EXHIBIT 4.47
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT dated as of October 30, 2000, between
Xxxxxx.xxx, Inc., a Delaware corporation with principal executive offices
located at 000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000 (the
"Company"), and the person signatory hereto (the "Buyer").
W I T N E S S E T H:
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WHEREAS, Buyer desires to purchase from the Company, and the Company
desires to issue and sell to the Buyer, upon the terms and subject to the
conditions of this Agreement, 2,341,372 shares of Common Stock, $0.01 par value
(the "Common Stock");
NOW THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties hereto, intending to be legally bound,
hereby agree as follows:
I. PURCHASE AND SALE OF COMMON STOCK
A. TRANSACTION. The Buyer hereby agrees to purchase from the
Company, and the Company hereby agrees to issue and sell to the Buyer, in a
transaction exempt from the registration and prospectus delivery requirements of
the Securities Act of 1933, as amended (the "Securities Act"), the number of
shares of Common Stock set forth above.
B. PURCHASE PRICE; FORM OF PAYMENT. The purchase price for the
Common Stock to be purchased by Buyer hereunder shall be equal to 3 million U.S.
Dollars (US$3,000,000) (the "Purchase Price"). The Buyer shall pay the Purchase
Price on the date hereof by wire transfer of immediately available funds to the
escrow agent (the "Escrow Agent") identified in those certain Escrow
Instructions of even date herewith, a copy of which is attached hereto as ANNEX
I (the "Escrow Instructions").
Simultaneously against receipt by the Escrow Agent of the Purchase
Price, the Company shall deliver one or more duly authorized, issued and
executed certificates (I/N/O Buyer or, if the Company otherwise has been
notified, I/N/O Buyer's nominee) evidencing the Common Stock, to the Escrow
Agent or its designated depository. By executing and delivering this Agreement,
Buyer and the Company each hereby agrees to observe the terms and conditions of
the Escrow Instructions, all of which are incorporated herein by reference as if
fully set forth herein.
C. METHOD OF PAYMENT. Payment into escrow of the Purchase Price
shall be made by wire transfer of immediately available funds to:
Transfer Online Escrow 1
000 X X Xxxx, Xxxxx 000
Xxxxxxxx, Xxxxxx 00000
Account # 370591005548
For the account of Xxxxxx.xxx
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Simultaneously with the execution of this Agreement, the Buyer shall deposit
with the Escrow Agent the Purchase Price and the Company shall deposit with the
Escrow Agent the Common Stock.
II. BUYER'S REPRESENTATIONS, WARRANTIES; ACCESS TO INFORMATION;
INDEPENDENT INVESTIGATION.
Buyer represents and warrants to and covenants and agrees with the
Company as follows:
A. Buyer is purchasing for its own account, for investment pur-
poses only and not with a view towards or in connection with the public sale or
distribution thereof in violation of the Securities Act.
B. Buyer is (i) an "accredited investor" within the meaning of
Rule 501 of Regulation D under the Securities Act, (ii) experienced in making
investments of the kind contemplated by this Agreement, (iii) capable, by reason
of business and financial experience, of evaluating the relative merits and
risks of an investment in the Common Stock, and (iv) able to afford the loss of
Buyer's investment in the Common Stock.
C. Buyer understands that the Common Stock is being offered and
sold by the Company in reliance on an exemption from the registration
requirements of the Securities Act and equivalent state securities and "blue
sky" laws, and that the Company is relying upon the accuracy of, and Buyer's
compliance with, Buyer's representations, warranties and covenants set forth in
this Agreement to determine the availability of such exemption and the
eligibility of Buyer to purchase the Common Stock;
D. Buyer has been furnished with or provided access to all
materials relating to the business, financial position and results of operations
of the Company, and all other materials requested by Buyer to enable it to make
an informed investment decision with respect to the Common Stock.
E. Buyer acknowledges that Buyer has been furnished with, or had
access to through the XXXXX system of the Securities and Exchange Commission
(the "SEC"), copies of the Company's Annual Report on Form 10-KSB for the fiscal
year ended December 31, 1999 and all other reports and documents heretofore
filed by the Company with the SEC pursuant to the Securities Act and the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), since December
31, 1999 (collectively the "SEC Filings").
F. Buyer acknowledges that, in making the decision to purchase
the Common Stock, Buyer has been given an opportunity to ask questions of and to
receive answers from the Company's executive officers, directors and management
personnel concerning the terms and conditions of the private placement of the
Common Stock by the Company.
