Global Sources Limited
0000 Xxxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxxx, Xxx Xxxxxx 00000
November 16, 2000
JEM Technology, Inc.
00 Xxxxxx Xxxxxx
Xxxxxxx Xxxx, XX 00000
Xxxx Xxxxxxxxx
00 Xxxxxx Xxxxxx
Xxxxxxx Xxxx, XX 00000
Gentlemen:
Reference is made to that Agreement and Plan of Merger, dated February
18, 2000, by and among JEM Technology, Inc., a Delaware corporation ("JEM"), and
its sole shareholder Xxxx Xxxxxxxxx, an individual ("Schibelli"), and each of
JEM Acquisition Corp., a Delaware corporation (the "Subsidiary") and Global
Sources Limited, a Delaware corporation ("Global"), as amended by an Agreement
of Amendment dated as of May 10, 2000 (as amended, the "Merger Agreement").
As contemplated by the Merger Agreement, Subsidiary was to merge with
and into JEM, with JEM surviving as a wholly-owned subsidiary of Global. As
consideration for the proposed merger, (i) Global would issue stock and pay cash
to Schibelli as the sole shareholder and (ii) following the Merger, JEM would
employ each of Schibelli, Xxxxxx Xxxxxxxxx and Xxxx Xxxxxxx.
The parties to the Merger Agreement hereby acknowledge and confirm that
the transactions contemplated by the Merger Agreement were never consummated.
Accordingly, each of JEM, Schibelli, Global and Subsidiary and each of Xxxxxx
Xxxxxxxxx, Xxxx Xxxxxxx and GS Management, Inc., each a party or third-party
beneficiary of the Merger Agreement and the transactions contemplated therein
(each a "Party" and collectively, the "Parties") acknowledge, confirm and agree,
as follows:
A. TERMINATION OF MERGER AGREEMENT AND UNWINDING OF THE TRANSACTION
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1. The Merger Agreement is hereby terminated, effective upon
execution hereof, and the transactions contemplated thereby,
to the extent performed, shall be unwound
JEM Technology, Inc.
November 16, 2000
Page 2
in accordance with the terms and conditions of this Agreement
and, without any further action by any of the Parties, shall
be deemed to be null and void ab initio, without any force or
effect. Simultaneously with the execution of this Agreement,
Global will deliver to Schibelli a copy of the certificate of
merger of JEM with the Subsidiary, certified by the Secretary
of State of Delaware, and if permitted under the laws of the
State of Delaware, the parties will execute for filing with
the Secretary of State of Delaware a certificate of
correction, nullifying the certificate of merger. Global
represents and warrants that, other than the certificate of
merger and the certificate of correction contemplated hereby,
no further filings were made with the Secretary of State of
Delaware with respect to JEM and the merger since the date of
the merger. To the extent that a certificate of correction is
not permitted, then the Parties will take all necessary steps
to assign to JEM, for no additional consideration, all of the
capital stock of the Subsidiary.
2. No shares of the capital stock of Global, par value $.001 per
share, or other securities of Global were issued to Schibelli
in exchange for the capital stock of JEM pursuant to the
Merger Agreement, and no shares of the capital stock or other
securities of JEM, as the surviving corporation in the merger,
were issued to Global or to any of Global's subsidiaries or
affiliates. To the extent that any shares or other securities
were so exchanged or issued, as the case may be, such exchange
or issuance shall be deemed to be null and void, ab initio,
and any shares or other securities exchanged or issued shall
be surrendered and returned to Global and/or JEM, as the case
may be, simultaneous with the execution of this Agreement.
Each of JEM and Schibelli, on the one hand, and Global and the
Subsidiary, on the other hand, hereby waives any and all
right, title and interest, alleged or otherwise, in and to the
capital stock or other securities of Global and/or JEM, as the
case may be.
