AMENDED AND RESATED STOCK PURCHASE AGREEMENT
Exhibit
4.1
AMENDED
AND RESATED STOCK
PURCHASE AGREEMENT
AMENDED
AND RESATED STOCK
PURCHASE AGREEMENT
(this
“Agreement”),
entered into as of and effective the 8th day of January
2007,
by and
among Sequiam
Corporation.,
a
California
corporation
(the “Buyer”)
and
▇▇▇▇▇▇▇▇
▇▇▇▇ (the
“Shareholders”
or
“Sellers”),
and
Magstone
Innovation,
Inc.
a
foreign owned Chinese corporation (the “Company”
or
“Magstone”)
operating at Room 508, Tianan
Hi-Tech Venture Center, No. ▇▇▇,▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,▇▇▇▇▇,▇▇▇▇▇▇;
W
I T N E S S E T H:
WHEREAS,
the
Company is engaged in the business of the manufacturing, assembling, packaging
and sale of biometric technology products (the “Business”);
and
WHEREAS,
the
Shareholder,
is
the
recorded owner of one hundred percent (100%) of the issued and outstanding
capital stock of the Company (the “Stock”);
and
WHEREAS,
the
Buyer desires to purchase from the Shareholders, and the Shareholders desire
to
sell to the Buyer, upon the terms and subject to the conditions set forth in
this Agreement the Stock in Exhibit A hereto, and through such Stock a majority
ownership interest in the Business as a going concern; and
NOW,
THEREFORE,
in
consideration of the premises and the mutual covenants herein contained, the
parties hereby agree as of the date hereof, as follows:
1. RECITALS.
The
foregoing recitals are true and accurate and by this reference incorporated
herein.
2. ACQUISITION
OF THE STOCK; CONSIDERATION.
2.1 Purchase
and Sale of Stock. Subject
to the terms and conditions of this Agreement, at the Closing (defined below)
the Buyer shall purchase and acquire from the Shareholders, and the Shareholder
shall sell and transfer to the Buyer eighty
percent (80%) of the
Stock
of
the
Company (“Purchase Shares”),
in
exchange for the consideration provided in Section 2.2. In furtherance thereof,
the Shareholders shall deliver the certificates representing all of their Stock
(duly endorsed for transfer or accompanied by stock powers executed in blank
for
transfer) to Buyer at Closing.
2.2 Consideration..
In
exchange for the
Purchase Shares
owned by
the
Shareholder, the
Buyer
will
issue and deliver to the Shareholder an
Installment Note Payable in the amount of $150,000 bearing interest at 8% per
annum, payable in three quarterly installments of $50,000 beginning April 1,
2007.
The note
is secured by the Magstone shares. Buyer will also agree to repay
Company’s
debt to
ETI Hong Kong for HKD 1,400,000 (approximately $180,000 USD).
As
additional consideration, the Company will distribute to the shareholder prior
to closing the following: Magstone Trademarks and Magstone’s 30% ownership in
the Chinese Joint Venture
known as New Era Biometrics,
except
that the Company will receive from the shareholder a 9% interest in the
distributions received by the shareholder from the Joint Venture for so long
as
▇▇▇▇▇▇▇▇ ▇▇▇▇ serves as President of the Company.
3. CLOSING.
3.1 Closing.
Subject
to the conditions stated in Section 8 and Section 9 and a successful due
diligence of Magstone’s existing business as deemed so by Sequiam Biometrics,
Inc., the closing of the transactions contemplated hereby (the “Closing”)
shall
be held at 10:00 a.m., Eastern Time, on January
8,
2007,
or if
the conditions set forth in Section 8 or Section 9 have not been satisfied
or
waived on such date, on the fifth (5th)
business day after all such conditions have been satisfied or waived (the
“Outside
Closing Date”),
at
the offices of Sequiam
Corporation.
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
or at
such other location, or such earlier or later date or time as the parties may
mutually agree. The date upon which the Closing occurs is hereinafter referred
to as the “Closing
Date.”
3.2 Deliveries
by the Shareholder.
At or
prior to the Closing, the Shareholders shall deliver to the Buyer:
(a) stock
certificates representing the 80%
of the
Stock owned by the sole Shareholder in Magstone, duly endorsed by the
Shareholders or accompanied by executed stock powers;
(b) a
certificate executed by each Shareholder to the effect that the conditions
set
forth in Section 8 have been satisfied;
(c) any
other
documents or instruments deemed reasonably necessary by Buyer or Shareholder
to
consummate the transactions contemplated hereby.
