STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT is made and entered into as of the 1st
day of February, 2000 by and among, ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(collectively, the 'Sellers") and GLOBAL SOURCES LIMITED, a Delaware corporation
(the "Purchaser") .
W I T N E S S E T H:
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WHEREAS, the Sellers collectively own 100 percent of the stock (the
"Shares") of M&S CORPORATE HOLDINGS, INC., a New Jersey corporation d/b/a THE
PARTNERSHIP GROUP (the "Company") , which constitute all of the issued and
outstanding shares of stock of the Company;
WHEREAS, the Sellers are employed by the Purchaser pursuant to the
terms of those certain Employment Agreements dated as of September ___, 1999 and
attached hereto as Exhibit A (the "Existing Employment Agreements");
WHEREAS, Sellers and Purchaser never performed any of their obligations
under such contracts through the date hereof first written above, with Sellers
simply continuing to work for Company throughout such period and not for
Purchaser and Purchaser making no demand that they commence rendering services
for and on behalf of Purchaser, and wish to set aside and terminate such
agreements and enter into a new arrangement with one another;
WHEREAS, the Sellers wish to sell to the Purchaser, and the Purchaser
wishes to purchase from the Sellers, the Shares, upon the terms and conditions
set forth herein;
WHEREAS, in connection with the purchase and sale of the Shares, the
parties hereto wish to rescind and terminate the Existing Employment Agreements;
and
WHEREAS, as of the date hereof, the Sellers shall enter into employment
agreements with the Company;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements and covenants hereinafter set forth, the Purchaser and the Sellers
hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF SHARES, KEEPWELLS
Section 1.01 Purchase and Sale of Shares. Subject to the terms and
conditions hereof, on the Closing Date (as defined below) the Sellers agree to
sell to the Purchaser, and the Purchaser agrees to purchase from the Sellers,
the Shares in exchange for 450,000 shares of the common stock of Purchaser
("Global Shares"), which the parties hereto value at $900,000 (the "Purchase
Price"). Nothing herein shall require the Purchaser to purchase less than all of
the issued and outstanding Shares in the Company.
Section 1.02 Closing Date. The consummation of the purchase and sale of
the Shares hereunder (the "Closing") shall be held at the offices of ▇▇▇▇▇▇ &
▇▇▇▇▇ LLP, located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at such time
and place as the Sellers and the Purchaser may mutually agree (the "Closing
Date").
Section 1.03 Method of Payment. As consideration for the sale of the
Shares, on the Closing Date, Purchaser shall transfer to Sellers 450,000 Global
Shares valued by the parties hereto at $900,000, divided between the Sellers in
the manner requested by Sellers prior to the Closing Date.
Section 1.04 Restrictions on Sale.
(a) Notwithstanding any of the other provisions of this Agreement,
Sellers hereby agree that they will not sell, assign, transfer or convey any
Global Shares or any shares of common stock of the Purchaser previously issued
to Sellers under the Existing Employment Agreements (collectively, "Common
Stock") until the date (the "Market Date") that the Purchaser's Form S-4 is
deemed effective by the Securities and Exchange Commission (the "SEC").
(b) Notwithstanding any of the other provisions of this Agreement,
Sellers hereby agree that they will not sell, assign, transfer or convey an
amount of Common Stock that would "flood" the market for shares of the
Purchaser's common stock. In connection therewith, Sellers hereby agree that
each month during the 180 day period described in Section 1.05 below (the
"Initial Guarantee Period"), they will cease selling Common Stock immediately
upon realizing an aggregate amount of $90,000 from the sale of Common Stock and
that during each month of the subsequent 18 months (each such month, a "Monthly
Guarantee Period"), they will cease selling Common Stock immediately upon
realizing an aggregate amount of $90,000 from the sale of Common Stock. The
Sellers hereby agree that during any one month period commencing on the date
that the final Monthly Guarantee Period ends, they shall not sell more than an
aggregate of 45,000 shares of Common Stock.
Section 1.05 Initial Keepwell. During the one hundred eighty (180) day
period commencing on the Market Date, 45,000 shares of the COMMON STOCK shall be
subject to an initial keepwell feature (the "Initial Keepwell Guarantee"). The
Initial Keepwell Guarantee shall require that in the event that the mean of the
last asked price by the primary market maker for the Purchaser on any date
during such 180-day period that either or both of the Sellers sell up to 45,000
of their respective shares of Common Stock and do not realize therefrom gross
sales proceeds equal to at least $2.00 x the number of shares sold (not to
exceed $90,000 then Sellers shall receive at the end of such 180 day period and
promptly following delivery of written evidence of Sellers' sales and the prices
at which they were sold additional shares equal in value to the shortfall. For
this purpose, the additional shares shall be valued at the mean of the last
asked price by the primary market maker for the Company for the five business
days preceding the date the additional shares are issued to Sellers.
