CONTRIBUTION AND MEMBERSHIP INTEREST PURCHASE AGREEMENT DATED AS OF JANUARY 15, 2010 BY AND AMONG DAL GROUP, LLC (“BUYER”), DAVID J. STERN, LAW OFFICES OF DAVID J. STERN, P.A. (“DJS”), PROFESSIONAL TITLE AND ABSTRACT COMPANY OF FLORIDA, INC. (“PTA”),...
Exhibit
4.2
EXECUTION
COPY
CONTRIBUTION
AND MEMBERSHIP INTEREST
PURCHASE
AGREEMENT
DATED
AS OF JANUARY 15, 2010
BY
AND AMONG
DAL
GROUP, LLC
(“BUYER”),
▇▇▇▇▇
▇. ▇▇▇▇▇,
LAW
OFFICES OF ▇▇▇▇▇ ▇. ▇▇▇▇▇, P.A.
(“DJS”),
PROFESSIONAL
TITLE AND ABSTRACT COMPANY OF FLORIDA, INC.
(“PTA”),
DEFAULT
SERVICING, INC.
(“DSI”),
▇▇▇
▇. ▇▇▇▇▇,
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇,
FLATWORLD
DAL LLC
(“FLATWORLD”),
FORTUNA
CAPITAL PARTNERS LP
(“FORTUNA”),
DJS
PROCESSING, LLC,
PROFESSIONAL
TITLE AND ABSTRACT COMPANY OF FLORIDA, LLC,
DEFAULT
SERVICING, LLC
AND
CHARDAN
▇▇▇▇ ▇▇▇▇▇ ACQUISITION CORP.
(“CHARDAN”)
Table
of Contents
| Page | ||
| ARTICLE 1 | DEFINITIONS | 2 |
| 1.1 | Definitions | 2 |
| 1.2 | Terms Generally; Certain Rules of Construction | 9 |
| ARTICLE 2 | DAL MEMBERSHIP CONTRIBUTION AND ACQUISITION OF TARGET BUSINESS | 10 |
| 2.1 | Chardan Capital Contribution for DAL Membership Interest | 10 |
| 2.2 | Contribution and Purchase of Target Business | 10 |
| 2.3 | Existing Members Equity | 10 |
| 2.4 | Payment of the Initial Cash and ▇▇▇▇▇ Deferral Note | 10 |
| 2.5 | Payment of the Post-Closing Cash | 10 |
| 2.6 | Equity Issuance | 11 |
| 2.7 | Working Capital Adjustment. | 11 |
| 2.8 | Closing | 14 |
| 2.9 | Endorsements; Additional Documents. | 14 |
| 2.10 | Allocation of the Purchase Price. | 15 |
| 2.11 | FlatWorld Proceeds | 15 |
| ARTICLE 3 | REPRESENTATIONS AND WARRANTIES OF SELLERS, SELLER CONTROLLING PARTY AND NEWLY-FORMED LLCs WITH RESPECT TO SELLER, SELLER ONTROLLING PARTY AND THE NEWLY-FORMED LLCS | 15 |
| ARTICLE 4 | REPRESENTATIONS AND WARRANTIES OF EACH SELLER AND SELLER CONTROLLING PARTY WITH RESPECT TO THE NEWLY-FORMED LLCS | 16 |
| ARTICLE 5 | REPRESENTATIONS AND WARRANTIES OF BUYER, FLATWORLD, GUPTA AND ▇▇▇▇▇▇▇ | 16 |
| ARTICLE 6 | REPRESENTATIONS AND WARRANTIES OF CHARDAN | 16 |
| ARTICLE 7 | CONDITIONS TO CLOSING AND CLOSING DELIVERIES | 16 |
| 7.1 | Conditions to Obligations of Buyer | 16 |
| 7.2 | Conditions to Obligations of Sellers | 19 |
| 7.3 | Conditions to Obligations of Chardan | 21 |
| 7.4 | Special Condition to Obligations of Buyer | 22 |
| ARTICLE 8 | RESTRICTIVE COVENANTS | 22 |
i
| ARTICLE 9 | OTHER COVENANTS AND AGREEMENTS | 22 |
| 9.1 | Sellers | 22 |
| 9.2 | Buyer | 22 |
| 9.3 | Chardan | 22 |
| ARTICLE 10 | GOVERNING LAW; DISPUTE RESOLUTION. | 22 |
| 10.1 | Governing Law | 22 |
| 10.2 | Consent to Jurisdiction | 23 |
| ARTICLE 11 | INDEMNITY | 23 |
| ARTICLE 12 | TERMINATION | 23 |
| 12.1 | Termination of Agreement | 23 |
| 12.2 | Effect of Termination | 24 |
| ARTICLE 13 | MISCELLANEOUS PROVISIONS | 24 |
| 13.1 | Amendment and Modifications | 24 |
| 13.2 | Waiver of Compliance | 24 |
| 13.3 | Expenses | 24 |
| 13.4 | Further Assurances | 25 |
| 13.5 | No Waiver of Rights | 25 |
| 13.6 | Notices | 25 |
| 13.7 | Assignment | 27 |
| 13.8 | Enforcement | 27 |
| 13.9 | Counterparts | 27 |
| 13.10 | Headings | 27 |
| 13.11 | Entire Agreement | 27 |
| 13.12 | Third Party Beneficiaries | 27 |
| 13.13 | Severability | 27 |
| 13.14 | Specific Performance | 28 |
| EXHIBITS | ||
| SCHDULES |
ii
This
Contribution and Membership Interest Purchase Agreement (including the Exhibits
and Schedules hereto, this “Agreement”) is made and
entered into as of this 15th day
of January, 2010 (the “Effective Date”), by and among
DAL Group, LLC, a limited liability company organized under the laws of the
State of Delaware (“DAL”
or “Buyer”), ▇▇▇▇▇ ▇.