3.3 Deliveries
by Buyer.
(a) the
Promissory
Note
issued
in the name of the sole Shareholder as set forth on Exhibit
A
hereto,;
(b) a
certificate executed by the Buyer to the effect that the conditions set forth
in
Section 9 have been satisfied;
(c) a
copy of
resolutions adopted by Buyer’s Board of Directors authorizing the transactions
contemplated herein and the issuance of the Sequiam Shares;
(d) a
certificate of corporate name change from Magstone Innovation, Inc. to Sequiam
East, Inc.
(e) any
other
documents or instruments deemed reasonably necessary by Buyer or Shareholder
to
consummate the transactions contemplated hereby.
3.4 Ancillary
Documents.
The
following documents may be sometimes referred to herein collectively as the
“Ancillary
Documents”:
any or
all other agreements, instruments or documents required or expressly provided
under this Agreement to be executed and delivered in connection with the
transactions contemplated by this Agreement.
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3.5 Allocation
of Closing Costs.
All
expenses incurred by the Buyer or the Shareholders in connection with the
transactions contemplated hereby, including legal, financial advisory,
accounting, and other expert fees, shall be the responsibility of and for the
account of the party who ordered the particular service or incurred the
particular expense.
4. REPRESENTATIONS
AND WARRANTIES OF THE
SHAREHOLDER.
In
connection with the sale of the Stock to the Buyer, the Shareholder
represents
and
warrants
to the
Buyer as follows;
4.1 Title
to the Stock.
The
Shareholder is the valid and lawful record and beneficial owner of all of the
Purchase
Shares of the Company all
of
which has been duly authorized and validly issued and is fully paid and
non-assessable, and is free and clear of all pledges, liens, claims, charges,
options, calls, encumbrances, restrictions and assessments whatsoever (except
any restrictions which may be created by operation of state or federal
securities laws). On the Closing Date, the Buyer shall receive from the
Shareholder good, valid and marketable title to all of the
Purchase Shares
hereto
free and clear of all pledges, liens, claims, charges, options, calls,
encumbrances, restrictions and assessments whatsoever (except any restrictions
which may be created by operation of state or federal securities
laws).
4.2 Rights
to Acquire Capital Stock.
To the
best of Shareholder’s knowledge, there are no outstanding subscriptions,
options, rights, warrants, convertible securities or other agreements or calls,
demands or commitments obligating the Company to issue, transfer or purchase
any
shares of its capital stock, or obligating the Shareholder to transfer any
shares of Stock.
4.3 Valid
and Binding Agreement; No Breach.
(a) The
Shareholder has full legal right, power and authority to execute and deliver
this Agreement and to consummate the transactions contemplated hereby. This
Agreement constitutes the legal, valid and binding obligations of the
Shareholder, enforceable against the Shareholder in accordance with their
respective terms, except as such enforcement may be limited by general equitable
principles or by applicable bankruptcy, insolvency, reorganization or other
laws
and judicial decisions from time to time in effect which affect creditors’
rights generally.
4.4 Affiliated
Transactions.
Other
than as disclosed in this Agreement the Company is not
a
debtor
or creditor of the Shareholder, nor is
the
Company subject to any agreement between either of them and the Shareholder.
4.5 Brokers.
No
broker or finder is involved in this transaction or is entitled to receive
a
fee, commission or other compensation from the Shareholder or the Company with
respect to the transactions contemplated in this Agreement.
4.6 Organization,
Good Standing and Qualification.
The
Company is a corporation, and is duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization. The Company has
the
corporate power and authority to own and operate its properties and assets,
to
execute and deliver this Agreement.
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4.7 Authorization;
Binding Obligations.
All
corporate action on the part of the Company (including the respective officers
and directors) necessary for the authorization of this Agreement and the Related
Agreements, and the performance of all obligations of the Company has been
taken
or will be taken prior to the Closing. This Agreement and the other Related
Agreements, when executed and delivered and to the extent it is a party thereto,
will be valid and binding obligations of each of the Company.
4.8 Liabilities.
The
Company has no contingent liabilities, except current liabilities incurred
in
the ordinary course of business and liabilities disclosed in its financial
statements.