G. Buyer understands that the Common Stock has not been
approved or disapproved by the SEC or any state securities commission and that
the foregoing authorities have not reviewed any documents or instruments in
connection with the offer and sale to it of the Common Stock and have not
confirmed or determined the adequacy or accuracy of any such documents or
instruments.
H. This Agreement has been duly and validly authorized, executed
and delivered by Buyer and is a valid and binding agreement of Buyer enforceable
against Buyer in accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and similar laws
affecting creditors' rights and remedies generally.
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I. Neither Buyer nor its affiliates, nor any person acting on
its or their behalf, has the intention of entering, or will enter into, prior to
the closing, or has entered within the past 30 days, any put option, short
position or other similar instrument or position with respect to the Common
Stock and neither Buyer nor any of its affiliates, nor any person acting on its
or their behalf, will use at any time shares of Common Stock acquired pursuant
to this Agreement to settle any put option, short position or other similar
instrument or position that may have been entered into prior to the execution of
this Agreement.
III. COMPANY'S REPRESENTATIONS
The Company represents and warrants to Buyer that except as disclosed
on Schedule III hereto:
A. CAPITALIZATION. 1. The authorized capital stock of the
Company consists of 50,000,000 shares of Common Stock, of which 17,984,492
shares are outstanding on the date hereof and 5,000,000 shares of preferred
stock, par value $0.01, of which 1,200 shares of Series B Convertible Preferred
Stock are outstanding on the date hereof. All of the issued and outstanding
shares of Common Stock and preferred stock have been duly authorized and validly
issued and are fully paid and non-assessable. As of the date hereof, the Company
has outstanding stock options and warrants to purchase 8,230,947 shares of
Common Stock as set forth on Schedule III.A. The Common Stock has been duly and
validly authorized and reserved for issuance by the Company, and when issued by
the Company will be duly and validly issued, fully paid and non-assessable and
will not subject the holder thereof to personal liability by reason of being
such holder. There are no preemptive, subscription, "call" or other similar
rights to acquire the Common Stock that have been issued or granted to any
person.
2. The Company does not have any subsidiaries and does not
own or control, directly or indirectly, any interest in any other corporation,
partnership, limited liability company, unincorporated business organization,
association, trust or other business entity.
B. ORGANIZATION; REPORTING COMPANY STATUS.
1. The Company is a corporation duly organized, validly existing
and in good standing under the laws of its jurisdiction of organization and is
duly qualified as a foreign corporation in all jurisdictions in which the
failure to so qualify would have a material adverse effect on the business,
properties, prospects, condition (financial or otherwise) or results of
operations of the Company or on the consummation of any of the transactions
contemplated by this Agreement (a "Material Adverse Effect").
2. The Company has registered the Common Stock pursuant to Sec-
tion 12 of the Exchange Act and has timely filed with the SEC all reports and
information required to be filed by it pursuant to all reporting obligations
under Section 13(a) or 15(d), as applicable, of the Exchange Act for the
12-month period immediately preceding the date hereof. The Common Stock is
listed and traded on the NASDAQ SmallCap Market ("NASDAQ").
C. AUTHORITY; VALIDITY AND ENFORCEABILITY. The Company has
the requisite corporate power and authority to enter into this Agreement and the
Registration Rights Agreement of even date herewith between the Company and
Buyer, a copy of which is annexed hereto as Annex II (the "Registration Rights
Agreement") and to perform all of its obligations hereunder and thereunder
(including the issuance, sale and delivery to Buyer of the Common Stock). The
execution, delivery and performance by the Company of this Agreement and the
Registration Rights Agreement, and the consummation by the Company of the
transactions contemplated hereby and thereby has been duly
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authorized by all necessary corporate action on the part of the Company and no
further consent or authorization of the Company or its Board of Directors or
stockholders is required, except to the extent stockholder approval is required
under NASDAQ rules. Each of this Agreement and the Registration Rights Agreement
has been duly validly executed and delivered by the Company and each instrument
constitutes a valid and binding obligation of the Company enforceable against it
in accordance with its terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws affecting
creditors, rights and remedies generally.