Notwithstanding the foregoing, Sellers hereby agree and acknowledge that in the
event that any or all of the Sellers attempts to sell an aggregate of more than
22,500 shares of the Common Stock during any thirty (30) day period during the
term that the Initial Keepwell is in effect, the Initial Keepwell shall only
apply to the first 22,500
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of Common Stock sold during such thirty (30) day period, and the Anniversary
Keepwell, as defined in Section 1.06, shall terminate. Sellers further
acknowledge that the Initial Keepwell Guaranty shall terminate on the date that
is one hundred eighty (180) days after the Market Date.
Section 1.06 Anniversary Keepwell. On the one year anniversary of the
Market Date (the "Anniversary Date") , 405,000 shares of the Common Stock shall
be subject to a keepwell feature (the "Anniversary Keepwell Guarantee") as
follows: in the event that the mean of the last asked price by the primary
market maker for the Purchaser on the five (5) business days preceding the
Anniversary Date (the "Average Mean Price") does not at least equal $2.20 per
share, Sellers shall receive additional shares so that on the Anniversary Date
the sum of 405,000 shares plus the additional shares so issued to Sellers
multiplied by the Average Mean Price shall be equal to $891,000 ($2.20 x
405,000). At the sole option of the Company, the Company may elect to pay cash
to Sellers equal to the value deficiency, in lieu of issuing additional shares
of Common Stock. However, in the event that the sum of (i) the total number of
shares owned in the aggregate by Sellers on the Anniversary Date multiplied by
the Average Mean Price, plus (ii) the total consideration the Sellers have
received for all sales of shares of their Common Stock prior to the Anniversary
Date is equal to or greater than $891,000, the Anniversary Keepwell Guaranty
shall not apply.
Section 1.07 Termination of Keepwells. The parties hereto hereby agree
and acknowledge that in the event that the mean of the last asked price by the
primary market maker for the Purchaser exceeds $3.00 for any period consisting
of at least twenty (20) consecutive business days, the Initial Keepwell
Guarantee and the Anniversary Keepwell Guarantee shall become void and Sellers
shall retain no rights to any keepwell features or guarantees.
Section 1.08 Employment Agreements. On the Closing Date, the Existing
Employment Agreements shall be rescinded and terminated, and the Purchaser shall
enter into the new employment agreements with ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
annexed as Exhibits B and C hereto, which new agreements completely supersede
the Existing Employment Agreements from and after the Closing Date. In the event
that Purchaser transferred any shares of common stock of Purchaser or any stock
options under the Existing Employment Agreements, Sellers shall execute a stock
power transferring such shares back to the Purchaser on the closing date and
hereby direct and empower Purchaser to cancel such shares or add them to
treasury stock.
ARTICLE II
REPRESENTATIONS AND WARRANT IES OF THE SELLERS
Section 2.01 Representations of the Sellers. The Sellers, jointly and
severally, represent and warrant to the Purchaser that the following is true and
correct as of the date hereof and shall be true and correct as of the Closing
Date:
(a) Government and Other Consents. No authorization or approval or
other action by, and no notice to or fling with, any governmental or regulatory
authority is required to be obtained
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or made, and no consent of any third party is required to be obtained by,
Sellers for the due execution, delivery and performance by the Sellers of this
Agreement.
(b) Enforceable Obligations. This Agreement has been duly executed and
delivered on behalf of Sellers and constitutes the legal, valid and binding
obligation of Sellers enforceable against Sellers in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and by general principles of equity.
(c) No Litigation. No claim, action, suit, investigation or proceeding
of or before any arbitrator or governmental authority is pending or, to the
knowledge of Sellers, threatened by or against either Seller with respect to the
Company, this Agreement or any of the transactions contemplated hereby. No
judgment, order, writ, injunction, decree or award issued by any governmental
authority is applicable to either Seller which affects any of the Shares, the
Company, this Agreement or any of the transactions contemplated hereby.