3. Global neither acquired any shares of capital stock or other
securities of Power Si3 Corp. nor made any loans or advances
to Power Si3 Corp. Accordingly, Power Si3 Corp. has no
obligation, liability or debt to Global or any other person or
entity relating to such acquisition. To the extent that any
shares or other securities were so acquired or any loan or
advance so made, such acquisition, loan or advance, as the
case may be, shall be deemed to be null and void, ab initio,
and any shares or other securities or any promissory note or
other instrument evidencing any such loan or advance shall be
surrendered or terminated, as the case may be, and returned to
Power Si3 Corp. by Global simultaneously with the execution of
this Agreement.
4. JEM never transferred to Schibelli the capital stock held by
JEM in ZLand, Inc. and Endo Surgical Devices, Inc. and
Schibelli never received any such shares of capital stock of
ZLand, Inc. or Endo Surgical Devices, Inc. Accordingly,
Schibelli has no obligation, liability or debt to JEM, Global
or any other person or
JEM Technology, Inc.
November 16, 2000
Page 3
entity relating to such transfer. To the extent that any
shares of capital stock were so transferred, such transfer
shall be deemed to be null and void, ab initio, and any such
shares of capital stock shall be surrendered and returned to
JEM by Schibelli and any promissory note that Schibelli may
have delivered to Global relating to such transfer shall be
terminated and delivered to Schibelli simultaneously with the
execution of this Agreement.
5. To the extent any employment agreements were entered into by
Subsidiary or Global with any of Schibelli, Xxxxxx Xxxxxxxxx
or Xxxx Xxxxxxx, each such employment agreement is hereby
terminated and, without any further action by any of the
Parties, shall be deemed to be null and void ab initio,
without any further effect as to the parties thereto.
6. To the extent that Global or its subsidiary, GS Management,
Inc., paid any amounts to Schibelli, Xxxxxx Xxxxxxxxx or Xxxx
Xxxxxxx for services at any time during the period from
February 18, 2000 through the date hereof, such amounts shall
be deemed compensation for services rendered on an independent
contractor basis.
7. Except as otherwise may be agreed to or as provided for
elsewhere in this Agreement, none of JEM, Schibelli, Xxxxxx
Xxxxxxxxx or Xxxx Xxxxxxx has any obligation, liability or
debt to Global or any of its affiliates, including GS
Management, Inc. Except as provided for elsewhere in this
Agreement, none of Global or any of its affiliates, including
GS Management, Inc., owes any amount to JEM, Schibelli, Xxxxxx
Xxxxxxxxx or Xxxx Xxxxxxx.
B. RELEASES
--------
Upon the execution hereof, each of (i) Schibelli, on behalf of himself,
his agents, heirs, executors, estate and personal representatives and (ii) JEM,
on behalf of itself, its present and former officers, directors, employees,
representatives, parent and subsidiary entities, successors and permitted
assigns (collectively, the "JEM Releasors") does hereby forever release Global,
the Subsidiary and GS Management, Inc., together with their respective officers,
directors, employees, representatives, parent and subsidiary entities, as
applicable, and the successors and assigns of each of them, as applicable (the
"Global Releasees"), from any and all claims, suits, debts, liens, liabilities,
losses, causes of action, rights, damages, demands, obligations, promises, costs
and expenses (including, without limitation, attorneys' fees and expenses) of
every kind, nature and description, in law or in equity, whether known or
unknown, or known in the future, fixed or contingent, billed or unbilled,
suspected, disclosed or undisclosed, claimed or concealed from the beginning of
time through the date hereof, which the JEM Releasors (or any of them) ever had,
now have, or may in the future have, against the Global Releasees (or any of
them) in connection with, arising out of or in any way related to (a) the Merger
Agreement and the transactions contemplated thereby, (b) their participation
with the Global Releasees and the
JEM Technology, Inc.
