EXHIBIT 4
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STOCK PURCHASE AGREEMENT
among
▇▇▇ ▇▇▇▇▇▇,
an individual
▇▇▇ ▇. ▇▇▇▇▇▇ IRREVOCABLE CREDIT TRUST
PRIME PRO GROUP LIMITED,
a British Virgin Islands Company
and
FORTHCOMING ERA LIMITED,
a British Virgin Islands Company
__________________
Dated as of
February 15, 2001
__________________
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made as of
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February 15, 2001, by and among ▇▇. ▇▇▇ ▇. ▇▇▇▇▇▇, an individual ("▇▇▇▇▇▇") and
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the ▇▇▇ ▇. ▇▇▇▇▇▇ Irrevocable Credit Trust (the "Trust") (▇▇▇▇▇▇ and the Trust
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are each referred to as a "Seller" and are collectively referred to as the
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"Sellers"), Prime Pro Group Limited, a British Virgin Islands company ("PPG")
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and wholly owned subsidiary of ▇▇▇▇▇▇ Kong (Holdings) Limited, a Hong Kong
corporation, and Forthcoming Era Limited, a British Virgin Islands company
("FEL") and wholly owned subsidiary of ▇▇▇▇▇▇▇▇▇ Whampoa Limited, a Hong Kong
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corporation (PPG and FEL are each a "Purchaser", and collectively the
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"Purchasers").
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NOW, THEREFORE, the parties hereto hereby agree as follows.
ARTICLE I.
DEFINITIONS
As used in this Agreement, the following terms shall have the
following meanings:
"Affiliate" shall mean, with respect to any person, any other person
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directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified person and, in the case of a person who is an
individual, shall include (i) members of such specified person's immediate
family (as defined in Instruction 2 of Item 404(a) of Regulation S-K under the
Securities Act) and (ii) trusts, the trustee and all beneficiaries of which are
such specified person or members of such person's immediate family as determined
in accordance with the foregoing clause (i). For the purposes of this
definition, "control," when used with respect to any person, means the power to
direct the management and policies of such person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "affiliated," "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agreement" shall have the meaning set forth in the Preamble.
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"Applicable Law" shall mean, with respect to any person, any law,
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statute, rule, regulation, order, writ, injunction, judgment or decree of any
Governmental Authority to which such person or any of its subsidiaries is bound
or to which any of their respective properties is subject.
"Closing" shall have the meaning set forth in Section 2.2.
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"Common Stock" shall mean the common stock, par value $.008 per share,
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of the Company.
"Company" shall mean ▇▇▇▇▇▇▇▇▇.▇▇▇ Incorporated, a Delaware
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corporation.
"Company Stock Purchase Agreement" shall mean the Stock Purchase
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Agreement, dated as of the date hereof, among the Company and the Purchasers.
"Documents" shall mean (i) this Agreement, (ii) the Company Stock
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Purchase Agreement and (iii) the Registration Rights Agreement, dated as of the
date hereof, by and among the Company and the Purchasers.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
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amended, and the rules and regulations promulgated thereunder.
"Governmental Authority" shall mean any foreign, Federal, state or
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local court or governmental or regulatory authority.
"Indemnified Party" shall have the meaning set forth in Section 7.1.
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"Indemnifying Party" shall have the meaning set forth in Section 7.1.
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"Knowledge", "to the knowledge of" and any similar language shall
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mean, except as otherwise set forth in this Agreement, the best knowledge, after
due inquiry, of the executive officers of any Purchaser, or of the Sellers.
"Lien" shall mean any pledge, lien, claim, restriction, charge or
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encumbrance of any kind.
"Material Adverse Effect" shall mean a material adverse effect (i) on
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the business, operations, properties, earnings, assets, liabilities or condition
(financial or other) of the Company and its Subsidiaries, taken as a whole, or
(ii) on the ability of the Company or its Subsidiaries to perform its
obligations hereunder or under any of the other Documents.
"Notices" shall have the meaning set forth in Section 7.2.
