EXHIBIT 1.1
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of December 31, 2001 ("Agreement"),
by and between Angoeo, Inc., a Florida corporation (the "Buyer"), Dotcom
Internet Ventures Ltd., a Delaware corporation (the "Seller") and ▇▇▇▇▇▇▇ ▇▇▇
("Tay"). The Buyer, the Seller and Tay are collectively referred as the
"Parties".
WHEREAS, the Seller owns all of the issued and outstanding capital
stock of Universal Equity Partners, Inc., a Delaware corporation (the
"Company"); and
WHEREAS, the Buyer desires to purchase from the Seller, and the Seller
desires to sell to the Buyer, all of the issued and outstanding capital stock of
the Company in return for cash on the terms set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein made, and in consideration of the representations, warranties,
and covenants herein contained, the Parties, intending to be legally bound,
hereby agree as follows:
1. DEFINITIONS. Capitalized terms used, but not otherwise defined,
herein have the meanings set forth below:
"ADVERSE CONSEQUENCES" means all actions, suits, proceedings, hearings,
investigations, charges, complaints, claims, demands, injunctions, judgments,
orders, decrees, rulings, damages, dues, penalties, fines, costs, amounts paid
in settlement, Liabilities, obligations, Taxes, liens, losses, lost value,
expenses, and fees, including court costs and attorneys' fees and expenses.
"AFFILIATE" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Exchange Act.
"AFFILIATED GROUP" means any affiliated group within the meaning of
Code Section 1504(a) or any similar group defined under a similar provision of
state or local law.
"BUYER(S)" has the meaning set forth in the preface above.
"CLOSING" has the meaning set forth in Section 2(d) below.
"CLOSING DATE" has the meaning set forth in Section 2(d) below.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMPANY" has the meaning set forth in the recitals above.
EXHIBIT 1.1-1
"CONFIDENTIAL INFORMATION" means any information concerning the
businesses and affairs of the Company and its Subsidiaries and the Buyer and its
Affiliates that is not already generally available to the public and shall
include any and all information relating to the price and terms of this
Agreement.
"EXCHANGE ACT" means the Exchange Act of 1934, as amended.
"FINANCIAL STATEMENTS" has the meaning set forth in Section 4(d) below.
"GAAP" means United States generally accepted accounting principles as
in effect from time to time.
"GOVERNMENTAL AUTHORITY" means any federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality,
or any court of the United States of America or any political subdivision
thereof, or of any other country.
"INDEBTEDNESS" of any Person means, in each case whether or not accrued
on the books of the Person, (a) all indebtedness of the Person for borrowed
money or for the deferred purchase price of property or services, (b) all
obligations of the Person upon which interest charges are customarily paid or
which are evidenced by notes, bonds, debentures, credit agreements or similar
agreements or investments, (c) all obligations of the Person under conditional
sale or other title retention agreements relating to property or assets
purchased by the Person, (d) all obligations of the Person under capitalized
leases, (e) all obligations of the Person in respect of acceptances, letters of
credit or letters of guaranty issued or created for the account of the Person,
and (f) all liabilities secured by any Security Interest on any property owned
by the Person, whether or not the Person has assumed or otherwise become liable
for the payment thereof.
"INDEMNIFIED PARTY" has the meaning set forth in Section 8(d)(i) below.
"INDEMNIFYING PARTY" has the meaning set forth in Section 8(d)(i)
below.
"LIABILITY" means any liability (whether known or unknown, whether
asserted or unasserted, whether absolute or contingent, whether accrued or
unaccrued, whether liquidated or unliquidated, and whether due or to become
due), including any liability for Taxes.
"ORDINARY COURSE OF BUSINESS" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity and
frequency).
"PARTIES" has the meaning set forth in the preface above.
"PERSON" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization, or a governmental entity (or any
department, agency, or political subdivision thereof).
"PURCHASE PRICE" has the meaning set forth in Section 2(b) below.
EXHIBIT 1.1-2
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITY INTEREST" means any adverse claim, mortgage, pledge, lien,
encumbrance, option, restriction on transfer, easement, right of way, matter of
survey, charge, or other security interest.
"SELLER" has the meaning set forth in the preface above.
"SHARES" means any share of the common stock, par value $0.001 per
share, of the Company.
"SUBSIDIARY" means any corporation with respect to which a specified
Person (or a Subsidiary thereof) owns a majority of the common stock or has the
power to vote or direct the voting of sufficient securities to elect a majority
of the directors.
"TAX" means any federal, state or local income, gross receipts,
license, payroll, employment, excise, severance, stamp, occupation, premium,
windfall profits, environmental (including taxes under Code Section 59A),
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.
"TAX LIABILITY" has the meaning set forth in Section 4(h)(iii) above.
"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.
"THIRD PARTY CLAIM" has the meaning set forth in Section 8(d)(i) above.
2. PURCHASE AND SALE OF SHARES.
(a) BASIC TRANSACTION. On and subject to the terms and conditions of
this Agreement, the Buyer shall purchase from the Seller, and the Seller shall
sell to the Buyer, all of the issued and outstanding shares (the "Shares") for
the consideration specified below in this Section 2.
(b) ESCROWED AMOUNT. The Buyer has deposited $25,000 (the "Escrow
Amount") into escrow with the Buyer's counsel (the "Escrow Agent"). The Escrow
Agent shall hold the Escrow Amount in trust for the benefit of the Buyer until
the Closing, as defined. The Escrow Amount shall be distributed to the Seller at
the Closing as the Purchase Price. If this Agreement is terminated, if the
Seller fails to satisfy a condition precedent to the Buyer's obligation to close
or if for any other reason the Closing does not occur (other than due to the
Buyer's breach of any material provision of this Agreement), then the Escrow
EXHIBIT 1.1-3
Agent shall immediately return the Escrow Amount to the Buyer. If this Agreement
is terminated as the result of the Buyer's breach of a material provision of
this Agreement, then the Escrow Amount may be released to the Seller in
satisfaction of any claims that the Seller may have against the Buyer for the
material breach.
(c). PURCHASE PRICE. The Buyer shall pay to the Seller at the Closing
$25,000, subject to adjustment as described in Section 2(f) below, by directing
the Escrow Agent to deliver the Escrow Amount to the Seller.
(d) THE CLOSING. The Closing of the transactions contemplated by this
Agreement shall occur by facsimile and overnight delivery service on the first
business day following the satisfaction or waiver of all conditions to the
obligations of the Parties to consummate the transactions contemplated hereby
(other than conditions with respect to actions the respective Parties shall take
at the Closing itself) or such other date as the Buyer and the Seller may
mutually determine (the "Closing Date).