D. NON-CONTRAVENTION. The execution and delivery by the Company
of this Agreement and the Registration Rights Agreement, the issuance of the
Common Stock, and the consummation by the Company of the other transactions
contemplated hereby and thereby, do not and will not conflict with or result in
a breach by the Company of any of the terms or provisions of, or constitute a
default (or an event which, with notice, lapse of time or both, would constitute
a default) under (i) the Amended and Restated Certificate of Incorporation or
by-laws of the Company, (ii) except for such conflict, breach or default which
would not have a Material Adverse Effect, any indenture, mortgage, deed of trust
or other material agreement or instrument to which the Company is a party or by
which its properties or assets are bound, or (iii) any law, rule, regulation,
decree, judgment or order of any court or public or governmental authority
having jurisdiction over the Company or any of the Company's properties or
assets, nor is the Company otherwise in violation of, conflict with or in
default under any of the foregoing, except for such conflict, breach or default
which would not have a Material Adverse Affect.
E. APPROVALS. No authorization, approval or consent of any court
or public or governmental authority is required to be obtained by the Company
for the issuance and sale of the Common Stock to Buyer on the Closing Date as
contemplated by this Agreement, except such authorizations, approvals and
consents that have been obtained by the Company prior to the Closing Date.
F. SEC FILINGS. None of the SEC Filings contained at the time
they were filed any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the statements
made therein, in light of the circumstances under which they were made, not
misleading. The Company has not provided to Buyer any information that,
according to applicable law, rule or regulation, should have been disclosed
publicly prior to the date hereof by the Company, but which has not been so
disclosed.
G. ABSENCE OF CERTAIN CHANGES. Except as disclosed in the SEC
Filings, since September 30, 2000, there has not occurred any change, event or
development in the business, financial condition, prospects or results of
operations of the Company, and there has not existed any condition having or
reasonably likely to have, a Material Adverse Effect.
H. FULL DISCLOSURE. There is no fact known to the Company (other
than general economic or industry conditions known to the public generally) that
has not been fully disclosed in writing to the Buyer that (i) reasonably would
be expected to have a Material Adverse Effect or (ii) reasonably would be
expected to materially and adversely affect the ability of the Company to
perform its obligations pursuant to this Agreement or the Registration Rights
Agreement.
I. ABSENCE OF LITIGATION. There is no action, suit, claim, pro-
ceeding, inquiry or investigation pending or, to the Company's knowledge,
threatened, by or before any court or public or governmental authority which, if
determined adversely to the Company, would have a Material Adverse Effect.
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J. ABSENCE OF EVENTS OF DEFAULT. No "Event of Default" (as
defined in any agreement or instrument to which the Company is a party) and no
event which, with notice, lapse of time or both, would constitute an Event of
Default (as so defined), has occurred and is continuing, which could have a
Material Adverse Effect.
K. COMPLIANCE WITH LAWS; PERMITS. The Company is in compliance
with all laws, rules, regulations, codes, ordinances and statutes (collectively
"Laws") applicable to it or to the conduct of its business, except for such
non-compliance which would not have a Material Adverse Effect. The Company
possesses all permits, approvals, authorizations, licenses, certificates and
consents from all public and governmental authorities which are necessary to
conduct its business, except for those the absence of which would not have a
Material Adverse Effect.
L. SECURITIES LAW MATTERS. Based, in part, upon the representa-
tions and warranties of Buyer set forth in Section II hereof, the offer and sale
by the Company of the Common Stock is exempt from (i) the registration and
prospectus delivery requirements of the Securities Act and the rules and
regulations of the SEC thereunder and (ii) the registration and/or qualification
provisions of all applicable state securities and "blue sky" laws. Other than
pursuant to an effective registration statement under the Securities Act, the
Company has not issued, offered or sold Common Stock (including for this purpose
any securities of the same or a similar class as the Common Stock, or any
securities convertible into or exchangeable or exercisable for Common Stock or
any such other securities) within the six-month period next preceding the date
hereof, except as previously disclosed in writing to Buyer.
M. TAX MATTERS. The Company has filed all Tax Returns which it
is required to file under applicable Laws, except for such Tax Returns in
respect of which the failure to so file does not and could not have a Material
Adverse Effect; all such Tax Returns are true and accurate in all material
respects and have been prepared in compliance with all applicable Laws; the
Company has paid all Taxes due and owing by it (whether or not such Taxes are
required to be shown on a Tax Return) and have withheld and paid over to the
appropriate taxing authorities all Taxes which they are required to withhold
from amounts paid or owing to any employee, stockholder, creditor or other third
parties; and since December 31, 1999, the charges, accruals and reserves for
Taxes with respect to the Company (including any provisions for deferred income
taxes) reflected on the books of the Company are adequate to cover any Tax
liabilities of the Company if its current tax year were treated as ending on the
date hereof.