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"Permitted Transferee" shall mean, as to either Purchaser, (i) the
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other Purchaser, (ii) any subsidiary of PPG and (iii) any subsidiary of FEL.
"person" shall mean any individual, partnership, corporation, limited
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liability company, joint venture, association, joint- stock company, trust,
unincorporated organization, government or agency or political subdivision
thereof, or other entity.
"Purchase Agreement" shall mean this Agreement.
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"Purchaser" shall have the meaning set forth in the Preamble.
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"Shares" shall have the meaning set forth in Section 2.1(a) hereof.
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"Securities" shall mean the Shares and any other Common Stock of the
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Company.
"Securities Act" shall mean the Securities Act of 1933, as amended,
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and the rules and regulations thereunder.
"subsidiary" shall mean, with respect to any person, (a) a corporation
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a majority of whose capital stock with voting power, under ordinary
circumstances, to elect directors is at the time,
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directly or indirectly, owned by such person, by a subsidiary of such person, or
by such person and one or more subsidiaries of such person or (b) a partnership
in which such person or a subsidiary of such person is, at the date of
determination, a general partner, or any other person (other than a corporation)
in which such person, a subsidiary of such person or such person and one or more
subsidiaries of such person, directly or indirectly, at the date of
determination thereof, has (i) at least a majority ownership interest, (ii) the
power to elect or direct the election of the directors or other governing body,
or (iii) the power to direct or cause the direction of the affairs or
management. For purposes of this definition, a person is deemed to own any
capital stock or other ownership interest if such person has the right to
acquire such capital stock or other ownership interest, whether through the
exercise of any purchase option, conversion privilege or similar right.
"Taxes" shall mean all foreign, federal, state and local taxes,
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including any interest, penalties or additions to tax that may become payable in
respect thereof, imposed by any Governmental Authority, which taxes shall
include, without limiting the generality of the foregoing, all income taxes,
payroll and employee withholding taxes, unemployment insurance, social security,
sales and use taxes, excise taxes, franchise taxes, gross receipts taxes,
occupation taxes, real and personal property taxes, stamp taxes, transfer taxes,
workmen's compensation taxes and other obligations of the same or a similar
nature, whether arising before, on or after the Closing Date.
ARTICLE II.
SALE AND PURCHASE
Section 2.1 Sale of Shares. On the date hereof, and upon the terms
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set forth in this Agreement, each Seller shall sell to each Purchaser, severally
and not jointly, and each Purchaser shall purchase and accept from each Seller,
payable in immediately available funds, the number of shares of Common Stock set
forth opposite each Purchaser's name on Exhibit A hereto, at a purchase price of
$2.10 per share (the aggregate number of shares of Common Stock being sold
hereinafter being referred to herein as the "Shares").
Section 2.2 Closing.
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(a) The closing of the purchase and sale of the Shares
hereunder and of the other shares of Common Stock under the Company Stock
Purchase Agreement (the "Closing") shall take place on the date hereof, at the
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offices of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇, or at such other time and place as the parties hereto shall agree in
writing.
(b) At the Closing (i) each Purchaser shall deposit
into one or more bank accounts designated by each Seller, by wire transfer of
immediately available funds, an amount equal to the purchase price of the Shares
being purchased by such Purchaser from such Seller pursuant to Section 2.1 and
(ii) such Seller shall deliver to each Purchaser, against payment of the
purchase price therefor, a stock certificate or stock certificates representing
the Shares being
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purchased from such Seller by such Purchaser pursuant to Section 2.1. The stock
certificates shall be duly endorsed or accompanied by appropriate stock powers
duly endorsed in blank and evidence of payment of any applicable stock transfer
tax which may be incurred as a result of the transfer of the Shares.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
OF THE SELLERS
Each Seller represents and warrants, as to itself only and severally
and not jointly, to the Purchasers as follows (except that the representation in
Section 3.6 is made only by ▇▇▇▇▇▇):
Section 3.1 Authorization; Enforceability. Such Seller has duly
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executed and delivered this Agreement. This Agreement constitutes, assuming due
execution by the other parties hereto, the legal, valid and binding obligation
of such Seller enforceable against him or it in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy or similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
Section 3.2 No Violation; Consents.