▇▇▇▇▇, the Law Offices of ▇▇▇▇▇ ▇. ▇▇▇▇▇, P.A., a professional association
licensed to practice law in the State of Florida (“DJS”), Professional Title and
Abstract Company of Florida, Inc. a corporation organized under the laws of the
State of Florida (“PTA”), Default Servicing,
Inc., a corporation organized under the laws of the State of Florida (“DSI,” each of DJS, PTA and DSI
is a “Seller” hereunder
and shall be referred to herein collectively as the “Sellers”), ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
(“▇▇▇▇▇▇▇”), ▇▇▇ ▇.
▇▇▇▇▇ (“Gupta”),
FlatWorld DAL LLC, a limited liability company organized under the laws of the
State of Delaware (“FlatWorld”), Fortuna Capital
Partners LP, a limited partnership organized under the laws of the State of
Delaware (“Fortuna,” and
collectively with FlatWorld, the “Existing Members”), DJS
Processing, LLC, a limited liability company organized under the laws of the
State of Delaware (“DJS
LLC”), Professional Title and Abstract Company of Florida, LLC, a limited
liability company organized under the laws of the State of Delaware (“PTA LLC”), Default Servicing,
LLC, a limited liability company organized under the laws of the State of
Delaware (“DSI LLC”),
and Chardan 2008 China Acquisition Corp., a corporation organized under the laws
of the British Virgin Islands (“Chardan”). All
capitalized terms not defined herein shall have the meanings set forth in the
Master Agreement.
W I T N E S S E T H:
WHEREAS, the Buyer proposes to
acquire, pursuant to the terms of this Agreement, all of the issued and
outstanding membership interests in each of (i) DJS LLC (the “DJS LLC Interests”) from DJS,
(ii) PTA LLC (the “PTA LLC
Interests”) from PTA, and (iii) DSI LLC (the “DSI LLC Interests”) from DSI,
all in accordance with the terms and provisions of this Agreement;
and
WHEREAS, affiliates of the
Existing Members formed Buyer on March 20, 2007 and, as of the time immediately
prior to the consummation of the transactions contemplated by this Agreement,
the Existing Members are the sole members of DAL; and
WHEREAS, on December 10, 2009,
the parties to this Agreement, along with the Newly-Formed LLCs, entered into
the Master Agreement, which provides for the acquisition of the Target Business
by Buyer from Sellers, partly by sale thereof by Sellers to Buyer, and partly by
contribution thereof by Sellers to Buyer, upon the satisfaction of certain
conditions, including the securing of financing for such purpose;
and
WHEREAS, Chardan desires to
contribute to Buyer pursuant to the terms of this Agreement, in exchange for a
majority of the LLC membership interests in Buyer, capital sufficient for Buyer
to purchase a portion of the Acquired Interests, which Acquired Interests
represent all of the assets, business and operations of the Target Business,
from each of DJS, PTA and DSI, respectively, all in accordance with the terms
and provisions of this Agreement.
NOW, THEREFORE, in
consideration of the premises and the mutual covenants and agreements
hereinafter set forth, the parties hereto hereby agree as follows:
ARTICLE
1
DEFINITIONS
1.1 Definitions. As
used in this Agreement and the Exhibits and Schedules delivered pursuant hereto,
and to the extent incorporated in other Transaction Documents, the following
definitions shall apply:
“Acquired Interests” means,
collectively, the DJS LLC Interests, the PTA LLC Interests, and the DSI LLC
Interests.
“Acquisition Proposal” has the
meaning set forth in Section 9.7 of the Master Agreement.
“Affiliate” means, as to any
Person, a Person that directly, or indirectly through one or more
intermediaries, controls or is controlled by, or is under common control with,
the Person specified. With respect to any natural person, the term
Affiliate shall also include any member of said person’s immediate family, any
family limited partnership or similar entity for said person and any trust,
voting or otherwise, of which said person is a trustee or of which said person
or any of said person’s immediate family is a beneficiary. With
respect to any trust, the term Affiliate shall also include any beneficiary or
trustee of such trust. For purposes of the foregoing, the term “control” and
variations thereof means the possession of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ownership of voting securities, by Contract or otherwise.