(d) Ownership of the Shares. Sellers are the owners of record and
beneficially of all of the issued and outstanding Shares of the Company. All of
the Shares are free and clear of any liens, claims and encumbrances
(collectively, "Encumbrances"). Sellers have the right to transfer title to the
Shares to the Purchaser. There are no commitments, agreements or rights relating
to the purchase, sale or other disposition of the Shares (including, without
limitation, any subscription agreement, preemptive right or right of first
refusal). None of the Shares are subject to any voting trust, voting agreement,
or other similar agreement or understanding with respect to the voting or
control thereof
(e) Disclosure. No representation or warranty made by Sellers in this
Agreement and no schedule, writing, certificate, exhibit, list or other document
furnished by or on behalf of the Sellers to the Purchaser in connection with
this Agreement contains or will contain any untrue statement of a material fact
or omits or will omit any material fact necessary in order to make the
statements and information contained therein not misleading.
(f) Exemption From Securities Laws. The offer, sale and transfer of the
Shares contemplated hereby are exempt from the registration requirements of the
securities laws of the United States or any state of the United States and from
any securities laws of any other state or country (provided that for purposes of
this section, Seller has relied on the representation of the Purchaser in
Section 3.01(g)).
(g) Brokers, Finders. Sellers have not retained any Person to act on
its behalf, nor has any Person contended that such Person was so retained, to
assist Sellers as a broker, finder or agent in connection with any of the
transactions contemplated hereby.
Section 2.02 Representations of the Sellers as to the Company. The
Sellers, jointly and severally, represent and warrant to the Purchaser that the
following is true and correct with respect to the Company as of the date hereof
and shall be true and correct as of the Closing Date:
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(a) Organization, Standing and Qualification of the Company. The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of New Jersey and the Company has all necessary
corporate power and authority to engage in the business in which it is presently
engaged. The Company conducts business only in New Jersey and does not do
business in any other jurisdiction. Seller has delivered to the Purchaser true,
correct and complete copies of the articles of organization and operating
agreement of the Company, and all amendments thereto.
(b) Capital Structure of the Company. The issued and outstanding Shares
of the Company consist of _________ shares of common stock, all of which are
held by the Sellers. All of the Shares are validly issued, fully paid and
non-assessable. All of the Shares were issued in compliance with all applicable
requirements of law and in compliance with the articles of organization and
operating agreement of the Company. There are no outstanding subscriptions for
any Shares or units to be issued by the Company.
(c) No Violation of Statute or Breach of Contract. The Company is not
in default under, or in violation of, (a) any material applicable requirement of
law, or (b) any material contractual obligation. The Company has not received
notice that any Person claims that the Company has committed such a default or
violation.
(d) Government and Other Consents. No consent, authorization, license,
permit, registration or approval of, or exemption or other action by, any
Governmental Authority is required to be obtained or made, and no consent of any
third party is required to be obtained by the Company in connection with the
execution and delivery of this Agreement or with the consummation of the
transactions contemplated hereby.
(e) Effect of Agreement. The execution and delivery of this Agreement
by the Sellers, performance of the obligations of the Sellers hereunder and
consummation of the transactions contemplated hereby will not (i) result in a
breach or violation of any requirement of law applicable to the Company; (ii)
result in the breach of, or be in conflict with, any term, covenant, condition
or provision of, any contractual obligation of the Company; or (iii) result in
the creation or imposition of any Encumbrance upon any assets of the Company.
(f) Financial Statements. Sellers have furnished the Purchaser with (i)
a list and valuation of the Assets of the Company as of DECEMBER 31, 1999 and
(ii) a balance sheet and income statement of the Company as of DECEMBER 31,
1999, copies of which are attached hereto as Exhibit D (collectively, the
"Financial Statements") . The Financial Statements are complete and accurate and
fairly present the assets and liabilities of the Company as of the dates and for
the periods therein specified.
(g) Assets and Business. All assets owned by the Company are listed on
Schedule 2.02(g) (the "Assets") . The Company has good and marketable title to
the Assets, free and clear of all Encumbrances. The Company is not engaged in
any business or activity other than owning the Assets.
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(h) Absence of Liabilities. The Company does not have any debt,
liability, or obligation as of the Closing Date of any nature, accrued, absolute
or contingent, due or to become due, liquidated or unliquidated (each,
"Undisclosed Liability").