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(a) The execution, delivery and performance by such
Seller of this Agreement and the consummation of the transactions contemplated
hereby does not and will not contravene any Applicable Law and will not (x)
violate, result in a breach of or constitute (with due notice or lapse of time
or both) a default under any contract, lease, loan agreement, mortgage, security
agreement or other agreement or instrument to which such Seller is a party or by
which either he or it or his or its properties or assets is subject or (y)
result in the creation or imposition of any Lien (other than a Permitted Lien)
upon any of the properties or his assets.
(b) Except as set forth on Schedule 3.2(b), no
consent, authorization or order of, or filing or registration with, any
Governmental Authority or other person is required to be obtained or made by
such Seller for the execution, delivery and performance of this Agreement, or
the consummation of any of the transactions contemplated hereby.
Section 3.3 Litigation. Except as set forth on Schedule 3.3, to
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such Seller's knowledge, the sale of the Shares pursuant to this Agreement has
no been and has not been threatened to be, restrained or enjoined (either
temporarily, preliminarily or permanently), and no material adverse conditions
have been imposed thereon by any Governmental Authority or arbitrator.
Section 3.4 No Integrated Offering. Neither such Seller, nor any
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person acting on its behalf has, directly or indirectly, made any offers or
sales of any security or solicited any offers to buy any security under
circumstances that would require the registration of the Shares under the
Securities Act.
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Section 3.5 Ownership of Shares. All of the Shares being sold by
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such Seller are duly authorized and validly issued, fully-paid and non-
assessable, with no personal liability attaching to the ownership thereof and
free and clear of any taxes, liens or other encumbrances. Assuming the truth and
accuracy of each Purchaser's representations and warranties contained in Section
4, the offers and sales of the Shares as contemplated hereby and the deliveries
to the Purchasers of the Shares are exempt from registration under the
Securities Act and under applicable state securities and "blue sky" laws. Such
Seller is the sole record and beneficial owner of such Shares. Upon delivery by
such Seller of the certificates representing the Shares being sold by such
Seller and payment therefor by the Purchasers as provided in Section 2.2 hereof,
the Purchasers will acquire valid and marketable title to such Shares free and
clear of any encumbrances, except for restrictions on transfer imposed by the
Securities Act and state securities laws and any restrictions arising as a
result of the Purchasers.
Section 3.6 Additional Representation. To the actual knowledge of
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▇▇▇▇▇▇ without having made any inquiry, the representations and warranties of
the Company to the Purchasers in Sections 3.6, 3.8, 3.9, 3.20 and 3.24 of the
Company Stock Purchase Agreement, an executed copy of which has been furnished
to ▇▇▇▇▇▇ along with any related schedules, are correct in all material
respects, except as disclosed in the Company's reports and filings under the
Exchange Act or on the disclosure schedules to the Company Stock Purchase
Agreement.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each of the Purchasers hereby represents and warrants, each as to
itself only and each severally and not jointly, to the Sellers as follows:
Section 4.1 Organization and Standing; Authorization;
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Enforceability; No Violations; Non-Affiliates.
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(a) Such Purchaser is duly organized, validly existing
and in good standing as a domestic corporation under the laws of the British
Virgin Islands and has all requisite corporate power and authority to own its
properties and assets and to carry on its business as it is now being conducted.
(b) Such Purchaser has the corporate power to execute,
deliver and perform its obligations under each of the Documents and has taken
all necessary action to authorize the execution, delivery and performance by it
of each of the Documents and to consummate the transactions contemplated hereby
and thereby. No other corporate proceedings on the part of such Purchaser are
necessary therefor.