For purposes of this Section III.M.:
"TAX" or "TAXES" means federal, state, county, local, foreign, or other
--- -----
income, gross receipts, ad valorem, franchise, profits, sales or use, transfer,
registration, excise, utility, environmental, communications, real or personal
property, capital stock, license, payroll, wage or other withholding,
employment, social security, severance, stamp, occupation, alternative or add-on
minimum, estimated and other taxes of any kind whatsoever (including, without
limitation, deficiencies, penalties, additions to tax, and interest attributable
thereto) whether disputed or not.
"TAX RETURN" means any return, information report or filing with
-----------
respect to Taxes, including any schedules attached thereto and including any
amendment thereof.
N. INTELLECTUAL PROPERTY. The Company owns or possesses adequate
and enforceable rights to use all patents, patent applications, trademarks,
trademark applications, trade names, service marks, copyrights, copyright
applications, licenses, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or
procedures) and other similar rights and proprietary knowledge (collectively,
"Intangibles") necessary for the conduct of its business as
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now being conducted. To the Company's knowledge, the Company is not infringing
upon or in conflict with any right of any other person with respect to any
Intangibles. No claims have been asserted by any person to the ownership or use
of any Intangibles and the Company has no knowledge of any basis for such claim.
O. NO MISREPRESENTATION. No representation or warranty of the
Company contained in this Agreement, any schedule, annex or exhibit hereto or
any agreement, instrument or certificate furnished by the Company to Buyer
pursuant to this Agreement, contains any untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading.
IV. CERTAIN COVENANTS AND ACKNOWLEDGMENTS.
A. RESTRICTIVE LEGEND. Buyer acknowledges and agrees that, upon
issuance pursuant to this Agreement, the Common Stock shall have endorsed
thereon a legend in substantially the following form (and a stop-transfer order
may be placed against transfer of the Common Stock:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE,
AND ARE BEING OFFERED AND SOLD PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND SUCH LAWS. THESE SECURITIES MAY NOT BE
SOLD OR TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OR SUCH OTHER LAWS."
B. FILINGS. The Company shall make all necessary SEC and "blue
sky" filings required to be made by the Company in connection with the sale of
the Common Stock to the Buyer as required by all applicable Laws.
C. REPORTING STATUS. So long as the Buyer beneficially owns any
of the Common Stock, the Company shall use its best efforts to file all reports
required to be filed by it with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act.
D. REGISTRATION RIGHTS AGREEMENT. The Company shall cause the
Registration Rights Agreement to remain in full force and effect and the Company
shall comply in all material respects with the terms thereof.
E. NOTICE OF CERTAIN EVENTS AFFECTING REGISTRATION. The Company
will immediately notify the Buyer upon the occurrence of any of the following
events in respect of a registration statement or related prospectus in respect
of an offering of the Common Stock; (i) receipt of any request for additional
information by the SEC or any other federal or state governmental authority
during the period of effectiveness of the Registration Statement to be supplied
by amendments or supplements to the registration statement or related
prospectus; (ii) the issuance by the SEC or any other federal or state
governmental authority of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that purpose;
(iii) receipt of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Common Stock for
sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose; (iv) the happening of any event that makes any statement made in
the Registration Statement or related prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue in any material respect
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or that requires the making of any changes in the Registration Statement,
related prospectus or documents so that, in the case of the Registration
Statement, it will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading, and that in the case of the related
prospectus, it will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; and (v) the Company's reasonable determination that a
post-effective amendment to the Registration Statement would be appropriate; and
the Company will promptly make available to Buyer any such supplement or
amendment to the related prospectus.
V. CLOSING DATE.
The date and time of the issuance and sale of the Common Stock (the
"Closing Date") shall be 12:00 a.m., Pacific Time, on the date which is 10 days
after all conditions to the parties' obligations have been fulfilled or waived,
or as otherwise mutually agreed upon by the parties in writing. The issuance and
sale of the Common Stock shall occur on the Closing Date at the offices of the
Escrow Agent.