(i) Tax Returns and Payments. All tax returns, federal, state, local,
foreign and other, including, without limitation, all federal tax returns and
reports for each fiscal year of the Company through the fiscal year ended
December 31, 1999 required to be filed by and/or on behalf of the Company in
respect of any taxes (including without limitation all foreign, federal, state,
county and local income, ad valorem, excise, sales, use, transfer and other
taxes and assessments) have been filed, and all taxes due and payable thereon,
or otherwise due and payable by the Company have been paid. The Company does not
have or will not have any liability for unpaid taxes. There are no deficiency
assessments against the Company with respect to any foreign, federal, state,
local or other taxes. The Sellers have heretofore made available to the
Purchaser copies of all federal, state, local and foreign tax returns or reports
of the Company filed prior to the Closing Date. All tax returns filed by or on
behalf of the Company are true, correct and complete. All taxes that the Company
is or was required to withhold or collect (including, without limitation,
payroll taxes) have been duly withheld or collected and paid to the proper
Governmental Authority.
(j) Contracts. Attached hereto as Schedule 2.02(j) is a list of all
agreements, contracts, indebtedness, liabilities and other obligations to which
the Company is a party or by which it is bound (the "Contracts"). The Contracts
are valid, legally binding and enforceable in accordance with their terms and
are in full force and effect. Copies of the Contracts have been delivered to the
Purchaser.
(k) Litigation. No claim, action, suit, investigation or other
proceeding against the Company is pending or, to the knowledge of any Seller, is
threatened before or by any court, administrative or regulatory body, or other
Governmental Authority. No judgment, order, writ, injunction, decree or award
issued by any Governmental Authority is applicable to the Company.
(l) Accounts, Powers of Attorney. There are no persons holding a power
of attorney on behalf of the Company or otherwise holding the right to act as an
agent on behalf of the Company. Schedule 2.02(l) lists the names and addresses
of each bank or other financial institution in which the Company has an account,
deposit or safe-deposit box, including the number of each such account, deposit
and safe-deposit box.
(m) Insurance. There are no insurance policies maintained by or on
behalf of the Company in effect on the Closing Date.
(n) Accounts Receivable. Schedule 2.02(n) contains a complete and
accurate list of all accounts receivable of the Company as of the Closing Date.
(o) Minute Books. All minute books and ledgers of the Company have been
made available to Purchaser for review.
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(p) Employees. Except as set forth on Schedule 2.02(p) the Company has
no employees and no employee benefit plans or pension plans (as defined in
Section 3(3) of the Employee Retirement Income Security Act of 1974 (" ERISA") )
or any incentive, bonus, option or parachute program or any other type of
employee compensation arrangement or program. Neither the Company nor any
employee benefit or pension plan previously maintained by the Company has any
unsatisfied liability or obligation to any former employee of the Company or in
connection with any employee benefit or pension plan or any incentive, bonus,
option or parachute program.
(q) ERISA Affiliates. Except as set forth on Schedule 2.02(q) (i) No
employee benefit plan (as defined in Section 3(3) of ERISA) of an ERISA
Affiliate (as hereinafter defined)is covered by Title IV of ERISA, (ii) no
prohibited transaction (as defined in Section 406 of ERISA or Section 4975 of
the Internal Revenue Code of 1986, as amended (the "Code")) or breach of a
fiduciary duty under ERISA has occurred with respect to any plan of an ERISA
Affiliate, (iii) no action, suit or proceeding, hearing, or investigation of the
assets of any plan of an ERISA Affiliate is pending or threatened, (iv) none of
the shareholders, directors or officers of the Company has any knowledge of any
basis for any such action, suit, proceeding, hearing or investigation, and (v)
there has been no waived or unwaived "accumulated funding deficiency" within the
meaning of Section 302(a) (2) of ERISA with respect to any plan of an ERISA
Affiliate. "ERISA Affiliate" shall mean an organization (whether or not
incorporated) which is under common control, or a member of an affiliated
service group, with the Company and, with the Company, is treated as a single
employer under Section 414(b), (c), (m) or (0) of the Code.
(r) Permits, Licenses. Etc. No franchise, license, permit, certificate,
authorization, right or other approval issued or granted by any Governmental
Authority to or for the benefit of the Company is in existence or effect.
(s) Officers; Directors. Schedule 2.02(s) contains a complete and
correct list of all of the officers and directors of the Company.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
Section 3.01 The Purchaser hereby represents and warrants to the
Sellers as follows:
(a) Existence. The Purchaser is a corporation duly incorporated and
validly existing under the laws of the State of New York.