(c) Such Purchaser has duly executed and delivered
this Agreement and, at the Closing, will have duly executed and delivered the
other Documents to which it is a party. This Agreement constitutes, and each of
the other Documents to which such Purchaser is a party, when executed and
delivered by such Purchaser and, assuming the due execution by the other parties
hereto and thereto, will constitute legal, valid and binding obligations of such
Purchaser, enforceable
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against it in accordance with their 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 (regardless of whether enforcement is sought in a
proceeding in equity or at law).
(d) For purposes of the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust
Improvement Act of 1976, as amended, and the rules promulgated thereunder, FEL
and PPG are not "affiliates" (as defined therein) of each other and the purchase
of the Shares by the Purchasers would not be aggregated.
Section 4.2 Consents. No consent, authorization or order of, or
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filing or registration with, any Governmental Authority or other person is
required to be obtained or made by such Purchaser for the execution, delivery
and performance by such Purchaser of this Agreement or any of the other
Documents or the consummation by the Purchaser of any of the transactions
contemplated hereby or thereby other than those required for the Closing that
will have been made or obtained on or prior to the Closing Date.
Section 4.3 Investment Representations. Such Purchaser is capable
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of evaluating the risks and merits of its investment in the Shares and has the
capacity to protect its owns interests. Such Purchaser is acquiring the Shares
for investment for its own account and not with a view to, or for resale in
connection with, any distribution thereof, and it has no present intention of
selling or distribution the Shares. It understands that the Shares have not
been registered under the Securities Act by reason of a specific exemption from
the registration provisions of the Securities Act which depends upon, among
other things, the bona fide nature of the investment intent as expressed herein.
Such Purchaser acknowledges that, because they have not been registered under
the Securities Act, the Shares it is purchasing must be held indefinitely unless
subsequently registered under the Securities Act or an exemption from such
registration is available.
ARTICLE V.
COVENANTS OF THE SELLERS
Section 5.1 Agreement to Take Necessary and Desirable Actions. The
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Sellers shall execute and deliver such other documents, certificates, agreements
and other writings and take such other actions as may be necessary, desirable or
reasonably requested by the Purchasers in order to consummate or implement as
expeditiously as practicable the transactions contemplated hereby.
Section 5.2 Other Consents and Approvals. The Sellers shall (a)
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use commercially reasonable efforts to obtain all necessary consents, waivers,
authorizations and approvals of all Governmental Authorities and of the Company,
all other persons, firms or corporations required in connection with the
execution, delivery and performance by them of this Agreement, any other
Document or any of the transactions contemplated hereby or thereby, and (b)
assist and cooperate with the Purchasers in preparing and filing all documents
required to be submitted by the Purchasers to any Governmental Authority in
connection with such transactions and in obtaining any governmental consents,
waivers, authorizations or approvals which may be required to be obtained by the
Purchasers in connection with such transactions (which assistance and
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cooperation shall include, without limitation, timely furnishing to the
Purchasers all information concerning the Sellers that counsel to the Purchasers
reasonably determines is required to be included in such documents or would be
helpful in obtaining any such required consent, waiver, authorization or
approval).
ARTICLE VI.
COVENANTS OF EACH PURCHASER
Section 6.1 Agreement to Take Necessary and Desirable Actions. The
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Purchaser shall execute and deliver such other documents, certificates,
agreements and other writings and take such other actions as may be necessary,
desirable or reasonably requested by the Sellers in order to consummate or
implement as expeditiously as practicable the transactions contemplated hereby.
Section 6.2 Compliance with Conditions; Commercially Reasonable
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Efforts. The Purchaser shall use commercially reasonable efforts to cause all of
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the obligations imposed upon it in this Agreement to be duly complied with and
to cause all conditions precedent to the obligations of the Company and the
Purchasers to be satisfied. Upon the terms and subject to the conditions of this
Agreement, the Purchaser shall use its best efforts to take, or cause to be
taken, all action, and to do, or cause to be done, all things necessary, proper
or advisable consistent with Applicable Law to consummate and make effective in
the most expeditious manner practicable the transactions contemplated hereby.