“Agreement” has the meaning
set forth in the recitals.
“Assumed Liabilities” has the
meaning set forth in the Master Agreement.
“Business Day” means any day
other than a Saturday, Sunday or legal holiday in connection with which banks in
New York, New York are authorized or permitted to close.
“Buyer” has the meaning set
forth in the Preamble.
“Buyer Indebtedness” means all
payment obligations (including obligations under capitalized leases) of Buyer to
any bank, insurance company, finance company or other institutional lender or
other Person for money borrowed and obligations evidenced by the Deferral Notes;
provided, however, that Buyer
Indebtedness shall not include trade payables and accruals, Post-Closing Cash,
the Chardan Capital Fee or the FlatWorld Warrant Proceeds.
“Buyer Material Adverse
Change” has the meaning set forth in the definition of DAL Material
Adverse Change in the Master Agreement.
“Chardan Initial Capital
Contribution” has the meaning set forth in the Master
Agreement.
2
“Chardan Capital Fee” means
$2,000,000.
“Chardan Deferral Note” means
a promissory note in the principal amount of $250,000, in the form attached
hereto as Exhibit
A., and the Subsidiaries Guaranties thereof.
“Chardan Material Adverse
Change” has the meaning set forth in the Master Agreement.
“Chardan Private Placement
Shares” has the meaning set forth in the Master Agreement.
“Chardan Services Agreement”
means the Chardan Services Agreement dated the date hereof, between Chardan
Capital, LLC and DAL, in the form attached hereto as Exhibit
B.
“Chardan Warrant Cash” has the
meaning set forth in the Master Agreement.
“Chardan Warrants” has the
meaning set forth in the Master Agreement.
“Claims” means any and all
notices, claims, demands, Legal Proceedings, deficiencies Orders, and Losses
assessed or sustained, including the defense or settlement of any such Claim and
the enforcement of all rights to indemnification under this
Agreement.
“Closing Date” means the date
that is no more than three (3) Business Days following the satisfaction or
waiver of the conditions set forth in Article 7.
“Closing” means the
consummation of the transactions contemplated by this Agreement in accordance
herewith, which shall be deemed to occur as of 11:59 p.m. on the day of the
Closing Date.
“Code” means the United States
Internal Revenue Code of 1986, as amended.
“Common Interest” means the
Common Membership Interests of Buyer, issued pursuant to the DAL Operating
Agreement.
“Consent” means any consent,
authorization or approval.
“Contributed Asset” means any
asset contributed by Sellers to the Newly-Formed LLCs, pursuant to a
Contribution Agreement, or otherwise.
“Contribution Agreements” has
the meaning set forth in the Master Agreement.
“Contract” means any contract,
agreement, commitment, arrangement or understanding (whether written or oral,
whether formal or informal).
“Conveyance Documents” has the
meaning provided for in Section 2.9(b).
“DAL” has the meaning set
forth in the Preamble.
3
“DAL Acquisition Debt” means
$15,188,735.97 in financing arranged for by DAL to partially fund the purchase
of the Target Business.
“DAL Chardan Equity” means (a)
10,663,866 Common Interests in Buyer, plus (b) 11,166,666 DAL Warrants of Buyer,
plus (c) DAL Warrants of Buyer entitling the holder thereof to Common Interests
in Buyer upon the exercise of each Underwriter Option of Chardan, plus (d) a
number of Common Interests in Buyer equal to the number of Chardan Private
Placement Shares issued by Chardan on or before Closing; provided, however, if Chardan
does not make the full Chardan Initial Capital Contribution to Buyer because a
portion of Chardan’s stockholders elect to have their stock redeemed, then the
number of Common Interests in Buyer will be reduced by an amount equal to the
number of shares of Chardan Common Stock so redeemed.
“DAL Expenses” has the meaning
set forth in Section 13.3.
“DAL Operating Agreement” has the meaning set
forth in the Master Agreement.
“▇▇▇ ▇▇▇▇▇ Equity” has the
meaning set forth in Exhibit
C to this Agreement.
“DAL Warrants” means the
Warrants issued by DAL to Chardan as part of the Equity Consideration, each
exercisable into one Common Interest, at a price of $5.00, upon the exercise of
each Chardan Warrant, or entitling the holder thereof to Common Interests of DAL
upon the exercise of the Underwriter Options issued by Chardan to each
underwriter of Chardan’s initial public offering.
“Deferral Notes” means the
▇▇▇▇▇ Deferral Note, the ▇▇▇▇▇▇ Deferral Note, the Underwriters’ Deferral Note
and the Chardan Deferral Note.
“DJS LLC Interests” has the
meaning set forth in the Recitals.
“DJS” has the meaning set forth
in the Preamble.
“DSI LLC Interests” has the
meaning set forth in the Recitals.