(b) Authorization; No Violation. The execution, delivery and
performance by the Purchaser of this Agreement are within the Purchaser's
corporate powers and have been duly
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authorized by all necessary action, and do not contravene in any material
respect any requirement of law or contractual obligation of the Purchaser.
(c) Government Authorization. No authorization or approval or other
action by, and no notice to or filing with, any Governmental Authority is
required to be obtained or made by the Purchaser for the due execution, delivery
and performance by the Purchaser of this Agreement.
(d) Enforceable Obligations. This Agreement has been duly executed and
delivered on behalf of the Purchaser and constitutes the legal, valid and
binding obligation of the Purchaser enforceable against the Purchaser in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general principles of equity.
(e) No Litigation. No claim, action, suit, investigation or other
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Purchaser, threatened by or against the Purchaser with
respect to this Agreement or any of the transactions contemplated hereby.
(f) Brokers, Finders. The Purchaser has not retained any person to act
on its behalf as a broker or finder in connection with the purchase of the
Shares.
(g) Investment Intent. The Shares are being acquired by the Purchaser
for its own account and not with a view to distribution within the meaning of
the Securities Act of 1933, as amended (the "Securities Act"). The Purchaser
acknowledges that there is no existing public market for the Shares and that no
registration statement relating to the Shares has been filed under the
Securities Act or any applicable state securities laws, and that the Shares must
be held by it for an indefinite period of time unless the Shares are
subsequently registered under the Securities Act and state securities laws or
unless an exemption from any such applicable registration requirement is
available, and the Purchaser acknowledges that there is no assurance or
obligation as to any such registration or exemption.
ARTICLE IV
CONDITIONS TO CLOSING
Section 4.01 Conditions to Purchaser's Obligations. The obligation of
the Purchaser to purchase the Shares at the Closing is subject to the
fulfillment on or prior to the Closing Date of the following conditions:
(a) Representations and Warranties Correct; Performance of Obligations.
The representations and warranties made by the Sellers in Article II hereof
shall be true and correct when made, and shall be true and correct on the
Closing Date with the same force and effect as if they had been made on and as
of the Closing Date. The Sellers shall have performed all obligations and
conditions herein required to be performed or observed by it on or prior to the
Closing Date.
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(b) Qualifications. All actions and steps necessary to assure
compliance with applicable federal and state securities laws shall have been
duly obtained and shall be effective on and as of the Closing, except for such
filings as are required or permitted by state or federal securities laws
subsequent to the Closing. All other authorizations, approvals or permits of any
other Governmental Authority that are required in connection with the lawful
issuance and sale of the Shares under this Agreement shall have been duly
obtained and effective.
(c) Incumbency Certificates of the Sellers. The Purchaser shall have
received a certificate of the Secretary or President of the Company, certifying
the identity of all officers and directors of the Company and the names and
signatures of the persons authorized to sign this Agreement and the other
documents to be delivered hereunder on behalf of such Seller.
Section 4.02 Conditions to Obligations of the Sellers. The Sellers'
obligation to sell the Shares at the Closing is subject to the fulfillment on or
prior to the Closing Date of the following conditions:
(a) Representations and Warranties Correct; Performance of Obligations.
The representations and warranties of the Purchaser in Article II hereof shall
be true and correct when made, and shall be true and correct on the Closing Date
with the same force and effect as if they had been made on and as of the Closing
Date, and the Purchaser shall have performed all obligations and conditions
herein required to be performed by it on or prior to the Closing Date.
(b) Incumbency Certificate of the Purchaser. The Sellers shall have
received a certificate of the President of the Purchaser certifying the identity
of the officers and directors of the Company and the names and signatures of
officers of the Purchaser authorized to sign this Agreement and the other
documents to be delivered hereunder.
ARTICLE V
CLOSING DELIVERIES
Section 5.01 Sellers' Deliveries. At the Closing, in addition to any
other documents or agreements required under this Agreement, the Sellers shall
deliver or cause to be delivered to the Purchaser the following:
(a) Certificates evidencing the Shares duly endorsed in blank, or
accompanied by stock powers duly executed in blank, in a form reasonably
satisfactory to the Purchaser.
(b) Copies of all consents and approvals obtained, and all
registrations, qualifications, declarations, filings and notices made, by the
Sellers pursuant to Section 4.0l(b) hereof.