ARTICLE VII.
MISCELLANEOUS
Section 7.1 Survival of Representations and Warranties.
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(a) All representations, warranties, and agreements
(except agreements which are expressly required to be performed and are
performed in full on or before Closing) contained in this Agreement shall
survive such Closing for a period ending on the later to occur February 28, 2002
or fourteen (14) days following the Company's issuance of a press release or
similar public announcement with respect to the Company's financial results for
the year ended December 31, 2001 provided that in no event shall the foregoing
period survive for later than August 15, 2002, except that, with respect to
claims asserted pursuant to this Section 7.1 before the expiration of the
applicable representation, warranty and agreements such claims shall survive
until the date they are finally liquidated or otherwise resolved. All covenants
shall survive in accordance with their own terms. All statements as to factual
matters contained in any certificate executed and delivered by the parties
pursuant hereto shall be deemed to be representations, warranties and covenants
by such party hereunder. No claim may be commenced under this Section 7.1 (or
otherwise) following expiration of the applicable period of survival, and upon
such expiration the Indemnifying Party shall be released from all liability with
respect to claims under each such section not theretofore made by the
Indemnifying Party. No right of indemnity against any claim of a third party
shall arise from any representation, warranty or covenant of an Indemnifying
Party herein contained, unless such third party claim is filed or lodged against
the Indemnified Party on or prior
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to the expiration of the applicable period of survival provided above, and all
other conditions hereunder are satisfied. A claim shall be made or commenced
hereunder by the Indemnified Party delivering to the Indemnifying Party a
written notice specifying in reasonable detail the nature of the claim, the
amount claimed (if known or reasonably estimable), and the factual basis for the
claim.
(b) (i) Each Seller, separately and not jointly,
agrees to indemnify and hold harmless, on an after-Tax basis, each of the
Purchasers and its partners, Affiliates, officers, directors, employees and duly
authorized agents and each of their affiliates and each other person controlling
such Purchaser or any of its Affiliates within the meaning of either section 15
of the Securities Act or section 20 of the Exchange Act and any partner of any
of them from and against all losses, claims, damages or liabilities resulting
from any claim, lawsuit or other proceeding by any person to which any party
indemnified under this clause may become subject which is related to or arises
out of any breach of the representations and warranties set forth in Sections
3.1, 3.2, 3.3, 3.4 and 3.5 of this Agreement by such Seller and will reimburse
each of the Purchasers and any other party indemnified under this clause for all
reasonable out-of-pocket expenses (including reasonable counsel fees and
disbursements) incurred by each Purchaser or any such other party indemnified
under this clause and further agrees that the indemnification and reimbursements
commitments herein shall apply whether or not such Purchaser or any such other
party indemnified under this clause is a formal party to any such lawsuits,
claims or other proceedings. The foregoing provisions are expressly intended to
cover reimbursement of legal and other expenses incurred in a deposition or
other discovery proceeding.
(ii) Notwithstanding the foregoing clause (i),
such Seller shall not be liable to any party otherwise entitled to
indemnification pursuant thereto: (A) in respect of any loss, claim, damage,
liability or expense to the extent the same is determined, in final judgment by
a court having jurisdiction, to have resulted from the gross negligence or
willful misconduct of such party or (B) for any settlement effected by such
party without the written consent of such Seller, which consent shall not be
unreasonably withheld or delayed.
(c) If a person entitled to indemnity hereunder (an
"Indemnified Party") asserts that any party hereto (the "Indemnifying Party")
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has become obligated to the Indemnified Party pursuant to Section 7.1(b), or if
any suit, action, investigation, claim or proceeding is begun, made or
instituted as a result of which the Indemnifying Party may become obligated to
the Indemnified Party hereunder, the Indemnified Party agrees to notify the
Indemnifying Party promptly and to cooperate with the Indemnifying Party, at the
Indemnifying Party's expense, to the extent reasonably necessary for the
resolution of such claim or in the defense of such suit, action or proceeding,
including making available any information, documents and things in the
possession of the Indemnified Party which are reasonably necessary therefor.