4.9 Obligations
to Related Parties.
There
are no obligations of the Company to officers, directors, stockholders or
employees of the Company or any of its Subsidiaries other than:
(a) for
payment of salary for services rendered and for bonus payments;
(b) reimbursement
for reasonable expenses incurred on behalf of the Company and its
Subsidiaries;
(c) for
other
standard employee benefits made generally available to all employees;
and
(d) obligations
listed in the Company's financial statements.
4.10 Title
to Properties and Assets; Liens, Etc.
The
Company has good and marketable title to its properties and assets, and good
title to its leasehold estates, in each case subject to no mortgage, pledge,
lien, lease, encumbrance or charge, other than:
(a) those
resulting from taxes which have not yet become delinquent;
(b) minor
liens and encumbrances which do not materially detract from the value of the
property subject thereto or materially impair the operations of the Company
or
any of its Subsidiaries; and
(c) those
that have otherwise arisen in the ordinary course of business.
All
facilities, machinery, equipment, fixtures, vehicles and other properties owned,
leased or used by the Company and its Subsidiaries are in good operating
condition and repair and are reasonably fit and usable for the purposes for
which they are being used. The Company and its Subsidiaries are in compliance
with all material terms of each lease to which it is a party or is otherwise
bound.
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4.11 Intellectual
Property.
(a) The
Company owns or possesses sufficient legal rights to all patents, trademarks,
service marks, trade names, copyrights, trade secrets, licenses, information
and
other proprietary rights and processes necessary for its business as now
conducted and to the Company’s knowledge, as presently proposed to be conducted
(the "Intellectual Property"), without any known infringement of the rights
of
others. There are no outstanding options, licenses or agreements of any kind
relating to the foregoing proprietary rights, nor is the Company or any of
its
Subsidiaries bound by or a party to any options, licenses or agreements of
any
kind with respect to the patents, trademarks, service marks, trade names,
copyrights, trade secrets, licenses, information and other proprietary rights
and processes of any other person or entity other than such licenses or
agreements arising from the purchase of "off the shelf" or standard
products.
(b) The
Company has not received any communications alleging that the Company or any
of
its Subsidiaries has violated any of the patents, trademarks, service marks,
trade names, copyrights or trade secrets or other proprietary rights of any
other person or entity, nor is the Company or any of its Subsidiaries aware
of
any basis therefore.
(c) The
Company does not believe it is or will be necessary to utilize any inventions,
trade secrets or proprietary information of any of its employees made prior
to
their employment by the Company or any of its Subsidiaries, except for
inventions, trade secrets or proprietary information that have been rightfully
assigned to the Company or any of its Subsidiaries.
4.12 Litigation
There
is
no action, suit, proceeding or investigation pending or, to the Company's
knowledge, currently threatened against the Company that prevents the Company
from entering into this Agreement or the Related Agreements, or from
consummating the transactions contemplated hereby or thereby, or which has
had,
or could reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect or any change in the current equity
ownership of the Company, nor is the Company aware that there is any basis
to
assert any of the foregoing.
4.13 Tax
Returns and Payments.
The
Company has timely filed all tax returns (federal, state and local) required
to
be filed by it. All taxes shown to be due and payable on such returns, any
assessments imposed, and all other taxes due and payable by the Company on
or
before the Closing, have been paid or will be paid prior to the time they become
delinquent.
4.14 Compliance
with Laws; Permits.
The
Company is not in violation of any applicable statute, rule, regulation, order
or restriction of any domestic or foreign government or any instrumentality
or
agency thereof in respect of the conduct of its business or the ownership of
its
properties which has had, or could reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect. No governmental
orders, permissions, consents, approvals or authorizations are required to
be
obtained and no registrations or declarations are required to be filed in
connection with the execution and delivery of this Agreement or any other
Related Agreement and the issuance of any of the Securities, except such as
has
been duly and validly obtained or filed, or with respect to any filings that
must be made after the Closing, as will be filed in a timely manner. Each of
the
Company and its Subsidiaries has all material franchises, permits, licenses
and
any similar authority necessary for the conduct of its business as now being
conducted by it, the lack of which could, either individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect.
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4.15 Full
Disclosure.