November 16, 2000
Page 4
business of the Global Releasees, (c) the Global Releasees' shareholdings, and
(d) employment with Global Releasees, to extent any existed or was in effect,
including, without limitation, the employment agreements between GS Management,
Inc. and each of Schibelli, Xxxxxx Xxxxxxxxx and Xxxx Xxxxxxx.
Upon the execution hereof, each of Global, the Subsidiary and GS
Management, Inc., on behalf of itself, its present and former officers,
directors, employees, representatives, parent and subsidiary entities,
successors and permitted assigns (collectively, the "Global Releasors"), does
hereby forever release (i) JEM, together with their respective officers,
directors, employees, representatives, parent and subsidiary entities, as
applicable, (ii) Schibelli, together with his agents, attorneys, heirs,
executors, estate, and personal representatives, as applicable, and (iii) the
successors and assigns of each of them, as applicable (the "JEM Releasees"),
from any and all claims, suits, debts, liens, liabilities, losses, causes of
action, rights, damages, demands, obligations, promises, costs and expenses
(including, without limitation, attorneys' fees and expenses) of every kind,
nature and description, in law or in equity, whether known or unknown, or known
in the future, fixed or contingent, billed or unbilled, suspected, disclosed or
undisclosed, claimed or concealed from the beginning of time through the date
hereof, which the Global Releasors (or any of them) ever had, now have, or may
in the future have, against the JEM Releasees (or any of them) in connection
with, arising out of or in any way related to (a) the Merger Agreement and the
transactions contemplated thereby, (b) their participation with the JEM
Releasees and the business of the JEM Releasees, (c) the JEM Releasees'
shareholdings and (d) the employment agreements, to extent any existed or was in
effect, between GS Management, Inc. and each of Schibelli, Xxxxxx Xxxxxxxxx and
Xxxx Xxxxxxx.
C. CONFIDENTIALITY; NON-DISPARAGEMENT.
-----------------------------------
Each of the Parties, Xxxxxx Xxxxxxxxx and Xxxx Xxxxxxx after the date
hereof shall not, and shall cause each of his or its affiliates not to, directly
or indirectly, under any circumstance: (i) disclose to any other person or
entity any Confidential and Proprietary Information (as defined below) belonging
to any other Party hereto; (ii) act or fail to act in any manner that might
impair the confidential or proprietary nature of any Confidential and
Proprietary Information or the benefits thereof to any other Party hereto; (iii)
use or keep any such Confidential and Proprietary Information belonging to the
other Party in any manner; or (iv) offer or agree to, or cause or assist in the
inception or continuation of, any such disclosure, impairment or use of any
Confidential and Proprietary Information belonging to a Party. All Confidential
and Proprietary Information shall be and remain the sole and exclusive property
of the owner prior to the Merger Agreement, and shall be returned to such Party
contemporaneously with the execution of this Agreement.
For the purposes of this Agreement, "Confidential and Proprietary
Information" shall mean any and all of the following (regardless of the medium
in which maintained or stored): (i) confidential or proprietary information or
material not in the public domain about or relating to any aspect of the
business of any Party,
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November 16, 2000
Page 5
any trade secrets relating to the business of any Party, including, without
limitation, financial information and projections, data and reports; business
improvements, processes, marketing and selling strategies; strategic business
plans (whether pursued or not); budgets; licenses; pricing, pricing strategy and
cost data; the identities of customers and potential customers; the identities
of contact persons at customers and potential customers; the particular
preferences, likes, dislikes and needs of customers and contact persons of
customers with respect to services, pricing, timing, sales terms, methods,
practices, strategies, forecasts, know-how and other marketing techniques; the
identities of key accounts; and the terms of contracts or Agreements; or (ii)
any information, documentation, data or material of any nature whatsoever not in
the public domain, the knowledge of which gives or would likely give any Party
an advantage with respect to the business of such Party over anyone not
possessing such information.