Notwithstanding the foregoing notice requirement, the right to
indemnification hereunder shall not be affected by any failure to give, or delay
in giving, notice unless, and only to the extent that, the rights and remedies
of the Indemnifying Party shall have been materially prejudiced as a result of
such failure or delay.
(d) In fulfilling its obligations under this Section
7.1, after providing each Indemnified Party with a written acknowledgment of any
liability under this Section 7.1 as
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between such Indemnified Party and the Indemnifying Party, the Indemnifying
Party shall have the right to investigate, defend, settle or otherwise handle,
with the aforesaid cooperation, any claim, suit, action or proceeding brought by
a third party in such manner as the Indemnifying Party may in its sole
discretion deem appropriate; provided, however, that (i) counsel retained by the
Indemnifying Party is reasonably satisfactory to the Indemnified Party and (ii)
the Indemnifying Party will not consent to any settlement imposing any
obligations on any other party hereto, unless such party has consented in
writing to such settlement. Notwithstanding anything to the contrary contained
herein, the Indemnifying Party may retain one firm of counsel to represent all
Indemnified Parties in such claim, action or proceeding; provided, however, that
in the event that the defendants in, or targets of, any such claim, action or
proceeding include more than one Indemnified Party, and any Indemnified Party
shall have reasonably concluded, based on the opinion of its own counsel, that
there may be one or more legal defenses available to it which are in conflict
with those available to any other Indemnified Party, then such Indemnified Party
may employ separate counsel to represent or defend it or any other person
entitled to indemnification and reimbursement hereunder with respect to any such
claim, action or proceeding in which it or such other person may become involved
or is named as defendant and the Indemnifying Party shall pay the reasonable
fees and disbursement of such counsel. Notwithstanding the Indemnifying Party's
election to assume the defense or investigation of such claim, action or
proceeding, the Indemnified Party shall have the right to employ separate
counsel at the expense of the Indemnifying Party and to direct the defense or
investigation of such claim, action or proceeding if (A) in the written opinion
of counsel to the Indemnified Party, use of counsel of the Indemnifying Party's
choice could reasonably be expected to give rise to a conflict of interest, or
(B) the Indemnifying Party shall not have employed counsel reasonably
satisfactory to the Indemnified Party to represent the Indemnified Party within
a reasonable time (as determined in the light of the facts and circumstances
surrounding such event), but in no event shall such time exceed twenty (20)
Business Days, after notice of the assertion of any such claim or institution of
any such action or proceeding. In all other situations, the Indemnified Party
shall have the right to participate in the defense or investigation of such
claim, action or proceeding if the Indemnifying Party shall authorize the
Indemnified Party to employ separate counsel at the Indemnifying Party's expense
or if the fees and expenses of counsel for the Indemnified Party shall be borne
by the Indemnified Party.
(e) If for any reason (other than the gross negligence
or willful misconduct referred to in subclause (b)(ii) above) the foregoing
indemnification by a Seller is unavailable to any Indemnified Party or is
insufficient to hold it harmless as and to the extent contemplated by subclauses
(b), (c) and (d) above, then such Seller shall contribute to the amount paid or
payable by such Indemnified Party as a result of such loss, claim, damage or
liability in such proportion as is appropriate to reflect the relative benefits
received by such Seller, on the one hand, and the Purchasers and any other
applicable Indemnified Party, as the case may be, on the other hand, as well as
any other relevant equitable considerations.
Section 7.2 Notices. All notices, demands, requests, consents,
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approvals or other communications (collectively, "Notices") required or
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permitted to be given hereunder or which are given with respect to this
Agreement shall be in writing and shall be personally served, delivered by a
reputable air courier service with tracking capability, with charges prepaid, or
transmitted by hand delivery or facsimile, addressed as set forth below, or to
such other address as such party shall have specified most recently by written
notice. Notice shall be deemed given on the date of service or
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transmission if personally served or transmitted by facsimile, provided the
sender receives evidence of complete transmission without error. Notice
otherwise sent as provided herein shall be deemed given on the next business day
following delivery of such notice to a reputable air courier service.