(c) All records, documents and files of the Company, including, without
limitation, all minute books, stock records and internal accounting records.
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(d) Resignations of all directors and officers of the Company.
(e) Balance sheet of the Company as of MARCH 31,2000
(f) Financial Statements of the Company as of MARCH 31,2000.
(g) A legal opinion of Sellers' counsel in form and substance
reasonably satisfactory to Purchaser.
(h) Such other documents, assignments, instruments of conveyance and
certificates as reasonably may be required by the Purchaser to consummate this
Agreement and the transactions contemplated hereby.
Section 5.02 Purchaser's Deliveries. At the Closing, in addition to any
other documents or agreements required under this Agreement, the Purchaser shall
deliver to the Sellers the Purchase Price in accordance with the instructions of
Seller, together with. such other documents as reasonably may be required by the
Sellers to consummate this Agreement and the transactions contemplated hereby.
ARTICLE VI
SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION
Section 6.01 Survival of Representations. The parties agree that,
notwithstanding any right or ability of the Purchaser fully to investigate the
affairs of the Company, any knowledge of facts determined or determinable by the
Purchaser pursuant to such investigations or right of or ability to investigate,
the Purchaser has the right to rely fully upon the representations, warranties,
covenants and agreements of the Sellers contained in this Agreement and on the
accuracy of any schedule, exhibit, document or certificate annexed hereto or
delivered to the Purchaser pursuant hereto. All representations and warranties
of the parties contained herein shall survive the Closing until the third
anniversary of this Agreement.
Section 6.02 Indemnification by the Sellers. Sellers shall, jointly and
severally, indemnify and hold harmless the Company, the Purchaser and their
respective affiliates and the officers, partners, directors, employees, agents,
owners, successors and assigns (including, among others, the Merged Entity)
thereof from any loss, damage, liability or expense (including, without
limitation, reasonable expenses of investigation and reasonable attorneys' fees
and expenses incurred in connection with any action, suit or proceeding against
any thereof) incurred or suffered by such party and arising out of or resulting
from (i) any breach of any representation or warranty contained in Article II of
this Agreement, (ii) any Undisclosed Liability of the Company, known or unknown,
(iii) any breach of any covenant made by Seller hereunder, or (iv) any lawsuit
or other proceeding or claim brought by any third party after the Closing
against the Company, the Purchaser, or any of their respective officers,
partners, directors, employees, agents, owners, successors and assigns with
respect to any acts or omissions prior to the Closing, or (v) any federal, state
or local tax relating to the Shares.
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Section 6.03 Indemnification by the Purchaser. The Purchaser shall
indemnify and hold Sellers harmless from any loss, damage, liability or expense
(including, without limitation, reasonable expenses of investigation and
reasonable attorneys' fees and expenses) in connection with any action, suit or
proceeding brought against Sellers, either jointly or severally, incurred or
suffered by Sellers and arising out of or resulting from any breach of any
representation, warranty, or covenant made by the Purchaser hereunder.
Section 6.04 Time Periods. The indemnification obligations under this
Article VI shall continue for three years and shall terminate with the
expiration of such period. Any claim or demand against Sellers or the Purchaser
of which notice has been given pursuant to Section 6.06 at or prior to the
expiration of the related period shall continue to be subject to indemnification
hereunder notwithstanding the expiration of such period.
Section 6.05 Notice Claim. Purchaser, on the one hand, and the Sellers,
on the other hand, shall promptly notify the other of any claim, suit or demand
of which the notifying party has actual knowledge which entitles it to
indemnification under this Article VI, provided, however, that the delay or
failure of any party required to provide such notification shall not affect the
liability of the indemnifying party hereunder except to the extent the
indemnifying party is harmed by such delay or failure.
Section 6.06 Defense. If the liability or claim for which
indemnification under this Article VI is sought is asserted by a third party,
the indemnifying party shall have, at its election, the right to defend any such
matter at its sole cost and expense through counsel chosen by it and reasonably
acceptable to the indemnified party (provided that the indemnifying party shall
have no such right if it is contesting its liability under this Article VI) . If
the indemnifying party so undertakes to defend, the indemnifying party shall
promptly notify the indemnified party hereto of its intention to do so. The
indemnifying party shall not, without the indemnified party's written consent,
settle or compromise any claim or consent to an entry of judgment which does not
include as an unconditional term thereof a release of the indemnified party.