(e) DELIVERIES AT THE CLOSING. At the Closing, (i) the Seller shall
deliver to the Buyer the various certificates, instruments, and documents
referred to in Section 7(a) below, (ii) the Buyer shall deliver to the Seller
the various certificates, instruments, and documents referred to in Section 7(b)
below, (iii) the Seller shall deliver to the Buyer stock certificates
representing all of the Shares, endorsed in blank or accompanied by duly
executed assignment documents and including a medallion guarantee, and (iv) the
Buyer shall deliver to the Seller the consideration specified in Section 2(b)
above.
(f) ADJUSTMENT FOR OUTSTANDING INDEBTEDNESS. The Purchase Price shall
be decreased by the amount of any outstanding Indebtedness and Liabilities of
the Company existing as of the Closing Date.
3. REPRESENTATIONS AND WARRANTIES CONCERNING THE TRANSACTION.
(a) REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller represents
and warrants to the Buyer that the statements contained in this Section 3(a) are
correct and complete as of the date of this Agreement and shall be correct and
complete as of the Closing Date (as though made then and as though the Closing
Date were substituted for the date of this Agreement throughout this Section
3(a)) with respect to himself or itself.
(i) AUTHORIZATION OF TRANSACTION. The Seller has full power
and authority to execute and deliver this Agreement and to perform its
obligations hereunder. This Agreement constitutes the valid and legally binding
obligation of the Seller, enforceable in accordance with its terms and
conditions. Theo Seller need not give any notice to, make any filing with, or
obtain any authorization, consent, or approval of any Governmental Authority in
order to consummate the transactions contemplated by this Agreement.
(ii) NONCONTRAVENTION. Neither the execution and the delivery
of this Agreement, nor the consummation of the transactions contemplated hereby,
shall (A) violate any constitution, statute, regulation, rule, injunction,
judgment, order, decree, ruling, charge, or other restriction of any
Governmental Authority to which the Seller is subject, or (B) conflict with,
result in a breach of, constitute a default under, result in the acceleration
of, create in any party the right to accelerate, terminate, modify, or cancel,
EXHIBIT 1.1-4
or require any notice under any agreement, contract, lease, license, instrument,
or other arrangement to which the Seller is a party or by which it is bound or
to which any of its assets is subject.
(iii) BROKERS' FEES. The Seller has no Liability or
obligation to pay any fees or commissions to any broker, finder, or agent with
respect to the transactions contemplated by this Agreement for which the Buyer
could become liable or obligated.
(iv) SHARES. The Seller holds of record and owns
beneficially all outstanding Shares free and clear of any restrictions on
transfer (other than any restrictions under the Securities Act and state
securities laws), Taxes, Security Interests, options, warrants, purchase rights,
contracts, commitments, equities, claims, and demands. The Seller is not a party
to any option, warrant, purchase right, or other contract or commitment that
could require the Seller to sell, transfer, or otherwise dispose of any capital
stock of the Company (other than this Agreement). The Seller is not a party to
any voting trust, proxy, or other agreement or understanding with respect to the
voting of any capital stock of the Company. The Shares were duly and validly
issued and are fully-paid and non-assessable. Upon delivery of the Shares to the
Buyer pursuant to this Agreement, the Buyer shall acquire valid title thereto,
free and clear of any Security Interests.
(b) Representations and Warranties of the Buyer. The Buyer represents
and warrants to the Seller that the statements contained in this Section 3(b)
are correct and complete as of the date of this Agreement and shall be correct
and complete as of the Closing Date (as though made then and as though the
Closing Date were substituted for the date of this Agreement throughout this
Section 3(b)).
(i) AUTHORIZATION OF TRANSACTION. The Buyer has full power and
authority to execute and deliver this Agreement and to perform its respective
obligations hereunder. This Agreement constitutes the valid and legally binding
obligation of the Buyer, enforceable in accordance with its terms and
conditions. The Buyer need not give any notice to, make any filing with, or
obtain any authorization, consent, or approval of any Governmental Authority in
order to consummate the transactions contemplated by this Agreement.
(ii) NONCONTRAVENTION. Neither the execution and the delivery
of this Agreement, nor the consummation of the transactions contemplated hereby,
shall (A) violate any constitution, statute, regulation, rule, injunction,
judgment, order, decree, ruling, charge, or other restriction of any
Governmental Authority to which the Buyer is subject, or (B) conflict with,
result in a breach of, constitute a default under, result in the acceleration
of, create in any party the right to accelerate, terminate, modify, or cancel,
or require any notice under any agreement, contract, lease, license, instrument,
or other arrangement to which the Buyer is a party or by which it is bound or to
which any of its assets is subject.
(iii) BROKERS' FEES. The Buyer has no Liability or
obligation to pay any fees or commissions to any broker, finder, or agent with
respect to the transactions contemplated by this Agreement for which the Seller
could become liable or obligated.
EXHIBIT 1.1-5
(iv) I have acquired the Shares for my own account. You have
advised me that the transfer of the Shares to me shall not be registered under
the Securities Act and applicable state securities laws, and that in not
registering the Shares you have relied upon my representations to you set forth
in this Agreement. The Shares were acquired by me for my own account for
investment and not with a view to, or for resale in connection with, the
distribution thereof. I have no present intention of reselling or distributing
them after any period of time. I do not have any contract, undertaking,
agreement or arrangement with any person to sell or transfer to the persons or
to any third person any of the Shares. My acquisition of the Shares for
investment is consistent with my financial needs.
4. REPRESENTATIONS AND WARRANTIES CONCERNING THE COMPANY AND ITS
SUBSIDIARIES. The Seller and Tay, each represents and warrants to the Buyer that
the statements contained in this Section 4 are correct and complete as of the
date of this Agreement and shall be correct and complete as of the Closing Date
(as though made then and as though the Closing Date were substituted for the
date of this Agreement throughout this Section 4) shall:
(a) SEC REPORTS. The Company has filed all reports, registration
statements, definitive proxy statements and other documents and all amendments
thereto and supplements thereof required to be filed by it with the Securities
and Exchange Commission (the "SEC Reports"), all of which have complied in all
respects with the applicable requirements of the Exchange Act, and the rules and
regulations promulgated thereunder. As of the respective dates of filing in
final or definitive form (or, if amended or superseded by a subsequent filing,
then on the date of the subsequent filing), none of the Company's SEC Reports
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances in which they were made, not misleading.
(b) ORGANIZATION OF COMPANY; NO SUBSIDIARIES. The Company is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Delaware. The Company is duly authorized to conduct
business and is in good standing under the laws of each jurisdiction where the
qualification is required. The Company has full corporate power and authority
and all licenses, permits, and authorizations necessary to carry on its
business. The Company has no Subsidiaries and does not control, directly or
indirectly, or have any direct or indirect equity participation in any entity.