If to the Sellers, to it at:
Mr. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ Digital Corporation
Five High Ridge Park
Stamford, Connecticut 06905
Attention: ▇▇▇ ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Purchasers, as follows:
FORTHCOMING ERA LIMITED
Offshore Incorporations Limited
P.O. Box 957
Offshore Incorporations Centre
Road Town, Tortola
British Virgin Islands
with a copy to:
▇▇▇▇▇▇▇▇▇ WHAMPOA LIMITED
▇▇/▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
Attention: Company Secretary
Facsimile: (▇▇▇) ▇▇▇▇ ▇▇▇▇
and:
PRIME PRO GROUP LIMITED
▇/▇ ▇/▇, ▇▇▇▇▇▇ Kong Center
▇ ▇▇▇▇▇'▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇
▇▇▇▇ ▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ Ip
Facsimile: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Section 7.3 Governing Law. This Agreement and the rights and
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obligations of the parties hereunder shall be governed by, and construed in
accordance with, the laws of the State of New York, and each party hereto
submits to the non-exclusive jurisdiction of the state and federal courts within
the County of New York in the State of New York.
Section 7.4 Entire Agreement. This Agreement (including all
----------------
agreements entered into pursuant hereto and all certificates and instruments
delivered pursuant hereto and thereto) constitutes the entire agreement of the
parties hereto with respect to the subject matter hereof and supersedes all
prior and contemporaneous agreements, representations, understandings,
negotiations and discussions between the parties or their Affiliates, whether
oral or written, with respect to the subject matter hereof.
Section 7.5 Modifications and Amendments. No amendment,
----------------------------
modification or termination of this Agreement shall be binding upon any other
party unless executed in writing by the parties hereto intending to be bound
thereby.
Section 7.6 Waivers and Extensions. Any party to this Agreement
----------------------
may waive any right, breach or default which such party has the right to waive,
provided that such waiver will not be effective against the waiving party unless
it is in writing, is signed by such party, and specifically refers to this
Agreement. Waivers may be made in advance or after the right waived has arisen
or the breach or default waived has occurred. Any waiver may be conditional. No
waiver of any breach of any agreement or provision herein contained shall be
deemed a waiver of any preceding or succeeding breach thereof nor of any other
agreement or provision herein contained. No waiver or extension of time for
performance of any obligations or acts shall be deemed a waiver or extension of
the time for performance of any other obligations or acts.
Section 7.7 Titles and Headings. Titles and headings of sections
-------------------
of this Agreement are for convenience only and shall not affect the construction
of any provision of this Agreement.
Section 7.8 Exhibits and Schedules. Each of the annexes, exhibits
----------------------
and schedules referred to herein and attached hereto is an integral part of this
Agreement and is incorporated herein by reference.
Section 7.9 Expenses; Brokers. Each party shall pay its own costs
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and expenses in connection with the negotiation and execution of this Agreement
and the transactions contemplated hereby, including without limitation, fees and
disbursements of counsel, financial advisors and accountants. The Sellers shall
pay any and all stamp, transfer and other similar Taxes payable or determined to
be payable in connection with the execution and delivery of this Agreement or
the transfer of the Shares, and shall save and hold each of the Purchasers
harmless from and against any and all liabilities with respect to or resulting
from any delay in paying, or omission to
11
pay, such Taxes. Each of the parties represents to the others that neither it
nor any of its Affiliates has used a broker or other intermediary, in connection
with the transactions contemplated by this Agreement for whose fees or expenses
any other party will be liable and respectively agrees to indemnify and hold the
others harmless from and against any and all claims, liabilities or obligations
with respect to any such fees or expenses asserted by any person on the basis of
any act or statement alleged to have been made by such party or any of its
Affiliates.