VI. CONDITIONS TO THE COMPANY'S OBLIGATIONS.
The Buyer understands that the Company's obligation to sell the Common
Stock on the Closing Date to Buyer pursuant to this Agreement is conditioned
upon:
A. Delivery by Buyer of the Purchase Price;
B. The accuracy in all material respects on the Closing Date
of the representations and warranties of Buyer contained in this Agreement as if
made on the Closing Date (except for representations and warranties which, by
their express terms, speak as of and relate to a specified date, in which case
such accuracy shall be measured as of such specified date) and the performance
by Buyer in all material respects on or before the Closing Date of all covenants
and agreements of Buyer required to be performed by it pursuant to this
Agreement on or before the Closing Date;
C. There shall not be in effect any Law or order, ruling, judg-
ment or writ of any court or public or governmental authority restraining,
enjoining or otherwise prohibiting any of the transactions contemplated by this
Agreement.
D. Receipt of the approval of the Company's stockholders of the
transactions contemplated hereby.
VII. CONDITIONS TO BUYER'S OBLIGATIONS.
The Company understands that Buyer's obligation to purchase the Common
Stock on the Closing Date pursuant to this Agreement is conditioned upon:
A. Delivery by the Company of one or more certificates (I/N/O
Buyer) evidencing the Common Stock to be purchased by Buyer pursuant to this
Agreement;
B. The accuracy in all material respects on the Closing Date of the
representations and warranties of the Company contained in this Agreement as if
made on the Closing Date (except for representations and warranties which, by
their express terms, speak as of and relate to a specified date, in which case
such accuracy shall be measured as of such specified date) and the performance
by the
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Company in all material respects on or before the Closing Date of all covenants
and agreements of the Company required to be performed by it pursuant to this
Agreement on or before the Closing Date;
C. Buyer having received an opinion of counsel for the Company,
dated the Closing Date, in form, scope and substance reasonably satisfactory to
the Buyer.
D. There shall not be in effect any Law or order, ruling, judg-
ment or writ of any court or public or governmental authority restraining,
enjoining or otherwise prohibiting any of the transactions contemplated by this
Agreement.
VIII. TERMINATION.
A. TERMINATION BY MUTUAL WRITTEN CONSENT. This Agreement may be
terminated and the transactions contemplated hereby may be abandoned, for any
reason and at any time prior to the Closing Date, by the mutual written consent
of the Company and Buyer.
B. TERMINATION BY THE COMPANY OR BUYER. This Agreement may
be terminated and the transactions contemplated hereby may be abandoned by
action of the Company or Buyer if (i) the Closing shall not have occurred at or
prior to 5:00 p.m., New York City time, on _______________; PROVIDED, HOWEVER,
that the right to terminate this Agreement pursuant to this Article X.B(i) shall
not be available to any party whose failure to fulfill any of its obligations
under this Agreement has been the cause of or resulted in the failure of the
Closing to occur at or before such time and date or (ii) any court or public or
governmental authority shall have issued an order, ruling, judgment or writ, or
there shall be in effect any Law, restraining, enjoining or otherwise
prohibiting the consummation of any of the transactions contemplated by this
Agreement.
C. TERMINATION BY BUYER. This Agreement may be terminated and
the transactions contemplated hereby may be abandoned by Buyer at any time prior
to the Closing Date, if (i) the Company shall have failed to comply in any
material respect with any of its covenants or agreements contained in this
Agreement or (ii) there shall have been a breach by the Company with respect to
any representation or warranty made by it in this Agreement.
D. TERMINATION BY THE COMPANY. This Agreement may be terminated
and the transactions contemplated hereby may be abandoned by the Company at any
time prior to the Closing Date, if (i) Buyer shall have failed to comply in any
material respect with any of its covenants or agreements contained in this
Agreement or (ii) there shall have been a breach by Buyer with respect to any
representation or warranty made by it in this Agreement.
IX. SURVIVAL; INDEMNIFICATION.
A. The representations, warranties and covenants made by each
of the Company and Buyer in this Agreement, the annexes, schedules and exhibits
hereto and in each instrument, agreement and certificate entered into and
delivered by them pursuant to this Agreement, shall survive the Closing and the
consummation of the transactions contemplated hereby. In the event of a breach
or violation of any of such representations, warranties or covenants, the party
to whom such representations, warranties or covenants have been made shall have
all rights and remedies for such breach or violation available to it under the
provisions of this Agreement or otherwise, whether at law or in equity,
irrespective of any investigation made by or on behalf of such party on or prior
to the Closing Date.