The
Company has provided the Purchaser with all information requested by the
Purchaser in connection with its decision to purchase the Purchase Shares,
including all information the Company believes is reasonably necessary to make
such investment decision. Neither this Agreement, the Related Agreements nor
any
other document delivered by the Company to Purchaser or its attorneys or agents
in connection herewith or therewith or with the transactions contemplated hereby
or thereby, contain any untrue statement of a material fact nor omit to state
a
material fact necessary in order to make the statements contained herein or
therein, in light of the circumstances in which they are made, not misleading.
5.
REPRESENTATIONS AND WARRANTIES OF THE BUYER.
In
connection with the Buyer’s purchase of the Stock from the Shareholder, the
Buyer represents and warrants to the Shareholder as follows:
5.1 Existence. The
Buyer
is now, and on the Closing Date will be, a corporation, organized and existing
and in good standing under the laws of the State of California
and
has
the requisite power and authority to own or lease its properties and to carry
on
its business as now being conducted.
5.2 Power
and Authority.
The
Buyer has the power, legal capacity and authority to enter into, and perform
its
obligations under this Agreement and the Ancillary Documents. The Buyer has
taken all action necessary to authorize the execution and delivery of this
Agreement and the Ancillary Documents, the performance of its obligations
hereunder and thereunder, and the consummation of the transactions contemplated
hereby and thereby.
5.3 Enforceability.
This
Agreement and the Ancillary Documents have been duly authorized by all necessary
corporate action, executed and delivered by the Buyer and constitute the legal,
valid and binding obligation of the Buyer, enforceable against it in accordance
with its terms, except as the same may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors’ rights generally and general equitable principles regardless of
whether such enforceability is considered in a proceeding at law or in
equity.
5.4 No
Default or Consents.
Neither
the execution or delivery of this Agreement and the Ancillary Documents by
Buyer, nor the carrying out of the transactions contemplated hereby
will
to the
Buyer’s knowledge:
(a) violate
the Articles of Incorporation or Bylaws of the Buyer
in any
material respect;
(b) materially
violate,
conflict with, result in a breach of, constitute a default under (whether with
or without notice or the lapse of time or both), or accelerate or permit the
acceleration of the performance required by, or give any other party the right
to terminate, any material contract or other instrument applicable to Buyer;
(c) result
in the creation of any material lien, charge or other encumbrance on any
property of the Buyer; (d) require
the Buyer to obtain or make any waiver, consent, action, approval or
authorization of, or registration, declaration, notice of filing with, any
private non-governmental third party or any governmental agency, except as
otherwise required under applicable federal securities laws, or (e) violate
or conflict with any law, statute, ordinance, rule, regulation, judgment, order,
injunction, or decree to which the Buyer is a party, or by which the Buyer
is
bound
in any
material respect.
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5.5 No
Proceedings.
No
suit, action or other proceeding is pending or, to the Buyer’s knowledge,
threatened by any third party seeking to restrain the Buyer or prohibit Buyer’s
entry into this Agreement or the Ancillary Documents or prohibit the Closing,
or
seeking damages against the Buyer or Buyer’s properties as a result of the
consummation of this Agreement.
5.6 No
Other Consideration.
The only
consideration being paid by the Buyer for the Stock is the Promissory
Note
and no
other consideration in any form whatsoever (including, but not limited to,
any
real or personal property, securities or cash) has been or will be received
by
the Buyer in exchange for the Sequiam Shares.
5.7 Brokers.
No
broker or finder is involved in connection with this transaction or is entitled
to receive a fee, commission or other compensation from the Buyer with respect
to the transactions contemplated in this Agreement.
6. THE
SHAREHOLDERS’ OBLIGATIONS BEFORE THE CLOSING DATE.
The
Shareholders, jointly and severally, hereby covenant and agree that, from the
date hereof until the Closing Date:
6.1 Corporate
Matters.
Except
as otherwise contemplated by this Agreement, neither the Company nor the
Subsidiary will, without the prior written consent of the Buyer, permit the
Company or the Subsidiary to:
(a) amend
its
Articles of Incorporation or By-Laws or other applicable governing
document;
(b) issue
any
shares of the Company’s or Subsidiary’s capital stock;
(c) issue
or
create any warrants, obligations, subscriptions, options, convertible securities
or other commitments under which any additional shares of the Company’s or
Subsidiary’s capital stock might be directly or indirectly issued;
(d) declare,
pay, set aside or make any dividend(s) or other distribution(s) of cash or
other
property, or redeem any outstanding shares of the Company’s or Subsidiary’s
capital stock;
(e) forgive
any liability or indebtedness owed to the Company or Subsidiary by any
Shareholder or any of his Affiliates;
(f) agree
to
do, or take any action in furtherance of, any of the foregoing.