Section 6.07 Cooperation and Conflicts. Each party agrees in all cases
to cooperate with the indemnifying party and its counsel in the defense of any
such liabilities The or claims. in such defense through the appointment of
counsel of its or their own choosing, at its or their own cost and expense.
ARTICLE VII
MISCELLANEOUS
Section 7.01 Waiver. Any extension or waiver with respect to any
agreement or condition contained herein or the breach thereof shall be valid
only if set forth in a separate instrument in writing signed by the party to be
bound thereby. Any waiver of any term or condition shall not be construed as a
waiver of any subsequent breach or a subsequent waiver of the same term or
condition, or a waiver of any other term or condition, of this Agreement. The
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failure of any party to assert any of its rights hereunder shall not constitute
a waiver of any such rights.
Section 7.02 Further Assurances. The Sellers agree, without further
consideration, to execute and deliver following the Closing such other
instruments of transfer and take such other action as the Purchaser may
reasonably request in order to put the Purchaser in possession of, and to vest
in the Purchaser, good and valid title to the Shares free and clear of any
Encumbrances in accordance with this Agreement and to otherwise consummate the
transactions contemplated by this Agreement.
Section 7.03 Entire Agreement; Amendment. This Agreement and the other
documents delivered pursuant hereto constitute the full and entire understanding
and agreement among the parties hereto with regard to the subject matter hereof
and thereof and supersede all prior and contemporaneous agreements and
understandings, oral or written, among the parties hereto with respect to such
subject matter. Any term of this Agreement may be amended and the observance of
any term of this Agreement may be waived only with the written consent of the
parties hereto.
Section 7.04 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any law, rule or
regulation or public policy, all other terms and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner materially adverse to any party. Upon such determination that any term or
other provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an acceptable
manner in order that the transactions contemplated hereby are consummated as
originally contemplated to the greatest extent possible.
Section 7.05 Notices, etc. All notices and other communications
required or permitted hereunder shall be in writing and shall be delivered
personally, mailed by first-class mail, postage prepaid, or sent by reputable
overnight courier service addressed (a) if to the Purchaser, at the Purchaser's
address set forth on Exhibit E hereto or at such other address as such Purchaser
shall have furnished to the Seller by 10 days' notice in writing, with a copy to
▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Telecopy: (212)
688-2449, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq., or (b) if to any Seller, at the
addresses set forth on Exhibit E hereto, or such other address as such Seller
shall have furnished to the Purchaser by 10 days' notice in writing.
Section 7.06 Expenses. All costs and expenses, including, without
limitation, fees and disbursements of counsel, financial advisors and
accountants, incurred in connection with the negotiation, preparation, execution
and delivery of this Agreement and consummation of the transactions contemplated
hereby shall be paid by the party incurring such costs and expenses.
Section 7.07 Governing Law; Jurisdiction. This Agreement shall be
governed in all respects by the laws of the State of New York without
application of principles of conflicts of
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laws. Any action or proceeding seeking to enforce any provision of, or based on
any right arising out of, this Agreement may be brought against any of the
parties in any state or federal court located in the State of New York, County
of New York, and each of the parties consents to the jurisdiction of such courts
in any such action or proceeding and waives any objection to venue laid therein.
Process in any action or proceeding referred to in the preceding sentence may be
served on any party anywhere in the world.
Section 7.08 Benefit of Agreement; Assignment. This Agreement will
apply to, be binding in all respects upon, and inure to the benefit of the
successors and permitted assigns of the parties. This Agreement may not be
assigned by operation of law or otherwise by either party without the express
written consent of the other party (which consent may not be unreasonably
withheld).
Section 7.09 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY OR
AGAINST IT ON ANY MATTERS WHATSOEVER, IN CONTRACT OR IN TORT, ARISING OUT OF OR
IN ANY WAY CONNECTED WITH THIS AGREEMENT.
Section 7.10 Titles and Subtitles. The titles of the Sections of this
Agreement are for convenience of reference only and are not to be considered in
construing this Agreement.
Section 7.11 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
Section 7.12 Acquiring Entity. At Purchaser's election, Purchaser may
assign its rights to acquire the Shares as provided in this Agreement to a
wholly-owned subsidiary of Purchaser, newly-formed for such purpose, in which
case, on the Closing Date, Sellers shall transfer the Shares to such subsidiary.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year set forth in the heading hereof.
GLOBAL SOURCES LIMITED
By: /S/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
SELLERS:
/s/▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇
/s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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