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B. The Company hereby agrees to indemnify and hold harmless the
Buyer, its Affiliates and their respective officers, directors, partners and
members (collectively, the "Buyer Indemnitees"), from and against any and all
losses, claims, damages, judgments, penalties, liabilities and deficiencies
(collectively, "Losses"), and agrees to reimburse the Buyer Indemnitees for all
out-of-pocket expenses (including the reasonable fees and expenses of legal
counsel), in each case promptly as incurred by the Buyer Indemnitees and to the
extent arising out of or in connection with:
1. any misrepresentation, omission of fact or breach of
any of the Company's representations or warranties contained in this
Agreement, the annexes, schedules or exhibits hereto or any instrument,
agreement or certificate entered into or delivered by the Company
pursuant to this Agreement; or
2. any failure by the Company to perform in any
material respect any of its covenants, agreements, undertakings or
obligations set forth in this Agreement, the annexes, schedules or
exhibits hereto or any instrument, agreement or certificate entered
into or delivered by the Company pursuant to this Agreement.
C. Buyer hereby agrees to indemnify and hold harmless the
Company, its Affiliates and their respective officers, directors, partners and
members (collectively, the "Company Indemnitees"), from and against any and all
Losses, and agrees to reimburse the Company Indemnitees for all out-of-pocket
expenses (including the reasonable fees and expenses of legal counsel), in each
case promptly as incurred by the Company Indemnitees and to the extent arising
out of or in connection with:
1. any misrepresentation, omission of fact, or breach of
any of Buyer's representations or warranties contained in this
Agreement, the annexes, schedules or exhibits hereto or any instrument,
agreement or certificate entered into or delivered by Buyer pursuant to
this Agreement; or
2. any failure by Buyer to perform in any material
respect any of its covenants, agreements, undertakings or obligations
set forth in this Agreement or any instrument, certificate or agreement
entered into or delivered by Buyer pursuant to this Agreement.
D. Promptly after receipt by either party hereto seek-
ing indemnification pursuant to this Section IX (an "Indemnified Party") of
written notice of any investigation, claim, proceeding or other action in
respect of which indemnification is being sought (each, a "Claim"), the
Indemnified Party promptly shall notify the party against whom indemnification
pursuant to this Section IX is being sought (the "Indemnifying Party") of the
commencement thereof; but the omission to so notify the Indemnifying Party shall
not relieve it from any liability that it otherwise may have to the Indemnified
Party, except to the extent that the Indemnifying Party is materially prejudiced
and forfeits substantive rights and defenses by reason of such failure. In
connection with any Claim, the Indemnifying Party shall be entitled to assume
the defense thereof. Notwithstanding the assumption of the defense of any Claim
by the Indemnifying Party, the Indemnified Party shall have the right to employ
separate legal counsel (together with appropriate local counsel) and to
participate in the defense of such Claim, and the Indemnifying Party shall bear
the reasonable fees, out-of-pocket costs and expenses of such separate legal
counsel to the Indemnified Party if (and only if): (x) the Indemnifying Party
shall have agreed to pay such fees, out-of-pocket costs and expenses, (y) the
Indemnified Party and the Indemnifying Party reasonably shall have concluded
that representation of the Indemnified Party and the Indemnifying Party by the
same legal counsel would not be appropriate due to actual or, as
reasonably-determined by legal counsel to the Indemnified Party, (i) potentially
differing interests between such parties in the conduct of the defense of such
Claim, or (ii) if there may be legal defenses available to the Indemnified Party
that are in addition to
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or disparate from those available to the Indemnifying Party and which can not be
presented by counsel to the Indemnifying Party, or (z) the Indemnifying Party
shall have failed to employ legal counsel reasonably satisfactory to the
Indemnified Party within a reasonable period of time after notice of the
commencement of such Claim. If the Indemnified Party employs separate legal
counsel in circumstances other than as described in clauses (x), (y) or (z)
above, the fees, costs and expenses of such legal counsel shall be borne
exclusively by the Indemnified Party. Except as provided above, the Indemnifying
Party shall not, in connection with any Claim in the same Jurisdiction, be
liable for the fees and expenses of more than one firm of legal counsel for the
Indemnified Party (together with appropriate local counsel). The Indemnifying
Party shall not, without the prior written consent of the Indemnified Party
(which consent shall not unreasonably be withheld), settle or compromise any
Claim or consent to the entry of any judgment that does not include an
unconditional release of the Indemnified Party from all liabilities with respect
to such Claim or judgment.