The Seller has delivered to the Buyer true, correct and complete copies of the
Certificate of Incorporation and Bylaws of the Company, as amended through the
date hereof.[Need]
(c) CAPITALIZATION; NO RESTRICTIVE AGREEMENTS. The Company's authorized
capital stock, as of the date of this Agreement, consists of 100,000,000 Shares,
$0.001 par value per share, of which 5,000,000 Shares are issued and outstanding
and 20,000,000 shares of preferred stock, $0.001 par value per share, none of
which are issued and outstanding. The Company has not reserved any Shares for
issuance upon the exercise of options, warrants or any other securities that are
exercisable or exchangeable for, or convertible into, capital stock. All of the
issued and outstanding Shares are validly issued, fully paid and non-assessable
and have been issued in compliance with applicable laws, including, without
limitation, applicable federal and state securities laws. There are no
EXHIBIT 1.1-6
outstanding options, warrants or other rights of any kind to acquire any
additional shares of capital stock of the Company or securities exercisable or
exchangeable for, or convertible into, capital stock of the Company, nor is the
Company committed to issue any the option, warrant, right or security. There are
no agreements relating to the voting, purchase or sale of capital stock (i)
between or among the Company and any of its stockholders, or (ii) between or
among the Seller and any third party. The Company is not a party to any
agreement granting any stockholder of the Company the right to cause the Company
to register shares of the capital stock of the Company held by the stockholder
under the Securities Act.
(d) FINANCIAL STATEMENTS. The Seller has provided to the Purchaser the
audited balance sheet and statements of income, changes in stockholders' equity
and cash flows as of and for the period ended April 13, 2001 (the "Financial
Statements"). The Financial Statements have been prepared in accordance with
United States generally accepted accounting principles applied on a consistent
basis, fairly present the financial condition, results of operations and cash
flows of the Company as of the respective dates thereof and for the periods
referred to therein and are consistent with the books and records of the
Company. The Company does not have any liability (whether known or unknown,
whether asserted or unasserted, whether absolute or contingent, whether accrued
or unaccrued, whether liquidated or unliquidated, and whether due or to become
due), including any liability for taxes, except for liabilities expressly
specified in the Financial Statements (none of which results from, arises out
of, relates to, is in the nature of, or was caused by any breach of contract,
breach of warranty, tort, infringement, or violation of law). The Company shall
have no Liabilities as of the Closing.
(e) ABSENCE OF CERTAIN CHANGES. Since September 30, 2001, there has not
been any event or condition of any character which has adversely affected, or
may be expected to adversely affect, the Company's business or prospects,
including, but not limited to any adverse change in the financial condition,
assets, liabilities (existing or contingent), prospects or business of the
Company from that shown in the Financial Statements.
(f) LEGAL PROCEEDINGS. Except as disclosed in the SEC Reports, as of
the date of this Agreement, there is no investigation, inquiry or similar
governmental proceeding and there is no legal, administrative, regulatory or
similar action, suit, claim or proceeding which is pending or threatened against
the Company which, if determined adversely to the Company, could have,
individually or in the aggregate, a material adverse effect on the financial
condition, assets, liabilities (existing or contingent), prospects or business
of the Company or which in any manner challenges or seeks to prevent, enjoin,
alter or delay the transactions contemplated by this Agreement.
(g) LEGAL COMPLIANCE. The Company has complied in all material respects
with all applicable laws (including rules, regulations, codes, plans,
injunctions, judgments, orders, decrees, rulings, and charges thereunder) of all
Governmental Authorities, and no action, suit, proceeding, hearing,
investigation, charge, complaint, claim, demand, or notice has been filed or
commenced against the Company alleging any failure so to comply. Neither the
Company, nor any officer, director, employee, consultant or agent of the Company
EXHIBIT 1.1-7
has made, directly or indirectly, any payment or promise to pay, or gift or
promise to give or authorized the a promise or gift, of any money or anything of
value, directly or indirectly, to any governmental official, customer or
supplier for the purpose of influencing any official act or decision of the
official, customer or supplier or inducing him, her or it to use his, her or its
influence to affect any act or decision of a governmental authority or customer,
under circumstances which could subject the Company or any officers, directors,
employees or consultants of the Company to administrative or criminal penalties
or sanctions.
(h) TAX MATTERS.
(i) Each of the Company and its Subsidiaries has filed all Tax
Returns that it was required to file. All the Tax Returns were correct and
complete in all respects. All Taxes owed by any of the Company and its
Subsidiaries have been paid. None of the Company and its Subsidiaries is
currently 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 any
of the Company and its Subsidiaries does not file Tax Returns that it is or may
be subject to taxation by that jurisdiction. There are no Security Interests on
any of the assets of any of the Company and its Subsidiaries that arose in
connection with any failure (or alleged failure) to pay any Tax.
(ii) Each of the Company and its Subsidiaries 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,
stockholder, or other third party.
(iii) The Controlling Stockholder does not 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 Liability with
respect to any Taxes (a "Tax Liability") of any of the Company and its
Subsidiaries either (A) claimed or raised by any authority in writing or (B) as
to which the Seller or Tay has knowledge based upon personal contact with any
agent of the authority. No tax returns of the Company have ever been audited or
are currently the subject of an audit. The Seller has delivered to the Buyer
correct and complete copies of all federal and state income and other material
Tax Returns, examination reports, and statements of deficiencies assessed
against or agreed to by any of the Company and its Subsidiaries since inception.
(iv) None of the Company and its Subsidiaries has waived any
statute of limitations in respect of Taxes or agreed to any extension of time
with respect to a Tax assessment or deficiency.
(v) None of the Company and its Subsidiaries has filed a
consent under Code section 341(f) concerning collapsible corporations. None of
the Company and its Subsidiaries has made any payments, is obligated to make any
payments, or is a party to any agreement that under certain circumstances could
obligate it to make any payments that shall not be deductible under Code Section
280G. None of the Company and its Subsidiaries has been a United States real
property holding corporation within the meaning of Code Section 897(c)(2) during
the applicable period specified in Code Section 897(c)(1)(A)(ii). None of the
Company and its Subsidiaries is a party to any Tax allocation or sharing
agreement. None of the Company and its Subsidiaries (A) is and has been a member
of an Affiliated Group filing a consolidated federal income Tax Return (other
than a group the common parent of which was the Company) and (B) has any
EXHIBIT 1.1-8
Liability for the Taxes of any Person (other than any of the Company and its
Subsidiaries) under Regulation Section 1.1502-6 (or any similar provision of
state, local, or foreign law), as a transferee or successor, by contract, or
otherwise.