“DSI” has the meaning set forth
in the Preamble.
“EBITDA” means earnings before
interest, taxes, depreciation and amortization, as determined in accordance with
U.S. GAAP, consistently applied by the Buyer in a manner consistent with the
Audited Financials.
“Employment Agreement” has the
meaning set forth in the Master Agreement.
“Equity Consideration” means
the DAL Chardan Equity, the ▇▇▇ ▇▇▇▇▇ Equity and the Existing Members
Equity.
“Escrow Agent” means US Bank
and Trust Company.
“Escrow Agreement” has the
meaning set forth in the Master Agreement.
4
“Escrowed Equity” means the
Series A Preferred Interests of DJS, PTA and DSI with an aggregate value as of
the Closing of $15,000,000 deposited with the Escrow Agent pursuant to the
Escrow Agreement and Section 11 of the Master Agreement.
“Existing Members” has the
meaning set forth in the Preamble.
“Existing Members Equity” means
(a) 1,500,000 Common Interests in Buyer, plus (b) 153,334 Series B1 Preferred
Interests in Buyer, plus (c) 153,334 Series B2 Preferred Interests in Buyer,
plus (d) 153,333 Series B3 Preferred Interests in Buyer, plus (e) 153,333 Series
B4 Preferred Interests in Buyer, plus (f) 153,333 Series B5 Preferred Interests
in Buyer.
“Facilities Sharing Agreement”
has the meaning set forth in the Master Agreement.
“FlatWorld Additional Warrant
Proceeds” means $1,000,000 payable to FlatWorld as provided in Section
2.5.
“FlatWorld Closing Proceeds”
means $1,000,000 payable to FlatWorld at Closing in cash, in accordance with
Section 13.3.
“FlatWorld Services Agreement”
means the FlatWorld Services Agreement dated the date hereof, between
FlatWorld and DAL, in the form attached hereto as Exhibit
D.
“FlatWorld Warrant Proceeds”
means $2,000,000 payable as provided in Section 2.5 to FlatWorld.
“Governmental Entity” has the
meaning set forth in the Master Agreement.
“Indebtedness” has the meaning
set forth in the Master Agreement.
“Initial Cash” has the meaning
set forth in the Master Agreement.
“Law” has the meaning set
forth in the Master Agreement.
“Lease Agreements” has the
meaning set forth in the Master Agreement.
“Legal Proceedings” has the
meaning set forth in the Master Agreement.
“Losses” has the meaning set
forth in the Master Agreement.
“Letter Agreements” has the
meaning set forth in the Master Agreement.
“Master Agreement” means the
Master Acquisition Agreement dated December 10, 2009 among Buyer, DJS, PTA, DSI,
DJS LLC, PTA LLC, DSI LLC, Valenty, Gupta, FlatWorld, Fortuna and Chardan in
connection with the acquisition of the DJS LLC Interests, PTA LLC Interests and
the DSI LLC Interests from the respective Sellers.
“Material Adverse Change” has
the meaning set forth in the Master Agreement.
“Material Adverse Effect” has
the meaning set forth in the Master Agreement.
5
“M&A” has the meaning set
forth in Section 7.3(a).
“Measurement Period” means each
calendar month beginning after the Closing Date.
“Net EBITDA” means the sum of
EBITDA for the Measurement Period (which EBITDA number shall already have
deducted from it all Taxes (and only such Taxes) of the type that are not
described in (b) below), minus, to the extent not
already subtracted in calculating EBITDA for the Measurement Period, (a) debt
service on Buyer Indebtedness, (b) income, gross receipts and other similar
Taxes paid in cash during the Measurement Period by Buyer, including Tax
distributions under Section 5.4 of the DAL Operating Agreement, (c) capital
expenditures paid in cash during the Measurement Period by Buyer, (d) increases
in working capital (excluding cash and cash equivalents) for the Measurement
Period, and (e) payments of the FlatWorld Additional Warrant Proceeds during the
Measurement Period, plus
(f) decreases in working capital (excluding cash and cash equivalents) for the
Measurement Period, in each case, as determined in accordance with GAAP,
consistently applied by the Buyer in a manner consistent with the Audited
Financials, multiplied by 90 percent (.90).
“Newly-Formed LLC” has the
meaning set forth in the Master Agreement.
“Newly-Formed LLC Plans” has
the meaning set forth in the Master Agreement.
“Order” means any decree,
injunction, judgment, order, award, ruling, assessment or writ by a court,
administrative agency, other Governmental Entity, arbitrator or arbitration
panel
“Permits” means any material
license, franchise, permit, order or approval or other similar authorization
affecting, or relating in any way to, the Target Business as conducted by any
Seller, together with the name of the Governmental Entity issuing the
same.
“Person” means any individual,
partnership, joint venture, corporation, limited liability company, trust,
estate, unincorporated organization or Governmental Entity.
“Post-Closing Cash” means
$35,000,000.