Section 7.10 Press Releases and Public Announcements. All press
---------------------------------------
releases and similar public announcements relating to the transactions
contemplated by the Documents shall be made only if mutually agreed upon by the
Sellers and each of the Purchasers, except to the extent that such disclosure
is, in the opinion of counsel, required by law or by stock exchange regulation;
provided that any such required disclosure shall only be made, to the extent
consistent with law, after consultation with each of the Purchasers.
Section 7.11 Assignment; No Third Party Beneficiaries. This
----------------------------------------
Agreement and the rights, duties and obligations hereunder may not be assigned
or delegated by either the Sellers or the Purchasers without the prior written
consent of the other parties hereto; provided that each Purchaser may assign or
delegate its rights, duties and obligations hereunder to a Permitted Transferee
or to such other person as may be reasonably satisfactory to the Sellers. Except
as provided in the preceding sentence, any assignment or delegation of rights,
duties or obligations hereunder made without the prior written consent of the
other parties hereto shall be void and of no effect. This Agreement and the
provisions hereof shall be binding upon and shall inure to the benefit of each
of the parties and their respective successors and permitted assigns. This
Agreement is not intended to confer any rights or benefits on any persons that
are not party hereto other than as expressly set forth in Sections 7.1 and 7.11.
Section 7.12 Severability. This Agreement shall be deemed
------------
severable, and the invalidity or unenforceability of any term or provision
hereof shall not affect the validity or enforceability of this Agreement or of
any other term or provision hereof. Furthermore, in lieu of any such invalid or
unenforceable term or provision, the parties hereto intend that there shall be
added as a part of this Agreement a provision as similar in terms to such
invalid or unenforceable provision as may be possible and be valid and
enforceable.
Section 7.13 Counterparts; Facsimile. This Agreement may be
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executed in multiple counterparts, each of which shall be deemed an original,
and all of which taken together shall constitute one and the same instrument.
All documents and closing deliveries for the transactions contemplated by this
Agreement may be delivered by a party at the Closing via facsimile; provided,
that, the originally executed signature pages and original documents are
delivered to the appropriate parties within two (2) business days following the
Closing.
Section 7.14 Further Assurances. Each party hereto, upon the
------------------
request of any other party hereto, shall do all such further acts and execute,
acknowledge and deliver all such further instruments and documents as may be
necessary or desirable to carry out the transactions contemplated by this
Agreement, including, in the case of the Sellers, such acts, instruments and
documents as may be necessary or desirable to convey and transfer to each
Purchaser the Shares to be purchased by it hereunder.
12
Section 7.15 Remedies Cumulative; No Consequential Damages. The
---------------------------------------------
remedies provided herein shall be cumulative and shall not preclude the
assertion by any party hereto of any other rights or the seeking of any remedies
against the other party hereto. In no event shall any party be liable to another
party or to any indemnitee hereunder for any special or consequential damages
arising in connection with this Agreement or the purchase and sale of the Shares
pursuant hereto.
* * *
13
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
_____________________________
▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇ IRREVOCABLE
CREDIT TRUST
By:__________________________
Name:
Title:
PRIME PRO GROUP LIMITED
By:__________________________
Name:
Title:
FORTHCOMING ERA LIMITED
By:__________________________
Name:
Title:
EXHIBIT A
---------
Shares to be Purchased
----------------------
Purchaser Sellers No. of Aggregate
Shares Purchase Price
Prime Pro Group Limited ▇▇▇ ▇▇▇▇▇▇ 4,491,861 $9,432,908.10
Prime Pro Group Limited ▇▇▇ ▇. ▇▇▇▇▇▇ 1,150,000 $2,415,000.00
Irrevocable Credit
Trust
Forthcoming Era Limited ▇▇▇ ▇▇▇▇▇▇ 4,491,861 $9,432,908.10
Forthcoming Era Limited ▇▇▇ ▇. ▇▇▇▇▇▇ 1,150,000 $2,415,000.00
Irrevocable Credit
Trust