(i) DISCLOSURE. No representation or warranty by the Seller and Tay
contained in this Agreement, and no statement contained in the any document,
certificate or other instrument delivered or to be delivered by or on behalf of
the Seller and Tay pursuant to this Agreement, contains or shall contain any
untrue statement of a material fact or omit or shall omit to state any material
fact necessary, in light of the circumstances under which it was or shall be
made, in order to make the statements herein or therein not misleading.
5. PRE-CLOSING COVENANTS. The Parties agree as follows with respect to
the period between the execution of this Agreement and the Closing:
(a) GENERAL. Each of the Parties shall use his or its best efforts to
take all action and to do all things necessary, proper, or advisable in order to
consummate and make effective the transactions contemplated by this Agreement
(including satisfaction, but not waiver, of the closing conditions set forth in
Section 7 below).
(b) NOTICES AND CONSENTS. The Seller shall cause the Company to give
any notices to third parties, and shall cause the Company to use its best
efforts to obtain any third party consents, that the Buyer may request. Each of
the Parties shall (and the Seller shall cause the Company to) give any notices
to, make any filings with, and use its best efforts to obtain any
authorizations, consents, and approvals of Governmental Authorities necessary in
order to consummate the transactions contemplated hereby.
(c) OPERATION OF BUSINESS. The Seller shall not cause or permit the
Company to engage in any practice, take any action, or enter into any
transaction outside the Ordinary Course of Business. Without limiting the
generality of the foregoing, the Seller shall not cause or permit any of the
Company and its Subsidiaries to (i) declare, set aside, or pay any dividend or
make any distribution with respect to its capital stock or redeem, purchase, or
otherwise acquire any of its capital stock except as otherwise expressly
specified herein, (ii) issue, sell, or otherwise dispose of any of its capital
stock, or grant any options, warrants, preemptive or other rights to purchase or
obtain (including upon conversion, exchange, or exercise) any of its capital
stock, (iii) make any capital expenditures, loans, or incur any other
obligations or liabilities, (iv) enter into any agreements involving
expenditures individually, or in the aggregate, of more than $1,000 (other than
agreements for professional services which shall be paid in full at or prior to
the Closing) or (ii) otherwise engage in any practice, take any action, or enter
into any transaction out of the ordinary course of business.
(d) PRESERVATION OF BUSINESS. The Seller shall cause the Company to
keep its business and properties substantially intact, including the filing of
all reports required to be filed with the Securities and Exchange Commission in
order to maintain the Company's status as a reporting company.
EXHIBIT 1.1-9
(e) FULL ACCESS. The Seller shall permit, and the Seller shall cause
each of the Company and its Subsidiaries to permit, representatives of the Buyer
to have full access at all reasonable times, to all premises, properties,
personnel, accountants, customers, suppliers, third party lenders and other
third parties whose consent is required in order to consummate the transactions
contemplated hereby, books, records (including Tax records), contracts, and
documents of or pertaining to each of the Company and its Subsidiaries.
(f) NOTICE OF DEVELOPMENTS. The Seller shall give prompt written notice
to the Buyer of any material adverse development causing a breach of any of the
representations and warranties in Section 4 above. Each Party shall give prompt
written notice to the others of any material adverse development causing a
breach of any of his own representations and warranties in Section 3 above. No
disclosure by any Party pursuant to this Section 5(f), however, shall be deemed
to amend or supplement the representations and warranties or to prevent or cure
any misrepresentation, breach of warranty, or breach of covenant.
(g) EXCLUSIVITY. None of the Seller and Tay shall (and the Seller and
Tay shall not cause or permit any of the Company and its Subsidiaries to) (i)
solicit, initiate, or encourage the submission of any proposal or offer from any
Person relating to the acquisition of any capital stock or other voting
securities, or any assets (other than dispositions of inventory or other assets
in the Ordinary Course of Business) (including any acquisition structured as a
merger, consolidation, or share exchange) or (ii) participate in any discussions
or negotiations regarding, furnish any information with respect to, assist or
participate in, or facilitate in any other manner any effort or attempt by any
Person to do or seek any of the foregoing. None of the Seller and Tay shall vote
their Shares in favor of any the acquisition structured as a merger,
consolidation, or share exchange. The Seller and Tay shall notify the Buyer
immediately if any Person makes any proposal, offer, inquiry, or contact with
respect to any of the foregoing.
6. POST-CLOSING COVENANTs. The Parties agree as follows with respect to
the period following the Closing:
(a) GENERAL. In case at any time after the Closing any further action
is necessary or desirable to carry out the purposes of this Agreement, each of
the Parties shall take the further action (including the execution and delivery
of the further instruments and documents) as any other Party may request, all at
the sole cost and expense of the requesting Party (unless the requesting Party
is entitled to indemnification therefor under Section 8 below). The Seller
acknowledge and agree that from and after the Closing the Buyer shall be
entitled to possession of all documents, books, records (including Tax records),
agreements, and financial data of any sort relating to the Company.
(b) LITIGATION SUPPORT. In the event and for so long as any Party
actively is contesting or defending against any action, suit, proceeding,
hearing, investigation, charge, complaint, claim, or demand in connection with
(i) any transaction contemplated under this Agreement or (ii) any fact,
situation, circumstance, status, condition, activity, practice, plan,
occurrence, event, incident, action, failure to act, or transaction on or prior
to the Closing Date involving any of the Company and its Subsidiaries, each of
the other Parties shall cooperate with him or it and his or its counsel in the
contest or defense, make available their personnel, and provide the testimony
EXHIBIT 1.1-10
and access to their books and records as shall be necessary in connection with
the contest or defense, all at the sole cost and expense of the contesting or
defending Party (unless the contesting or defending Party is entitled to
indemnification therefor under Section 8 below).
(c) TRANSITION. The Seller shall not take any action that is designed
or intended to have the effect of discouraging any lessor, licenser, customer,
supplier, or other business associate of the Company from maintaining the same
business relationships with the Company after the Closing as it maintained with
the Company prior to the Closing.
(d) FINANCIAL INFORMATION. The Seller shall cooperate with the Buyer
and the Buyer' independent certified public accounting firm in order to enable
the Buyer to create audited financial statements prepared in accordance with the
GAAP for the period preceding the Closing Date by making available the Seller'
records as they are maintained in the ordinary course of business and answering
reasonable questions, the cost for which shall be borne by the Buyer.