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7. CONDITIONS
PRECEDENT TO THE BUYER’S PERFORMANCE.
The
obligations of the Buyer to consummate the transactions contemplated by this
Agreement are further subject to the satisfaction, at or before the Closing
Date, of all the following conditions, any one or more of which may be waived
in
writing by the Buyer:
7.1 Accuracy
of Representations and Warranties; .
All
representations and warranties made by the Shareholders in this Agreement,
in
any Schedule(s) hereto, and/or in any written statement delivered to the Buyer
under this Agreement shall be true and correct in all material respects on
and
as of the Closing Date as though such representations and warranties were made
on and as of that date.
7.2 Performance.
Each
Shareholder shall have performed, satisfied and complied with all covenants,
agreements, and conditions required by this Agreement to be performed, satisfied
or complied with by the Shareholder on or before the Closing Date.
7.3 Certification.
The
Buyer shall have received a certificate, dated the Closing Date, signed by
each
Shareholder, certifying, in such detail as the Buyer and its counsel may
reasonably request, that the conditions specified in Sections 8.1 and 8.2 have
been fulfilled.
7.4 Absence
of Litigation.
No
action, suit or proceeding by or before any court or any governmental body
or
authority, against the Company or pertaining to the transactions contemplated
by
this Agreement or their consummation, shall have been instituted on or before
the Closing Date, which action, suit or proceeding would, if determined
adversely, have a material adverse effect on the Company, the Subsidiary, their
business or any material portion of their assets.
7.5 Consents.
All
necessary disclosures to and agreements and consents of (a) any parties to
any material contracts and/or any licensing authorities which are material
to
the Company’s business, and (b) any governmental authorities or agencies to
the extent required in connection with the transactions contemplated by this
Agreement, shall have been obtained and true and complete copies thereof
delivered to the Buyer.
7.6 No
Material Adverse Change.
On the
Closing Date, there shall not have occurred any event or condition materially
and adversely affecting the financial condition, results of operations or
business prospects of the Company, except for matters resulting from adverse
changes in economic conditions affecting businesses generally.
7.7 Proceedings
and Instruments Satisfactory.
All
proceedings, corporate or other, to be taken in connection with the transactions
contemplated by this Agreement, and all documents incidental thereto, shall
be
reasonably satisfactory in form and substance to the Buyer and its counsel.
8. CONDITIONS
PRECEDENT TO THE SHAREHOLDERS PERFORMANCE.
The
obligations of each Shareholder to consummate the transactions contemplated
by
this Agreement are further subject to the satisfaction, at or before the Closing
Date, of all of the following conditions, any one or more of which may be waived
in writing by the Shareholders:
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8.1 Accuracy
of Representations and Warranties.
All
representations and warranties made by the Buyer in this Agreement and/or in
any
written statement delivered by the Buyer under this Agreement shall be true
and
correct in all material respects on and as of the Closing Date as though such
representations and warranties were made on and as of that date.
8.2 Performance.
The
Buyer shall have performed, satisfied and complied with all covenants,
agreements and conditions required by this Agreement to be performed, satisfied
or complied with by the Buyer on or before the Closing Date.
8.3 Certification.
The
Shareholder shall have received a certificate, dated the Closing Date, signed
by
the Buyer, certifying, in such detail as the Shareholder and his counsel may
reasonably request, that the conditions specified in Sections 9.1 and 9.2 have
been fulfilled.
8.4 Proceedings
and Instruments Satisfactory.
All
proceedings to be taken in connection with the transactions contemplated by
this
Agreement, and all documents incidental thereto, shall be reasonably
satisfactory in form and substance to the Shareholders and their
counsel.
9. [RESERVED].
10. INDEMNIFICATION.
10.1 Survival.
The
representations, warranties, and indemnities of the parties set forth in this
Agreement or in connection with the transactions contemplated hereby shall
survive the Closing.
10.2 Indemnity
by the Shareholder.