“Pre-Closing Period” means any
period that ends on or before the Closing Date or, with respect to a period that
includes but does not end on the Closing Date, the portion of such period
through and including the day of the Closing Date.
“PTA LLC Interests” has the
meaning set forth in the Recitals.
“PTA” has the meaning set
forth in the Preamble.
“Registration Rights
Agreement” has the meaning set forth in the Master
Agreement.
“Restricted Period” means (1)
with respect to any Seller and the Seller Controlling Party under this
Agreement, the time period commencing on the Closing Date and ending on the date
that is the fifth (5th)
anniversary of the day of the Closing Date; and (2) with respect to the Seller
Controlling Party, in connection with that certain Confidentiality and
Noncompetition Agreement, dated as of the date hereof, executed by Seller
Controlling Party (the “▇▇▇▇▇
NDA”), the “Restrictive Period”
provided for therein, or the period provided for in (1) above, whichever is
longer.
6
“Restrictions” means all
liens, pledges, encumbrances, security interests, Taxes, voting trusts, options,
warrants, calls and rights of first refusal, other than those set forth in the
DAL Operating Agreement.
“Restrictive Covenants” means
Sections 4, 5, 6(a)-(b) and 7 of the ▇▇▇▇▇ NDA.
“▇▇▇▇▇▇ Deferral Note” means a
promissory note in the principal amount of $500,000, in the form attached hereto
as Exhibit
E, and the Subsidiaries Guaranties thereof.
“Seller” has the meaning set
forth in the Preamble.
“Seller Controlling Party”
means ▇▇▇▇▇ ▇. ▇▇▇▇▇.
“Series A Preferred Interest”
means the Series A Preferred Interests of Buyer, issued pursuant to the DAL
Operating Agreement.
“Series B1 Preferred Interest”
means the Series B1 Preferred Interests of Buyer, issued pursuant to the DAL
Operating Agreement.
“Series B2 Preferred Interest”
means the Series B2 Preferred Interests of Buyer, issued pursuant to the DAL
Operating Agreement.
“Series B3 Preferred Interest”
means the Series B3 Preferred Interests of Buyer, issued pursuant to the DAL
Operating Agreement.
“Series B4 Preferred Interest”
means the Series B4 Preferred Interests of Buyer, issued pursuant to the DAL
Operating Agreement.
“Series B5 Preferred Interest”
means the Series B5 Preferred Interests of Buyer, issued pursuant to the DAL
Operating Agreement.
“Services Agreement” has the
meaning set forth in the Master Agreement.
“▇▇▇▇▇ Deferral Note” means a
promissory note in the principal amount equal to $110,969,080, plus (i) the
expenses incurred in connection with the Transactions and the DAL Acquisition
Debt paid or reimbursed by Buyer at Closing, (ii) amounts due to Bank of
America, N.A. at Closing under DJS’ line of credit with Bank of America, N.A.,
(iii) the amount of Seller’s outstanding letters of credit at Closing, and (iv)
the minimum availability requirement under the DAL Acquisition Debt, if any,
minus (v) the principal amount of the DAL Acquisition Debt outstanding at
Closing, including the amount of letters of credit issued under the DAL
Acquisition Debt at Closing, and (vi) the Chardan Initial Capital Contribution,
issued by the Buyer to the Sellers on the terms set forth in Exhibit
F.
“▇▇▇▇▇ NDA” has the meaning
set forth in the definition of “Restricted
Period”.
7
“▇▇▇▇▇ Participants” has the
meaning set forth in the Master Agreement.
“Subsidiaries Guaranties”
means guaranties of the applicable obligation, in the form attached hereto as
Exhibit
G, provided by the Newly-Formed LLCs.
“Target Business” means,
collectively, (a) the non-legal residential mortgage foreclosure processing
business, and related service operations, of DJS LLC, (b) all of the business,
assets and operations of PTA LLC, and (c) all of the business, assets and
operations of DSI LLC.
“Target Cash Balance” means
$400,000.
“Tax” or “Taxes” means all federal,
state, local and foreign taxes, charges, fees, levies, deficiencies or other
assessments of whatever kind or nature imposed by any Governmental Entity
(including all net income, gross income, gross receipts, sales, use, ad valorem,
transfer, franchise, profits, license, withholding, payroll, employment,
unemployment, excise, estimated, severance, stamp, occupation, real property,
personal property, intangible property, occupancy, recording, minimum,
environmental and windfall profits taxes), including any liability therefore as
a result of Treasury Regulation Section 1.1502-6 or any similar provision of
applicable Law, or as a result of any Tax sharing or similar agreement, by
reason of being a successor-in-interest or transferee of another entity,
together with any interest, penalties and additions to tax or imposed
thereon.
“Tax Proceeding” means an
audit, examination, investigation, or Legal Proceeding relating to any Tax of
any Seller or Newly-Formed LLC.
