amount from the arbitrator's award than did the
last offer of settlement of the other party; provided, however, that no offer of
settlement shall be disclosed to the arbitrator until after the arbitrator
renders an award on the merits. The determination of the arbitrator as to the
amount, if any, of the indemnification claim, liability or expense that is
properly allowable shall be conclusive and binding upon the parties hereto and
payment shall be made as so determined within five business days of the date of
such award. The judgment upon the award may be entered in any court having
jurisdiction thereof. There shall be added to the amount of any arbitration
award interest at the rate of 10% per annum, accrued daily, on the amount
required to be paid pursuant to such award. This interest will be computed from
the date payment would have been paid if not disputed to the date paid and the
arbitrator shall include provisions therefore in any award rendered.
ARTICLE XII
MISCELLANEOUS
12.1 Notices. All notices, requests, demands, and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if personally delivered by courier, or if mailed, when mailed by
United States first-class, certified or registered mail, postage prepaid, to the
other party at the following addresses or by telecopy, receipt confirmed (or at
such other address as shall be given in writing by any party to the other):
If to Buyer, to:
Xxxxxxx Xxxxxxxxx
CEO
Tiger Telematics, Inc.
00000 Xxxxxxxxx Xxxxxxx Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Fax: 000-000-0000
With a copy to:
Lawyer: XxXxxxx Xxxx, a Professional Corporation
000 Xxxx Xxxx Xxxxxx - 00xx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxxxx
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If to Seller, to:
Golden Sands Investment Holdings Ltd..
Attn: Xxxxx Uf
Fax:
12.2 Successors and Assigns. This Agreement, and all rights and
powers granted hereby, will bind and inure to the benefit of the parties hereto
and their respective successors and assigns, but neither this Agreement nor any
of the rights, interests, or obligations hereunder shall be assigned by any of
the parties hereto without the prior written consent of the other parties
hereto.
12.3 Construction. The parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties and no presumption or burden of proof shall
arise favoring or disfavoring any party by virtue of the authorship of any of
the provisions of this Agreement. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. The
word "including" shall mean including without limitation. The parties intend
that each representation, warranty, and covenant contained herein shall have
independent significance. If any party has breached any representation,
warranty, or covenant contained herein in any respect, the fact that there
exists another representation, warranty, or covenant relating to the same
subject matter (regardless of the relative levels of specificity) which the
party has not breached shall not detract from or mitigate the fact that the
party is in breach of the first representation, warranty, or covenant. All
pronouns and any variations thereof refer to the masculine, feminine or neuter,
singular or plural, as the identity of the Person or Persons may require. All
references herein to Articles, Sections (other than Sections of the Code or any
other statute) and subsections shall be deemed to be references to Articles,
Sections and subsections of this Agreement unless the context shall otherwise
require.
12.4 Governing Law. With respect to corporate governance matters
concerning a corporation of any jurisdiction, this Agreement shall be governed
by and construed in accordance with the laws of such jurisdiction. With respect
to all other matters, this Agreement shall be governed by and construed in
accordance with the laws of State of Florida, without regard to the conflicts of
law provisions thereof.
12.5 Headings. The headings preceding the text of the sections and
subsections hereof are inserted solely for convenience of reference and shall
not constitute a part of this Agreement, nor shall they affect its meaning,
construction, or effect.
12.6 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but which together
shall constitute one and the same instrument.
12.7 Further Assurances. Both before and after closing hereunder,
each party shall cooperate and take such action as may be reasonably requested
by another party in order to more fully carry out the provisions and purposes of
this Agreement and the transactions contemplated hereby.
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12.8 Course of Dealing. No course of dealing and no delay on the
part of any party hereto in exercising any right, power, or remedy conferred by
this Agreement shall operate as a waiver thereof or otherwise prejudice such
party's rights, powers and remedies. The failure of any of the parties to this
Agreement to require the performance of a term or obligation under this
Agreement or the waiver by any of the parties to this Agreement of any breach
hereunder shall not prevent subsequent enforcement of such term or obligation or
be deemed a waiver of an subsequent breach hereunder. No single or partial
exercise of any rights, powers or remedies conferred by this Agreement shall
preclude any other or further exercise thereof or the exercise of any other
right, power or remedy.
12.9 Severability. This Agreement shall be deemed severable, and
the invalidity or unenforceability of any term or provision hereof shall not
affect the validity or enforceability of this Agreement or of any other term or
provision hereof. Furthermore, in lieu of any such invalid or unenforceable term
or provision, the parties hereto intend that there shall be added as a part of
this Agreement a provision as similar in terms to such invalid or unenforceable
provision as may be valid and enforceable, so as to effect the original intent
of the parties to the greatest extent possible.
12.10 Entire Agreement. This Agreement and the Schedules, Exhibits
and Certificates hereto, each of which is hereby incorporated herein, set forth
all of the promises, covenants, agreements, conditions, and undertakings between
the parties hereto with respect to the subject matter hereof and supersede all
prior and contemporaneous agreements and understandings, inducements, or
conditions, express or implied, oral or written. This Agreement may not be
amended except by an instrument in writing signed by the party sought to be
charged with effect of such amendment.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement the day and year first above written.
TIGER TELEMATICS, INC.
By:____________________________________
Name: Xxxxxxx X. Xxxxxxxxx
Title: CEO
GIZMONDO EUROPE, LTD.