7. CONDITIONS TO OBLIGATION TO CLOSE.
(a) CONDITIONS TO OBLIGATION OF THE BUYER. The obligation of the Buyer
to consummate the transactions to be performed by them in connection with the
Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Sections
3(a) and 4 above shall be true and correct in all material respects at and as of
the Closing Date;
(ii) the Seller ands Tay shall have performed and complied
with all of their covenants hereunder in all material respects through the
Closing and timely delivered to the National Association of Securities Dealers,
Inc. the notice required by Rule 10b-17 under the Exchange Act;
(iii) the Company shall have procured all of the third party
consents specified in Section 5(b) above;
(iv) no action, suit, or proceeding shall be pending or
threatened before any court or quasi-judicial or administrative agency of any
federal, state, local, or foreign jurisdiction or before any arbitrator wherein
an unfavorable injunction, judgment, order, decree, ruling, or charge would (A)
prevent consummation of any of the transactions contemplated by this Agreement,
(B) cause any of the transactions contemplated by this Agreement to be rescinded
following consummation, (C) affect adversely the right of the Buyer to own the
Shares and to control the Company and its Subsidiaries, or (D) affect adversely
the right of any of the Company and its Subsidiaries to own its assets and to
operate its businesses (and no the injunction, judgment, order, decree, ruling,
or charge shall be in effect);
(v) the Seller shall have delivered to the Buyer a certificate
to the effect that each of the conditions specified in this Section 7(a) is
satisfied in all respects;
EXHIBIT 1.1-11
(vi) the Company shall have received all other authorizations,
consents, and approvals of the Governmental Authorities referred to in Sections
3(a)(ii) and 3(b)(ii) above;
(vii) the Buyer shall have received the resignations,
effective as of the Closing, of each director and officer of the Company and the
designees specified by the Buyer shall have been appointed as officers and
directors of the Company and the Company shall have complied with Rule 14f-1 of
the Exchange Act in connection with the change of directors;
(viii) there shall not have been any occurrence, event,
incident, action, failure to act, or transaction since September 30, 2001 which
has had or is reasonably likely to cause a material adverse effect on the
business, assets, properties, financial condition, results of operations or
prospects of any of the Company;
(ix) the Buyer shall have completed its business, accounting
and legal due diligence review of the Company and the results thereof shall be
reasonably satisfactory to the Buyer;
(x) the Buyer shall have received the pay-off letters and
releases relating to Indebtedness and Liabilities as it shall have requested and
the pay-off letters shall be in form and substance satisfactory to them;
(xi) the Buyer shall have received UCC, judgment lien and tax
lien searches with respect to the Company, the results of which indicate no
liens on the assets of the Company;
(xii) the Company shall have delivered evidence reasonably
satisfactory to Buyer of the Company's corporate organization and proceedings
and its existence in each jurisdiction in which it is incorporated or qualified
to do business, including evidence of the existence as of the Closing and the
Company shall have delivered to the Buyer the Company's original minute book and
corporate seal and all other original corporate documents;
(xiii) the Company shall have filed all of the reports
required to be filed under the Exchange Act during the 12 months preceding the
Closing (or the shorter period as the Company was required to file the reports)
and the Company shall have otherwise met all of the requirements of Rule 144(c)
of the Securities Act; and
(xiv) all actions to be taken by the Seller in connection with
consummation of the transactions contemplated hereby and all certificates,
opinions, instruments, and other documents required to effect the transactions
contemplated hereby shall be satisfactory in form and substance to the Buyer.
The Buyer may waive any condition specified in this Section 7(a) if it executes
a written instrument so stating at or prior to the Closing.
EXHIBIT 1.1-12
(b) CONDITIONS TO OBLIGATION OF THE SELLER. The obligation of the
Seller to consummate the transactions to be performed by it in connection with
the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section
3(b) above shall be true and correct in all material respects at and as of the
Closing Date;
(ii) the Buyer shall have performed and complied with all of
its covenants hereunder in all material respects through the Closing;
(iii) no action, suit, or proceeding shall be pending or
threatened before any court or quasi-judicial or administrative agency of any
federal, state, local, or foreign jurisdiction or before any arbitrator wherein
an unfavorable injunction, judgment, order, decree, ruling, or charge would (A)
prevent consummation of any of the transactions contemplated by this Agreement
or (B) cause any of the transactions contemplated by this Agreement to be
rescinded following consummation (and no the injunction, judgment, order,
decree, ruling, or charge shall be in effect);
(iv) the Buyer shall have delivered to the Seller a
certificate to the effect that each of the conditions specified above in Section
7(b)(i)-(iii) is satisfied in all respects;
(v) the Company shall have received all authorizations,
consents, and approvals of the Governmental Authorities referred to in Sections
3(a)(ii) andss.3(b)(ii) above;
(vi) all actions to be taken by the Buyer in connection with
consummation of the transactions contemplated hereby and all certificates,
opinions, instruments, and other documents required to effect the transactions
contemplated hereby shall be satisfactory in form and substance to the Seller;
The Seller may waive any condition specified in this Section 7(b) if it executes
a written instrument so stating at or prior to the Closing.
8. REMEDIES FOR BREACHES OF THIS AGREEMENT.
(a) SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
All of the representations and warranties of the Parties, other than
the representations and warranties contained in Sections 3 (a)(i), (ii) and
(iv), 4 (c) and 4 (h) shall survive the Closing hereunder (even if the Buyer
knew or had reason to know of any misrepresentation or breach of warranty at the
time of Closing) and continue in full force and effect for a period of three
years thereafter. The representations and warranties of the Seller contained in
Sections 3(a)(i), (ii) and (iv), 4(c) and 4(h) shall survive the Closing (even
if the Seller knew or had reason to know of any misrepresentation or breach of
warranty at the time of Closing) and continue in full force and effect forever
thereafter (subject to any applicable statutes of limitations).
EXHIBIT 1.1-13
(b) INDEMNIFICATION PROVISIONS FOR BENEFIT OF THE BUYER.
(i) In the event the Seller breaches (or in the event any
third party alleges facts that, if true, would mean the Seller has breached) any
of its representations, warranties, and covenants contained herein, and, if
there is an applicable survival period pursuant to Section 8(a) above, provided
that the Buyer makes a written claim for indemnification against the Seller
pursuant to Section 11(h) below within the survival period, then the Seller and
Tay shall indemnify the Buyer from and against the entirety of any Adverse
Consequences the Buyer may suffer through and after the date of the claim for
indemnification (including any Adverse Consequences the Buyer may suffer after
the end of any applicable survival period) resulting from, arising out of,
relating to, in the nature of, or caused by the breach (or the alleged breach).