From
and after the Closing, each Shareholder, individually and not jointly, hereby
agrees to indemnify and hold harmless the Buyer and the Company and its
Shareholders, directors, officers and employees
and
agents
(the
“Buyer
Indemnified Parties”),
from
and against any and all damages, liabilities, obligations, penalties, fines,
interest, judgments, claims, deficiencies, losses, costs, expenses and
assessments (including without limitation income and other taxes, interest,
penalties and attorneys’ and accountants’ fees and disbursements) (“Damages”)
suffered or incurred by the Buyer Indemnified Parties arising out of, resulting
from or in any way related to a breach of, or the failure to perform or satisfy
any of, the representations, warranties, covenants and agreements made by the
Shareholder in this Agreement, or any certificate delivered by the Shareholder
at the Closing pursuant hereto.
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10.3 Claims
for Indemnity.
For
purposes of this Article 11, a party making a claim for indemnity under this
Agreement is hereinafter referred to as an “Indemnified
Party”
and
the
party against whom such claim is asserted is hereinafter referred to as the
“Indemnifying
Party.”
All
claims by any Indemnified Party under this Agreement shall be asserted and
resolved in accordance with the following provisions. If any claim or demand
for
which an Indemnifying Party would be liable to an Indemnified Party is asserted
against or sought to be collected from such Indemnified Party by such third
party, said Indemnified Party shall with reasonable promptness notify in writing
the Indemnifying Party of such claim or demand stating with reasonable
specificity the circumstances of the Indemnified Party’s claim for
indemnification; provided, however,
that
any failure to give such notice will not waive any rights of the Indemnified
Party. After receipt by the Indemnifying Party of such notice, then upon
reasonable notice from the Indemnifying Party to the Indemnified Party, or
upon
the request of the Indemnified Party, the Indemnifying Party shall defend,
manage and conduct any proceedings, negotiations or communications involving
any
claimant whose claim is the subject of the Indemnified Party’s notice to the
Indemnifying Party as set forth above, and shall take all actions necessary,
including but not limited to the posting of such bond or other security as
may
be required by any governmental agency, so as to enable the claim to be defended
against or resolved without expense or other action by the Indemnified Party.
Upon request of the Indemnifying Party, the Indemnified Party shall, to the
extent it may legally do so and to the extent that it is compensated in advance
by the Indemnifying Party for any costs and expenses thereby incurred, (i)
take
such action as the Indemnifying Party may reasonably request in connection
with
such action, (ii) allow the Indemnifying Party to dispute such action in the
name of the Indemnified Party and to conduct a defense to such action on behalf
of the Indemnified Party, and (iii) render to the Indemnifying Party all such
assistance as the Indemnifying Party may reasonably request in connection with
such dispute and defense.
11. MISCELLANEOUS.
11.1 Effect
of Headings.
The
Article and Section headings used in this Agreement and the titles of the
Schedules hereto are included for purposes of convenience only, and shall not
affect the construction or interpretation of any of the provisions hereof or
of
the information set forth in such Schedules. Whenever required by the context,
and as used in this Agreement, the singular number shall include the plural
and
pronouns and any variations thereof shall be deemed to refer to the masculine,
feminine, neuter, singular or plural.
11.2 Entire
Agreement; Waivers.
This
Agreement and the other agreements and instruments referred to herein constitute
the entire agreement between the parties pertaining to the subject matter
hereof, and supersede all prior agreements or understandings as to such subject
matter. No party hereto has made any representation or warranty or given any
covenant to the other except as set forth in this Agreement, the Schedules
hereto, and the other agreements and instruments referred to herein. No waiver
of any of the provisions of this Agreement shall be deemed, or shall constitute,
a waiver of any other provisions, whether or not similar, nor shall any waiver
constitute a continuing waiver. No waiver shall be binding unless executed
in
writing by the party making the waiver.
11.3 Parties
in Interest.
Nothing
in this Agreement, whether expressed or implied, is intended to confer any
rights or remedies under or by reason of this Agreement on any persons other
than the parties to it and their respective heirs, executors, administrators,
personal representatives, successors and permitted assigns, nor is anything
in
this Agreement intended to relieve or discharge the obligations or liability
of
any third persons to any party to this Agreement, nor shall any provision give
any third persons any right of subrogation or action over or against any party
to this Agreement.
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11.4 Notices.