“Tax Return” includes any
return (including any informational return), declaration, report, Claim for
refund or credit, information return or statement, and any amendment thereto,
including any consolidated, combined, unitary or separate return or other
document (including any related or supporting information or schedule), filed or
required to be filed with any Governmental Entity in connection with the
determination, assessment, collection or payment of Taxes or the administration
of any Laws, regulations or administrative requirements relating to
Taxes.
“Third Party” means any Person
other than any Seller, any Newly-Formed LLC or the Seller Controlling
Party.
“Transaction” or “Transactions” have the
meanings set forth in the Master Agreement.
“Transaction Documents” has the
meaning set forth in the Master Agreement.
“Trust Account” means the trust
account established upon the closing of Chardan’s initial public offering in the
amount of $54,300,000 representing certain proceeds received from such offering
and from a private placement consummated immediately prior to the closing of the
initial public offering.
“Underwriter Options” means
the options issued by Chardan to its underwriters as a portion of the
consideration paid to them in connection with Chardan’s initial public offering,
each Underwriter Option giving the holder the right to purchase for $8.80 a unit
of Chardan’s securities consisting of one Chardan ordinary share and a warrant
to purchase an additional Chardan ordinary share for $5.00.
8
“Underwriters’ Deferral Note”
means a promissory note in the principal amount of $1,100,000 in the form
attached hereto as Exhibit
H, and the Subsidiaries Guaranties thereof.
“US GAAP” means generally
accepted accounting principles, as applied in the United States.
“US GAAS” means generally
accepted auditing standards, as applied in the United States.
“Voting Agreement” has the
meaning set forth in the Master Agreement.
“Warrant Sale Agreement” means
that certain Warrant Sale Agreement, among Chardan, the ▇▇▇▇▇ Participants and
other parties, in the form attached hereto as Exhibit
I.
“Working Capital Adjustment”
means the Working Capital Adjustment provided for in Section 2.7.
1.2 Terms
Generally; Certain Rules of Construction. Definitions in this
Agreement and the other Transaction Documents shall apply equally to both the
singular and plural forms of the terms defined. Whenever the context
may require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words “include,” “includes” and “including” shall be deemed to
be followed by the phrase “without limitation”. All references in
this Agreement to Sections, Exhibits and Schedules shall be deemed references to
Sections of, and Exhibits and Schedules to, this Agreement, except as otherwise
provided. Unless otherwise expressly provided herein or unless the
context shall otherwise require, any references as of any time to the
organizational or constituent documents of any Person, to any Contract,
instrument or document or to any Law or any specific section or other provision
thereof, shall be deemed a reference to the foregoing as amended and
supplemented through such time (and, in the case of organizational or
constituent documents of any Person, to the form of such documents used in the
jurisdiction of the Person’s organization, and in the case of a Law
or specific section or other provision thereof, to any successor of such Law,
section or other provision). Any reference in this Agreement to a
“day” (without the
explicit qualification of Business Day) shall be interpreted as a reference to a
calendar day. If any action is to be taken or is required to be given
on or by a particular calendar day, and such calendar day is not a Business Day,
then such action or notice shall be considered timely if it is taken or given on
or before the next Business Day. Unless otherwise expressly provided
herein or unless the context shall otherwise require, any provision using a
defined term which is based on a specified relationship between one Person and
one or more other Persons shall, as of any time, refer only to such Persons who
have the specified relationship as of that particular
time. Expressions, in any form, regarding the “knowledge of” any Seller or
Newly-Formed LLC with regard to any matter refer to either the actual knowledge
of ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ (DJS and PTA only) and ▇▇▇▇▇
▇▇▇▇▇▇▇ (PTA only).
9
ARTICLE
2
DAL
MEMBERSHIP CONTRIBUTION AND ACQUISITION OF TARGET BUSINESS
2.1 Chardan
Capital Contribution for DAL Membership Interest. Upon the terms
and subject to the conditions of this Agreement, at the Closing, Chardan shall
contribute the Chardan Initial Capital Contribution to the capital of Buyer, in
exchange for the DAL Chardan Equity.
2.2 Contribution
and Purchase of Target Business. Upon the terms and subject to
the conditions of this Agreement, at the Closing, Buyer shall acquire from
Sellers and Sellers shall each contribute in part and sell in part and shall, in
whole, convey, transfer, assign and deliver to Buyer, free and clear of all
Restrictions, all right, title and interest of each Seller in, to and under the
DJS LLC Interests, the PTA LLC Interests, and the DSI LLC Interests, as
applicable, as more specifically set forth in Schedule 2.2, in
exchange for (i) the Initial Cash, the ▇▇▇▇▇ Deferral Note, the right to receive
the Post-Closing Cash, and Buyer’s assumption of the Assumed Liabilities, and
(ii) the ▇▇▇ ▇▇▇▇▇ Equity.
2.3 Existing
Members Equity. Upon the terms and subject to the conditions
of this Agreement, in connection with the Closing, the Existing Members’
existing membership interests in DAL shall be restated to reflect the Existing
Members Equity, free and clear of all Restrictions.