(ii) The Seller and Tay shall indemnify the Buyer from and
against the entirety of any Adverse Consequences the Buyer may suffer resulting
from, arising out of, relating to, in the nature of, or caused by any Liability
of any of the Company and its Subsidiaries (whether or not accrued or otherwise
disclosed) (x) for any Taxes of the Company and its Subsidiaries with respect to
any Tax year or portion thereof ending on or before the Closing Date (or for any
Tax year beginning before and ending after the Closing Date to the extent
allocable (determined in a manner consistent with Section 9(b)) to the portion
of the period beginning before and ending on the Closing Date) and (y) for the
unpaid Taxes of any Person (other than any of the Company and its Subsidiaries)
under Reg. Section 1.1502-6 (or any similar provision of state, local, or
foreign law), as a transferee or successor, by contract, or otherwise.
(iii) The Seller and Tay shall indemnify the Buyer from and
against the entirety of any Adverse Consequences the Buyer may suffer resulting
from, arising out of, relating to, in the nature of, or caused by (A) any
Liabilities arising out of the ownership of the capital stock of, or the use or
operation of the business of, the Company or any of its Subsidiaries prior to
the Closing and (B) any other business or operations (other than of the Company
and its Subsidiaries) owned in whole or in part by any of the Seller.
(iv) The Seller and Tay shall indemnify the Buyer from and
against the entirety of any Adverse Consequences the Buyer may suffer resulting
from, arising out of, relating to, in the nature of, or caused by any
Indebtedness of the Company or any Subsidiary existing as of the Closing Date.
(c) INDEMNIFICATION PROVISIONS FOR BENEFIT OF THE SELLER. In the event
the Buyer breaches (or in the event any third party alleges facts that, if true,
would mean the Buyer have breached) any of its representations, warranties, and
covenants contained herein, and, if there is an applicable survival period
pursuant to Section 8(a) above, provided that the Seller makes a written claim
for indemnification against the Buyer pursuant to Section 11(h) below within the
survival period, then the Buyer shall indemnify the Seller from and against the
entirety of any Adverse Consequences the Seller may suffer through and after the
date of the claim for indemnification (including any Adverse Consequences the
Seller may suffer after the end of any applicable survival period) resulting
from, arising out of, relating to, in the nature of, or caused by the breach (or
the alleged breach).
EXHIBIT 1.1-14
(d) MATTERS INVOLVING THIRD PARTIES.
(i) If any third party shall notify any Party (the
"Indemnified Party") with respect to any matter (a "Third Party Claim") which
may give rise to a claim for indemnification against any other Party (the
"Indemnifying Party") under this Section 8, then the Indemnified Party shall
promptly notify each Indemnifying Party thereof in writing; provided, however,
that no delay on the part of the Indemnified Party in notifying any Indemnifying
Party shall relieve the Indemnifying Party from any obligation hereunder unless
(and then solely to the extent) the Indemnifying Party thereby is prejudiced.
(ii) Any Indemnifying Party shall have the right to defend the
Indemnified Party against the Third Party Claim with counsel of its choice
reasonably satisfactory to the Indemnified Party so long as (A) the Indemnifying
Party notifies the Indemnified Party in writing within 10 days after the
Indemnified Party has given notice of the Third Party Claim that the
Indemnifying Party shall indemnify the Indemnified Party from and against the
entirety of any Adverse Consequences the Indemnified Party may suffer resulting
from, arising out of, relating to, in the nature of, or caused by the Third
Party Claim, (B) the Indemnifying Party provides the Indemnified Party with
evidence reasonably acceptable to the Indemnified Party that the Indemnifying
Party shall have the financial resources to defend against the Third Party Claim
and fulfill its indemnification obligations hereunder, (C) the Third Party Claim
involves only money damages and does not seek an injunction or other equitable
relief, (D) settlement of, or an adverse judgment with respect to, the Third
Party Claim is not, in the good faith judgment of the Indemnified Party, likely
to establish a precedential custom or practice adverse to the continuing
business interests of the Indemnified Party, and (E) the Indemnifying Party
conducts the defense of the Third Party Claim actively and diligently.
(iii) So long as the Indemnifying Party is conducting the
defense of the Third Party Claim in accordance with Section 8(d)(ii) above, (A)
the Indemnified Party may retain separate co-counsel at its sole cost and
expense and participate in the defense of the Third Party Claim, (B) the
Indemnified Party shall not consent to the entry of any judgment or enter into
any settlement with respect to the Third Party Claim without the prior written
consent of the Indemnifying Party (not to be withheld unreasonably), and (C) the
Indemnifying Party shall not consent to the entry of any judgment or enter into
any settlement with respect to the Third Party Claim without the prior written
consent of the Indemnified Party (not to be withheld unreasonably).
(iv) In the event any of the conditions in Section 8(d)(ii)
above is or becomes unsatisfied, however, (A) the Indemnified Party may defend
against, and consent to the entry of any judgment or enter into any settlement
with respect to, the Third Party Claim in any manner it reasonably may deem
appropriate (and the Indemnified Party need not consult with, or obtain any
consent from, any Indemnifying Party in connection therewith), (B) the
Indemnifying Parties shall reimburse the Indemnified Party promptly and
periodically for the costs of defending against the Third Party Claim (including
attorneys' fees and expenses), and (C) the Indemnifying Parties shall remain
responsible for any Adverse Consequences the Indemnified Party may suffer
resulting from, arising out of, relating to, in the nature of, or caused by the
Third Party Claim to the fullest extent provided in this Section 8.
EXHIBIT 1.1-15
(e) OTHER INDEMNIFICATION PROVISIONS. The Seller and Tay hereby agree
that it or he shall not make any claim for indemnification against any of the
Company and its Subsidiaries by reason of the fact that it or he was a director,
officer, employee, or agent of any the entity or was serving at the request of
any the entity as a partner, trustee, director, officer, employee, or agent of
another entity (whether the claim is for judgments, damages, penalties, fines,
costs, amounts paid in settlement, losses, expenses, or otherwise and whether
the claim is pursuant to any statute, charter document, bylaw, agreement, or
otherwise) with respect to any action, suit, proceeding, complaint, claim, or
demand brought by the Buyer against the Seller or Tay (whether the action, suit,
proceeding, complaint, claim, or demand is pursuant to this Agreement,
applicable law, or otherwise).
9. TAX MATTERS. The following provisions shall govern the allocation of
responsibility as between the Buyer and the Seller for certain tax matters
following the Closing Date:
(a) TAX PERIODS ENDING ON OR BEFORE THE CLOSING DATE. The Buyer shall
prepare or cause to be prepared and file or cause to be filed all Tax Returns
for the Company for all periods ending on or prior to the Closing Date which are
filed after the Closing Date. The Buyer shall permit the Seller to review and
comment on each the Tax Return described in the preceding sentence prior to
filing.