All
notices, requests, demands and other communications under this Agreement shall
be in writing and shall be deemed to have been duly given on the date of service
if served personally on the party to whom notice is to be given, on the day
after the delivery thereof to a recognized overnight courier service for
next-day delivery with all charges prepaid or billed to the account of the
sender, or on the third day after mailing if mailed to the party to whom notice
is to be given, by first class mail, registered or certified, postage prepaid,
and properly addressed to the Shareholder at the address contained in the
Company’s shareholder records, and if to the Company, c/o ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇,
Chief Financial Office, Sequiam Corporation, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, or to such other address as either party shall have specified by notice
in writing given to the other party.
11.5 Amendments
and Modifications.
No
amendment or modification of this Agreement or any Schedule hereto shall be
valid unless made in writing and signed by the party to be charged therewith.
11.6 Non-Assignability;
Binding Effect.
Neither
this Agreement, nor any of the rights or obligations of the parties hereunder,
shall be assignable by either party hereto without the prior written consent
of
the other party hereto. Otherwise, this Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, personal representatives, successors and permitted
assigns.
11.7 Governing
Law; Jurisdiction; Venue; Waiver of Jury Trial. This
Agreement and the documents delivered pursuant hereto shall be governed by
and
construed in accordance with the laws of the State of Florida without regard
to
any conflicts of law rules thereof. Each party hereto irrevocably submits to
the
exclusive jurisdiction of the Circuit Court of the State of Florida, Orange
County, in any action or proceeding arising out of or relating to this Agreement
or any of the Ancillary Documents, and each party hereby irrevocably agrees
that
all claims in respect of any such action or proceeding must be brought and/or
defended in such court; provided, however, that matters which are under the
exclusive jurisdiction of the Federal courts shall be brought in the Federal
District Court for the Middle District of Florida. Each party hereto consents
to
service of process by any means authorized by the applicable law of the forum
in
any action brought under or arising out of this Agreement or any of the
Ancillary Documents, and each party irrevocably waives, to the fullest extent
each may effectively do so, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court. EACH PARTY HERETO
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY
LEGALLY AND EFFECTIVELY DO SO, TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING
ARISING HEREUNDER.
11.8 Remedies.
Except
as set forth in Article 11, the rights and remedies provided by this Agreement
are cumulative, and the use of any one right or remedy by any party hereto
shall
not preclude or constitute a waiver of its right to use any or all other
remedies. Such rights and remedies are given in addition to any other rights
and
remedies a party may have by law, statute or otherwise.
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11.9 Survival.
Any
provision of this Agreement which contemplates performance or the existence
of
obligations after the Closing Date, and any and all representations and
warranties set forth in this Agreement, shall not be deemed to be merged into
or
waived by the execution and delivery of the instruments executed at the Closing,
but shall expressly survive Closing and shall be binding upon the party or
parties obligated thereby in accordance with the terms of this Agreement,
subject to any limitations expressly set forth in this Agreement.
11.10 Attorneys’
Fees.
In the
event any suit or other legal proceeding is brought for the enforcement of
any
of the provisions of this Agreement, the parties hereto agree that the
prevailing party or parties shall be entitled to recover from the other party
or
parties upon final judgment on the merits reasonable attorneys’ fees (and sales
taxes thereon, if any), including attorneys’ fees for any appeal, and costs
incurred in bringing such suit or proceeding.
11.11 Severability.
If any
provision of this Agreement is held by a court of competent jurisdiction to
be
contrary to law, then the remaining provisions of this Agreement, as applicable,
if capable of substantial performance, shall remain in full force and
effect.
11.12 Further
Assurances.
From
time to time from and after the Closing Date, the parties will execute and
deliver to each other any and all further agreements, instruments, certificates
and other documents as may reasonably be requested by the other party in order
more fully to consummate the transactions contemplated hereby.
11.13 Counterparts.
This
Agreement may be executed simultaneously in any number of counterparts, each
of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
IN
WITNESS WHEREOF, the
parties have executed this Agreement on and as of the date first set forth
above.
|
COMPANY:
MAGSTONE
INNOVATION, INC.
By:_________________________
Name:
_________________________
Title:
_________________________
|
BUYER:
SEQUIAM
CORPORATION
By:
________________________________
Name:
______________________________
Title:
_______________________________
|
|
SELLERS:
_______________________________
▇▇▇▇▇▇▇▇
▇▇▇▇
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