2.4 Payment
of the Initial Cash and ▇▇▇▇▇ Deferral Note. Upon satisfaction
or waiver of all conditions precedent contained in this Agreement, on the
Closing Date, the Buyer shall pay to the Sellers, the Initial Cash and deliver
to the Sellers the ▇▇▇▇▇ Deferral Note. The Initial Cash shall be
payable by wire transfer in immediately available funds, and shall be directed
by the Buyer to the respective accounts identified by Sellers.
2.5 Payment
of the Post-Closing Cash. Chardan shall use
any net cash proceeds paid to it from the exercise of the Chardan Warrants to
exercise DAL Warrants within 30 days following Chardan’s receipt of the
same. To the extent such net cash proceeds are received prior to the
Closing, Chardan shall use the same to exercise DAL Warrants at
Closing. The Buyer shall pay 89.74% of the Chardan Warrant Cash to
Sellers as Post-Closing Cash, as more specifically set forth in Schedule 2.5, 5.13%
of the Chardan Warrant Cash to FlatWorld in respect of the FlatWorld Warrant
Proceeds and 5.13% of the Chardan Warrant Cash to Chardan Capital, LLC in
respect of the Chardan Capital Fee. The Post-Closing Cash shall be
paid to Sellers in full no later than the fifth (5th)
anniversary of the Closing Date. The payment of the Post-Closing Cash
shall be guaranteed by the Newly-Formed LLCs and secured by all of the assets of
Buyer and the Newly-Formed LLCs, in a form reasonably acceptable to the
Sellers. If the Post-Closing Cash has not been paid in full on the
six-month “anniversary” of the Closing Date, then Sellers will be entitled to be
paid (a) the remainder of the Post-Closing Cash due them from both the Chardan
Warrant Cash (as provided above) and, except to the extent otherwise restricted
by the DAL Acquisition Debt, for each Measurement Period ending after such
six-month anniversary, payable within thirty (30) days following the end of the
Measurement Period, 89.74% of the Net EBITDA of Buyer (provided, however, that
the amount of Post-Closing Cash paid shall not in any event exceed $35,000,000,
exclusive of any late fees), until the Post-Closing
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Cash
shall be paid in full, and (b) a monthly late fee of (1) .25% of the unpaid
Post-Closing Cash as of the last day of each month, beginning after the
six-month “anniversary” of the Closing and ending on the eighteen-month
“anniversary” of the Closing, and (2) .67% of the unpaid Post-Closing Cash for
each month thereafter, added to the amount of unpaid Post-Closing Cash on the
last day of each month, until the Post-Closing Cash is paid in
full. Each of FlatWorld and Chardan Capital, LLC will be entitled to
5.13% of the Net EBITDA of Buyer until the FlatWorld Warrant Proceeds and the
Chardan Capital Fee, respectively, are paid in full. In the event
that the Post-Closing Cash is paid in full prior to the payment in full of the
FlatWorld Warrant Proceeds and the Chardan Capital Fee, then FlatWorld and
Chardan Capital, LLC will each thereafter be entitled to receive 50% of the
Chardan Warrant Cash and Net EBITDA of Buyer, payable as described above, until
the FlatWorld Warrant Proceeds and the Chardan Capital Fee are paid in
full. The Buyer shall pay 100% of the Chardan Warrant Cash (after
payment in full of the Post-Closing Cash, the FlatWorld Warrant Proceeds and the
Chardan Capital Fee), to FlatWorld in respect of the FlatWorld Additional
Warrant Proceeds. The FlatWorld Additional Warrant Proceeds shall be
paid to FlatWorld in full by the earlier to occur of (a) the one year
anniversary of the indefeasible repayment in full of the ▇▇▇▇▇ Deferral Note and
(b) January 15, 2012. Commencing on the Closing, a finance charge of
5% per annum (calculated on the basis of the actual number of days elapsed over
a year of 365 days and compounded annually) of the unpaid FlatWorld Additional
Warrant Proceeds balance (the “Finance Charge”) shall be
added to the outstanding unpaid FlatWorld Additional Warrant Proceeds balance
until such unpaid balance is paid in full under the terms hereof. If
any amounts due to FlatWorld are not paid within three (3) days following the
date upon which any such payment was due, the Finance Charge will increase to 8%
per annum. The Finance Charge shall be payable by Buyer quarterly, in
arrears, commencing on April 1, 2010, on each July 1st,
October 1st,
January 1st, and
April 1st
thereafter (or if such day is not a business day, on the first business day
immediately following such day), unless previously paid from the Chardan Warrant
Cash. If the FlatWorld Additional Warrant Proceeds have not been paid
in full by the date on which the ▇▇▇▇▇ Deferral Note shall have been
indefeasibly repaid in full (the “Trigger Date”), then FlatWorld
will be entitled to be paid the remainder of the unpaid FlatWorld Additional
Warrant Proceeds due to FlatWorld from both the Chardan Warrant Cash (as
provided above) and from the cash flow of Buyer (as provided below in the next
sentence), until the FlatWorld Additional Warrant Proceeds shall be paid in
full. On the first business day of each calendar month following the
Trigger Date, Buyer shall pay an amount to FlatWorld in respect of the FlatWorld
Additional Warrant Proceeds equal to (A) the remaining unpaid FlatWorld
Additional Warrant Proceeds as of the Trigger Date, divided by (B) twelve (12),
with all remaining FlatWorld Additional Warrant Proceeds paid in full by the end
of the twenty-fourth (24th)
month following the Closing Date.