(b) TAX PERIODS BEGINNING BEFORE AND ENDING AFTER THE CLOSING DATE. The
Buyer shall prepare or cause to be prepared and file or cause to be filed any
Tax Returns of the Company for Tax periods which begin before the Closing Date
and end after the Closing Date. The Buyer shall permit the Seller to review and
comment on each the Tax Return described in the preceding sentence prior to
filing. The Seller shall pay to the Buyer within 15 days after the date on which
Taxes are paid with respect to the periods an amount equal to the portion of the
Taxes which relates to the portion of the Taxable period ending on the Closing
Date. For purposes of this Section, in the case of any Taxes that are imposed on
a periodic basis and are payable for a Taxable period that includes (but does
not end on) the Closing Date, the portion of the Tax which relates to the
portion of the Taxable period ending on the Closing Date shall (x) in the case
of any Taxes other than Taxes based upon or related to income or receipts, be
deemed to be the amount of the Tax for the entire Taxable period multiplied by a
fraction the numerator of which is the number of days in the Taxable period
ending on the Closing Date and the denominator of which is the number of days in
the entire Taxable period, and (y) in the case of any Tax based upon or related
to income or receipts, be deemed equal to the amount which would be payable if
the relevant Taxable period ended on the Closing Date. Any credits relating to a
Taxable period that begins before and ends after the Closing Date shall be taken
into account as though the relevant Taxable period ended on the Closing Date.
All determinations necessary to give effect to the foregoing allocations shall
be made in a manner consistent with prior practice of the Company.
EXHIBIT 1.1-16
(c) COOPERATION ON TAX MATTERS.
(i) The Buyer, the Company and the Seller shall cooperate
fully, as and to the extent reasonably requested by the other party, in
connection with the filing of Tax Returns pursuant to this Section and any
audit, litigation or other proceeding with respect to Taxes. The cooperation
shall include the retention and (upon the other party's request) the provision
of records and information which are reasonably relevant to any the audit,
litigation or other proceeding and making employees available on a mutually
convenient basis to provide additional information and explanation of any
material provided hereunder. The Company and the Seller agree (A) to retain all
books and records with respect to Tax matters pertinent to the Company and its
Subsidiaries relating to any taxable period beginning before the Closing Date
until the expiration of the statute of limitations (and, to the extent notified
by the Buyer or the Seller, any extensions thereof) of the respective taxable
periods, and to abide by all record retention agreements entered into with any
taxing authority, and (B) to give the other party reasonable written notice
prior to transferring, destroying or discarding any the books and records and,
if the other party so requests, the Company or the Seller, as the case may be,
shall allow the other party to take possession of the books and records.
(ii) The Buyer and the Seller further agree, upon request, to
use their best efforts to obtain any certificate or other document from any
Governmental Authority or any other Person as may be necessary to mitigate,
reduce or eliminate any Tax that could be imposed (including, but not limited
to, with respect to the transactions contemplated hereby) without the imposition
of a countervailing Tax or loss of Tax attributes on or by the Party to whom the
request is directed.
(d) TAX SHARING AGREEMENTS. All tax sharing agreements or similar
agreements with respect to or involving the Company and its Subsidiaries shall
be terminated as of the Closing Date and, after the Closing Date, the Company
and its Subsidiaries shall not be bound thereby or have any liability
thereunder.
(e) CERTAIN TAXES. All transfer, documentary, sales, use, stamp,
registration and other the Taxes and fees (including any penalties and interest)
incurred in connection with this Agreement shall be paid by the Seller when due,
and the Seller shall, at its own expense, file all necessary Tax Returns and
other documentation with respect to all the transfer, documentary, sales, use,
stamp, registration and other Taxes and fees, and, if required by applicable
law, the Buyer shall, and shall cause its affiliates to, join in the execution
of any the Tax Returns and other documentation.
10. TERMINATION.
(a) TERMINATION OF AGREEMENT. Certain of the Parties may terminate this
Agreement as provided below:
(i) the Buyer, the Seller and Tay may terminate this Agreement
by mutual written consent at any time prior to the Closing;
EXHIBIT 1.1-17
(ii) the Buyer may terminate this Agreement by giving written
notice to the Seller on or before the 20th day following the date of this
Agreement if the Buyer is not satisfied with the results of its continuing
business, legal, and accounting due diligence regarding the Company and its
Subsidiaries;
(iii) the Buyer may terminate this Agreement by giving written
notice to the Seller at any time prior to the Closing (A) in the event the
Seller has breached any material representation, warranty, or covenant contained
in this Agreement in any material respect, the Buyer has notified the Seller of
the breach, and the breach has continued without cure for a period of 15 days
after the notice of breach or (B) if the Closing shall not have occurred on or
before January 20, 2002 by reason of the failure of any condition precedent
under Section 7(a) hereof (unless the failure results primarily from the Buyer
themselves breaching any representation, warranty, or covenant contained in this
Agreement); and
(iv) the Seller may terminate this Agreement by giving written
notice to the Buyer at any time prior to the Closing (A) in the event the Buyer
has breached any material representation, warranty, or covenant contained in
this Agreement in any material respect, the Seller has notified the Buyer of the
breach, and the breach has continued without cure for a period of 15 days after
the notice of breach or (B) if the Closing shall not have occurred on or before
January 20, 2002, by reason of the failure of any condition precedent under
Section 7(b) hereof (unless the failure results primarily from any of the Seller
themselves breaching any representation, warranty, or covenant contained in this
Agreement).
(b) EFFECT OF TERMINATION.
(i) If any Party terminates this Agreement pursuant to Section
10(a) above, all rights and obligations of the Parties hereunder shall terminate
without any Liability of any Party to any other Party (except for any Liability
of any Party then in breach).
(ii) If the Buyer terminates this Agreement either (i) as the
result of any of the Seller's, the Company's or any Subsidiary's failure to
comply with Section 5(g) hereof or (ii) pursuant to Section 10(a)(iii)(A), the
Company shall reimburse the Buyer's fees and expenses incurred in connection
with the negotiation of this Agreement and all related agreements and documents
and the transactions contemplated by this Agreement and the related documents,
including attorneys fees, and any due diligence work performed by the Buyer
whether incurred prior to or after the date of this Agreement.
11. MISCELLANEOUS.
(a) RELEASE. The Seller and Tay hereby acknowledge that the Releases
(as defined below) are expressly relying on this release provision in
consummating the transactions contemplated by this Agreement, and would not
consummate the transactions but for this release provision.