None of the Parties, Xxxxxx Xxxxxxxxx and Xxxx Xxxxxxx shall, nor shall
any of them cause its respective successors and affiliates to, directly or
indirectly, make or take any action intended to malign or disparage the other
parties hereto, this Agreement or the terms hereof. Each of the parties hereto
acknowledges that the other party would be harmed by a breach of this provision
and that, in addition to any other remedy, the harmed party hereunder would be
entitled to injunctive relief.
D. INDEMNIFICATION BY JEM
----------------------
Each of JEM and Schibelli acknowledges and confirms that Schibelli and
the management of JEM retained operational control over JEM during all times
since February 18, 2000. During that period, (i) Schibelli was the sole director
of the JEM and retained the sole power to appoint officers and determine the
signatories on all bank accounts of JEM, (ii) Schibelli retained possession of
the minute book and stock book of JEM, (iii) Schibelli retained possession of
the stock certificate representing the shares of JEM, (iv) neither Global,
Subsidiary, nor any of their affiliates caused JEM to pay a dividend, make
upstream loans or otherwise lend money to Global, Subsidiaries or their
affiliates, or otherwise caused money to be removed from JEM, and except as
otherwise provided by this Agreement, no such loans were, in fact, made, and (v)
neither Global, Subsidiary, nor any of their affiliates exerted any control or
influence over JEM in any way whatsoever.
In light of the foregoing, JEM and Schibelli, jointly and severally,
shall indemnify and hold harmless Global, Subsidiary and GS Management, Inc.
against and in respect of any and all claims, liabilities, obligations, losses,
costs, expenses, deficiencies, litigation, proceedings, taxes, levies, imposts,
duties, deficiencies, assessments, attorneys' fees, charges, allegations,
demands, damages, or judgments of any kind or nature whatsoever ("Claims"), to
the extent related to, arising from, or associated with any acts, omissions,
events, occurrences, circumstances or transactions of whatsoever type or nature
associated with, arising out of, or relating to, the ownership of JEM by any of
Schibelli, Xxxxxx Xxxxxxxxx or Xxxx Xxxxxxx, or the conduct or operation of the
business of JEM, whenever such claims may arise.
JEM Technology, Inc.
November 16, 2000
Page 6
Global shall indemnify and hold harmless JEM, Schibelli, Xxxxxx
Xxxxxxxxx and Xxxx Xxxxxxx against and in respect of any and all Claims,
including but not limited to securities law claims, brought by any investor in
Global or prospective investor in Global or their respective affiliates, to the
extent any such Claim is related to, arises from, or is associated with
representations made by Global, its affiliates or their authorized
representatives to such investor, prospective investor or affiliates as to JEM,
JEM's ownership or the transactions that were to take place pursuant to the
Merger Agreement, whenever such Claims may arise.
E. MISCELLANEOUS PROVISIONS
------------------------
This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of New York, without regard to principles
of conflicts or choice of law (or any other law that would make the laws of any
state other than the State of New York applicable hereto). Each of the Parties
unconditionally and irrevocably consents to the exclusive jurisdiction of the
courts of the State of New York and the Federal District Court for the Southern
District of New York with respect to any suit, action or proceeding arising out
of or relating to this Agreement or the transactions contemplated hereby, and
each of the Parties hereby unconditionally and irrevocably waives any objection
to venue in any such court. Each of the parties hereby unconditionally and
irrevocably waives the right to a trial by jury in any such action, suit or
proceeding.
This Agreement contains the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior and/or
contemporaneous understandings and Agreements of any kind and nature. This
Agreement may not be modified, amended, altered or supplemented, except by a
written agreement executed by each of the parties hereto. This Agreement shall
be construed and interpreted without regard to any presumption against the party
causing this Agreement to be drafted.