E. In the event one party hereunder should have a claim
for indemnification that does not involve a claim or demand being asserted by a
third party, the Indemnified Party promptly shall deliver notice of such claim
to the Indemnifying Party. If the Indemnified Party disputes the claim, such
dispute shall be resolved by mutual agreement of the Indemnified Party and the
Indemnifying Party or by binding arbitration in San Francisco, California
conducted in accordance with the commercial procedures and rules of the American
Arbitration Association. Judgment upon any award rendered by any arbitrators may
be entered in any court having competent jurisdiction thereof.
X. GOVERNING LAW: MISCELLANEOUS.
This Agreement shall be governed by and interpreted in accordance with
the laws of the State of California, without regard to the conflicts of law
principles of such state. Each of the parties consents to the jurisdiction of
the federal courts whose districts encompass any part of the City of San
Francisco or the state courts of the State of California sitting in the City of
San Francisco in connection with any dispute arising under this Agreement and
hereby waives, to the maximum extent permitted by law, any objection, including
any objection based on FORUM NON CONVENIENS, to the bringing of any such
proceeding in such jurisdictions. A facsimile transmission of this signed
Agreement shall be legal and binding on all parties hereto. This Agreement may
be signed in one or more counterparts, each of which shall be deemed an
original. The headings of this Agreement are for convenience of reference and
shall not form part of, or affect the interpretation of, this Agreement. If any
provision of this Agreement shall be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect the validity
or enforceability of the remainder of this Agreement or the validity or
enforceability of this Agreement in any other jurisdiction. This Agreement may
be amended only by an instrument in writing signed by the party to be charged
with enforcement. This Agreement supersedes all prior agreements and
understandings among the parties hereto with respect to the subject matter
hereof.
XI. NOTICES. Except as may be otherwise provided herein, any notice
or other communication or delivery required or permitted hereunder shall be in
writing and shall be delivered personally or sent by certified mail, postage
prepaid, or by a nationally recognized overnight courier service, and shall be
deemed given when so delivered personally or by overnight courier service, or,
if mailed, three (3) days after the date of deposit in the United States mails,
as follows:
(1) if to the Company, to:
Xxxxxx.xxx, Inc.
000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
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Attention: Xxxxxxx Xxxxxx
with a copy to:
Xxxxx X. Xxxxx, Xx., Esq.
McCutchen, Doyle, Xxxxx & Xxxxxxx, LLP
0 Xxxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000
(2) if to Buyer, to the address set forth on the signature page hereof
with a copy to:
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The Company or Buyer may change the foregoing address by notice given pursuant
to this Section XI.
XII. CONFIDENTIALITY. Each of the Company and Buyer agrees to keep
confidential and not to disclose to or use for the benefit of any third party
the terms of this Agreement or any other information which at any time is
communicated by the other party as being confidential without the prior written
approval of the other party; provided, however, that this provision shall not
apply to information which, at the time of disclosure, is already part of the
public domain (except by breach of this Agreement) and information which is
required to be disclosed by law (including, without limitation, pursuant to Item
10 of Rule 601 of Regulation S-K under the Securities Act and the Exchange Act).
XIII. ASSIGNMENT. This Agreement shall not be assignable by either
of the parties hereto prior to the Closing without the prior written consent of
the other party, and any attempted assignment contrary to the provisions hereby
shall be null and void; PROVIDED, HOWEVER, that Buyer may assign its rights and
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obligations hereunder, in whole or in part, to any affiliate of Buyer who
furnishes to the Company the representations and warranties set forth in Section
II hereof and otherwise agrees to be bound by the terms of this Agreement.
XIV. BROKERS. Each of the parties hereto represents that it has had
no dealings in connection with this transaction with any finder or broker who
will demand payment of any fee or commission from the other party. The Company
on the one hand, and Buyer, on the other hand, agree to indemnify the other
against and hold the other harmless from any and all liabilities to any person
claiming brokerage commissions or finder's fees on account of services purported
to have been rendered on behalf of the indemnifying party in connection with
this Agreement or the transactions contemplated hereby.
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement on the date first above written.
XXXXXX.XXX, INC.
By: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
Title: President
BUYER
Name:
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By: /s/ XX XXXX HAO
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Name: Xx Xxxx Hao
Title:
Jurisdiction of Incorporation:
Address:
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Telephone No. --------------------
Fax No. --------------------
e-mail --------------------
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