The Seller and Tay hereby acknowledges, confirms and agrees that the
Seller (i) is the exclusive owner of the Shares being sold by the Seller to the
EXHIBIT 1.1-18
Buyer hereunder, (ii) does not have any equity interest in the Company other
than the Shares being sold to the Buyer hereunder, and (iii) does not have any
rights to any additional shares of the capital stock or any other securities of
the Company, including any options, warrants, conversion privileges, preemptive
rights or other rights or agreements.
The Seller, on behalf of the Seller's respective Affiliates (if any),
hereby releases and forever discharges the Buyer, the Company and their
respective Affiliates, officers, directors, employees and agents (collectively,
the "Releasees") from any and all claims, demands, judgments, proceedings,
causes of action, orders, obligations, contracts, agreements, liens, accounts,
costs and expenses (including attorney's fees and court costs), debts and
liabilities whatsoever, whether known or unknown, suspected or unsuspected,
matured or unmatured, both at law (including federal and state securities laws)
and in equity, which the Seller or any of the Seller's respective Affiliates now
have, have ever had or may hereafter have against the Releasees arising
contemporaneously with or prior to the date of this Agreement or on account of
or arising out of any matter, cause, event or omission occurring
contemporaneously with or prior to the date of this Agreement, including, but
not limited to, any rights to indemnification or reimbursement from the Company,
whether pursuant to the Company's articles of organization, resolution, contract
or otherwise and whether or not relating to claims pending on, or asserted
after, the date of this Release; provided, however, that nothing contained
herein shall operate to release any obligations of the Buyer to the Seller
arising exclusively as a result of this Agreement.
The Seller hereby irrevocably covenants to refrain from, directly or
indirectly, asserting any claim or demand, or commencing, instituting or causing
to be commenced, any proceeding of any kind against any Releasee, based upon any
matter purported to be released hereby.
Without in any way limiting any of the rights and remedies otherwise
available to any Releasee, the Seller shall indemnify and hold harmless each
Releasee from and against all actions, suits, proceedings, hearings,
investigations, charges, complaints, claims, demands, injunctions, judgments,
orders, decrees, rulings, damages, dues, penalties, fines, costs, amounts paid
in settlement, liabilities, obligations, security interests, taxes, liens,
losses, lost value, expenses and fees arising directly or indirectly from or in
connection with (i) the assertion by or on behalf of the Seller or the Seller's
Affiliates of any claim or other matter purported to be released pursuant to
this provision and (ii) the assertion by any third party of any claim or demand
against any Releasee which claim or demand arises directly or indirectly from,
or in connection with, any assertion by or on behalf of the Seller, or any of
the Seller's Affiliates against any third party of any claims or other matters
purported to be released pursuant to this provision.
(b) PRESS RELEASES AND PUBLIC ANNOUNCEMENTS. No Party shall issue any
press release or make any public announcement relating to the subject matter of
this Agreement without the prior written approval of the Buyer; provided,
however, that any Party may make any public disclosure it believes in good faith
is required by applicable law or any listing or trading agreement concerning its
publicly-traded securities (in which case the disclosing Party shall use its
best efforts to advise the other Parties prior to making the disclosure).
EXHIBIT 1.1-19
(c) NO THIRD-PARTY BENEFICIARIES. This Agreement shall not confer any
rights or remedies upon any Person other than the Parties and their respective
successors and permitted assigns.
(d) ENTIRE AGREEMENT. This Agreement (including the documents referred
to herein) constitutes the entire agreement among the Parties and supersedes any
prior understandings, agreements, or representations by or among the Parties,
written or oral, to the extent they related in any way to the subject matter
hereof.
(e) SUCCESSION AND ASSIGNMENT. This Agreement shall be binding upon and
inure to the benefit of the Parties named herein and their respective successors
and permitted assigns. No Party may assign either this Agreement or any of his
or its rights, interests, or obligations hereunder without the prior written
approval of the Buyer and the Seller; provided, however, that the Buyer may (i)
assign any or all of its rights and interests hereunder to one or more of its
Affiliates or to any other designee, and (ii) designate one or more of its
Affiliates or any other designee to perform its obligations hereunder (in any or
all of which cases the Buyer nonetheless shall remain responsible for the
performance of all of their obligations hereunder).
(f) COUNTERPARTS; FACSIMILE EXECUTION. This Agreement may be executed
in one or more counterparts, each of which shall be deemed an original but all
of which together shall constitute one and the same instrument. Facsimile
execution of this Agreement shall be legal, valid and binding for all purposes.
(g) HEADINGS. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(h) NOTICES. All notices, requests, demands, claims, and other
communications hereunder shall be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly given if it is sent
by Federal Express or other overnight delivery service by next business day
delivery, and addressed to the intended recipient as set forth below:
If to the Seller and Tay:
-------------------------
Dotcom Internet Ventures, Ltd.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇
If to the Buyer:
----------------
Angoeo, Inc.
▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
EXHIBIT 1.1-20
The Escrow Agent:
-----------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Any Party may change the address to which notices, requests, demands, claims,
and other communications hereunder are to be delivered by giving the other
Parties notice in the manner herein set forth.
(i) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Delaware without giving effect
to any choice or conflict of law provision or rule.
(j) AMENDMENTS AND WAIVERS. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by the
Parties. No waiver by any Party of any default, misrepresentation, or breach of
warranty or covenant hereunder, whether intentional or not, shall be deemed to
extend to any prior or subsequent default, misrepresentation, or breach of
warranty or covenant hereunder or affect in any way any rights arising by virtue
of any prior or subsequent the occurrence.
(k) SEVERABILITY. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
(l) EXPENSES. Each of the Parties shall bear his or its own costs and
expenses (including legal fees and expenses) incurred in connection with this
Agreement and the transactions contemplated hereby, except that the Seller and
Tay agree that the Company has not borne or shall bear any of the costs and
expenses (including any legal fees and expenses) in connection with this
Agreement or any of the transactions contemplated hereby.
(m) 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 or local
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.
EXHIBIT 1.1-21
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
Angoeo, Inc., a Florida corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------
President
Dotcom Internet Ventures Ltd., a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇
-----------------
President
/s/ ▇▇▇▇▇▇▇ ▇▇▇
---------------------
▇▇▇▇▇▇▇ ▇▇▇
EXHIBIT 1.1-22
[Escrow Agent Signature Page]
IN WITNESS WHEREOF, the undersigned Escrow Agent has executed this
Agreement as of the date first above written in order to evidence its assent to
Section 2(b) of this Agreement only. The Escrow Agent shall not be bound by any
of the other provisions of this Agreement.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, P.A.
As Escrow Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
EXHIBIT 1.1-23