All notices, demands, consents, requests, instructions and other
communications to be given or delivered or permitted under or by reason of the
provisions of this Agreement or in connection with the transactions contemplated
hereby shall be in writing and shall be deemed to be delivered and received by
the intended recipient as follows: (a) if personally delivered, on the business
day of such delivery (as evidenced by the receipt of the personal delivery
service), (b) if mailed certified or registered mail return receipt requested,
four (4) business days after being mailed, (c) if delivered by overnight courier
(with all charges having been prepaid), on the business day of such delivery (as
evidenced by the receipt of the overnight courier service of recognized
standing), or (d) if delivered by facsimile transmission, on the business day of
such delivery if sent by 6:00 p.m. in the time zone of the recipient, or if sent
after that time, on the next succeeding business day (as evidenced by the
printed confirmation of delivery generated by the sending party's telecopier
machine). If any notice, demand, consent, request, instruction or other
communication cannot be delivered because of a changed address of which no
notice was given, or the refusal to accept same, the notice, demand, consent,
request, instruction or other communication shall be deemed received on the
second business day the notice is sent (as
JEM Technology, Inc.
November 16, 2000
Page 7
evidenced by a sworn affidavit of the sender). All such notices, demands,
consents, requests, instructions and other communications will be sent to the
respective addresses of the Parties as such addresses appear in this Agreement,
or to such other address as any Party may specify by notice given to the other
parties in accordance with this paragraph.
Each party hereto covenants and agrees promptly to execute, deliver, file or
record such agreements, instruments, certificates and other documents and to
perform such other and further acts as the other party hereto may reasonably
request or as may otherwise be necessary or proper to consummate and perfect the
transactions contemplated hereby.
This Agreement may be executed in two or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
shall be deemed to be an original, and all of which, when taken together, shall
constitute one and the same document. This Agreement shall become effective when
one or more counterparts, taken together, shall have been executed and delivered
by all of the parties. The facsimile signature of a party hereto shall
constitute a valid and effective signature.
By executing below, each of the Parties hereby represents and warrants
to the other Parties hereto as follows: (i) it has the requisite power, right,
capacity and authority, as the case may be, to execute, to execute, deliver and
perform this Agreement; (ii) no consents or approvals of, notices to or filings
with, any person or entity are required to be obtained in connection with its
execution, delivery and performance of this Agreement; (iii) this Agreement
constitutes a legal, valid and binding obligation of it, enforceable against it
in accordance with its terms, except as enforcement may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws of
general applicability affecting the enforcement of creditors' rights and the
application of general principles of equity (regardless of whether
enforceability is
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JEM Technology, Inc.
November 16, 2000
Page 8
considered in a proceeding in equity or at law); (iv) it has received
independent legal advice from attorneys of its choice with respect to the terms
and provisions of this agreement, the advisability of entering into this
Agreement and of the consequences of entering into this Agreement; and (v) the
execution, delivery and performance of this Agreement does not and will not
violate or constitute a breach of, or default under, any material agreement or
other instrument binding upon it or to which it is a party; or violate or
contravene any judgment, decree or order of any court or regulatory body binding
upon it.
Very truly yours,
GLOBAL SOURCES LIMITED
/s/ Xxxx Xxxxxxx
-----------------------------
By: Xxxx Xxxxxxx
JEM ACQUISITION CORP.
/s/ Xxxx Xxxxxxx
-----------------------------
By: Xxxx Xxxxxxx
GS MANAGEMENT, INC.
/s/ Xxxx Xxxxxxx
-----------------------------
By: Xxxx Xxxxxxx
THE FOREGOING IS HEREBY
ACKNOWLEDGED AND AGREED TO
THIS 17THDAY OF NOVEMBER 2000 BY:
JEM TECHNOLOGIES, Inc.
/s/ Xxxx Xxxxxxxxx
-----------------------------
By: Xxxx Xxxxxxxxx
/s/ Xxxx Xxxxxxxxx
--------------------------------
Xxxx Xxxxxxxxx
/s/ Xxxxxx Xxxxxxxxx
--------------------------------
Xxxxxx Xxxxxxxxx
/s/ Xxxx Xxxxxxx
--------------------------------
Xxxx Xxxxxxx