By:____________________________________
Name: Xxxx Xxxxx
Title: Managing Director
Golden Sands Investment Holdings, Ltd.
By:____________________________________
Name: Xxxxx Uf
Title: Director
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Exhibit A
DEFINITIONS
"Affiliate" means, when used with respect to any Person, (a) if such Person is a
corporation, any officer or director thereof and any Person which is, directly
or indirectly, beneficial owner (by itself or as part of any group) of more than
fifty percent (50%) of any class of any voting security thereof, (b) if such
Person is an LLC, any officer or manager thereof and any Person which is,
directly or indirectly, beneficial owner (by itself or as part of any group) of
more than fifty percent (50%) of any class of any voting interest therein, (c)
if such Person is a partnership, any general partner thereof and any Person
which is, directly or indirectly, beneficial owner (by itself or as part of any
group) of more than fifty percent (50%) of any limited partnership interest
thereof, and (d) any other Person which directly or indirectly, through one or
more intermediaries controls, is controlled by, or is under common control with,
such Person. For purposes of this definition: (i) any "beneficial owner" that is
a partnership shall be deemed to include any general or limited partner thereof,
any "beneficial owner" that is an LLC shall be deemed to include any Person
controlling, controlled by or under common control with such beneficial owner,
or any officer, manager or member of such beneficial owner or of any LLC
occupying any such control relationship, and any "beneficial owner" that is a
corporation shall be deemed to include any Person controlling, controlled by or
under common control with such beneficial owner, or any officer or director of
such beneficial owner or of any corporation occupying any such control
relationship; and (ii) "control" (including the correlative terms "controlling,"
"controlled by" and "under common control with"), with respect to any Person,
shall mean possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such Person, whether through the
ownership of voting securities or by contract or otherwise.
"Books and Records" includes the original and all copies of reports, books,
manuals, financial statements, or reports, price books, confirmations,
telegrams, receipts, inventory books, contracts, printed matters, computer
printouts, teletypes, invoices, transcripts, analyses, Returns, minutes,
accounts, estimates, projections, comparisons, press releases, reviews,
opinions, studies and investigations, graphic representations of any kind
(including photographs, charts, graphs, videotape and motion pictures,
electronic and mechanical records, tapes, cassettes, discs, and recordings,
whether preserved in writing, phone record, film, tape, videotape, or computer
record).
"Authorization" means all federal, foreign, state, provincial, municipal, local
or other governmental consents, certifications, licenses, permits,
registrations, grants and other authorizations that are necessary to permit
Target to conduct the Business as present conducted or proposed to be conducted.
"Bylaws" means the bylaws of any corporation organized under the laws of any
State of the United States of America and any equivalent document of any
corporation or entity organized under the laws of another jurisdiction, as
amended or restated through the date hereof or the Closing Date, as the case may
be.
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"Charter" means the Certificate of Incorporation or Formation, Articles of
Incorporation or Organization or other organizational document of a corporation
or an LLC organized under the laws of any State of the United States of America
and any equivalent document of a corporation, LLC or other similar entity
organized under the laws of another jurisdiction, as amended or restated through
the date hereof or the Closing Date, as the case may be.
"Code" means the Internal Revenue Code of 1986 and valid interpretations
thereof, as reflected in Treasury regulations, published IRS rulings and court
decisions.
"GAAP" means United States generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession, which are applicable to the circumstances as of the
date of determination, consistently applied.
"Governmental Authority" means all agencies, instrumentalities, departments,
commissions, courts, tribunals, or boards of any government, whether foreign,
federal, state, or local.
"Knowledge" all references to "knowledge" herein shall mean actual knowledge
after reasonable investigation. Knowledge of any entity shall be deemed to
include the knowledge of its directors and officers.
"Lien" means, with respect to any asset or right, any mortgage, deed of trust,
pledge, hypothecation, assignment, security interest, lien, charge, restriction,
adverse claim or right whatsoever, title defect or encumbrance of any kind
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any assignment or other conveyance of any right to receive
income and any assignment of receivables with recourse against assignor), any
filing of any financing statement as debtor under the Uniform Commercial Code or
comparable law of any jurisdiction and any agreement to give or make any of the
foregoing except with respect to securities, restrictions on transferability
imposed by federal and state securities laws.
"Material Adverse Effect" means an occurrence or event which has or is
reasonably likely to have a material adverse impact or effect on the Business,
or the operations, financial conditions or prospects of the applicable
companies, taken as a whole.
"Person" means any natural person, corporation, business trust, trust, estate,
partnership, limited partnership, LLC, limited liability partnership,
association, joint venture, or other entity.
"Taxes" or "Tax" means all taxes, however, denominated, including any interest,
penalties or other additions to tax that may become payable in respect thereof,
imposed by any federal, territorial, state, local or foreign government or any
agency or political subdivision of any such government, which taxes shall
include, without limiting the generality of the foregoing, all income or profits
taxes (including federal income taxes and state income taxes), real property
gains taxes, payroll and employee withholding taxes, unemployment insurance
taxes, social security taxes, sales and use taxes, ad valorem taxes, excise
29
taxes, franchise taxes, occupation taxes, real and personal property taxes,
stamp taxes, environmental taxes, transfer taxes and other governmental charges,
and other obligations of the same or of a similar nature to any of the
foregoing, which any Target Company is required to pay, withhold or collect.
30