2.6 Equity
Issuance. The ▇▇▇ ▇▇▇▇▇ Equity and the DAL Chardan Equity
shall be issued at the Closing by Buyer to Sellers and Chardan, respectively,
free and clear of all Restrictions, other than those contained in the DAL
Operating Agreement, this Agreement and the Master Agreement.
2.7 Working Capital
Adjustment.
(a) Closing Balance
Sheet. As promptly as practicable following the Closing Date
(but in no event later than thirty (30) Business Days after the Closing Date),
Buyer shall prepare, and cause McGladrey & ▇▇▇▇▇▇, LLP, the accountants of
Buyer (the “Buyer’s
Accountants”) to certify, a combined balance sheet of the Newly-Formed
LLCs (the “Closing Balance
Sheet”) which shall fairly present the financial position of Newly-Formed
LLCs as of the Closing Date.
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(b) Final Working Capital
Statement. In addition, the Buyer’s Accountant shall certify a working
capital statement (the “Final
Working Capital Statement”) setting forth the computation of the final
working capital amount derived therefrom as of the Closing Date (the “Final Working Capital”), which
statement shall be prepared in accordance with US GAAP as applied in preparing
the Audited Financials and in a manner consistent with the past practices of the
Sellers, except that no effect shall be given to any purchase accounting or
other similar adjustments resulting from the consummation of the transactions
contemplated in this Agreement or any other Transaction Document.
(c) Seller’s Access to Business
Records and Auditor Work Papers. During and after the
preparation of the Final Working Capital Statement until the Final Determination
Date, Buyer shall provide the Sellers and their advisors, at the Sellers’
request, with timely access to the records of Buyer relating to the Target
Business, Buyer’s Accountants and the work papers, trial balances and all
similar materials used in connection with the preparation of the Final Working
Capital Statement.
(d) Consistency in Seller’s
Accounting during Closing Audits. Buyer agrees, solely with
respect to the calculation of the Working Capital Adjustment, and without
restricting in any manner whatsoever Buyer’s right to take any such action that
would not affect such calculation, that following the Closing, Buyer will not
take any actions with respect to the accounting books, records, policies and
procedures of Newly-Formed LLCs on which the Closing Balance Sheet and the Final
Working Capital Statement are to be based that are not consistent with those
applied in preparing the Audited Financials.
(e) Buyer’s Notice of
Adjustment. Within five days of receipt of the Closing Balance
Sheet and the Final Working Capital Statement, Buyer shall promptly deliver a
notice to the Seller (the “Buyer’s Notice of Adjustment”)
setting forth its proposed adjustment, if any, of the ▇▇▇▇▇ Deferral Note as
contemplated in Section 2.4, along with a copy of the Closing Balance Sheet and
Final Working Capital Statement. Seller’s response to the Buyer’s
Notice of Adjustment is detailed in subsection (g) below.
(f) Calculation of Working
Capital Adjustment. Upon final determination of the Closing
Balance Sheet and the Final Working Capital in accordance with this Article 2,
the following amounts (the “Working Capital Adjustment”)
will be payable:
(i) if the
Final Working Capital exceeds $14,300,000, the amount of such excess shall be
added to the principal balance of the ▇▇▇▇▇ Deferral Note;
(ii) if the
Final Working Capital is less than $13,000,000, the amount of such deficiency
shall be treated as a principal payment by Buyer on the ▇▇▇▇▇ Deferral Note;
and
(iii) if the
Final Working Capital falls between $13,000,000 and $14,300,000, no adjustment
shall be made to the ▇▇▇▇▇ Deferral Note.
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(g) Seller’s Review of Buyer’s
Notice of Adjustment.
(i) Following
receipt of Buyer’s Notice of Adjustment, Sellers will be afforded a period of
thirty (30) Business Days (the “First 30-Day Period”) to
review Buyer’s Notice of Adjustment. At or before the end of the
First 30-Day Period, Sellers will either:
(A) accept
the Final Working Capital (as set forth in Buyer’s Notice of Adjustment) in its
entirety, in which case the Final Working Capital will be as set forth in
Buyer’s Notice of Adjustment, or
(B) deliver
to Buyer a written notice (the “Objection Notice”) containing
a written explanation of those items in the Final Working Capital Statement (as
set forth in Buyer’s Notice of Adjustment) which Sellers dispute, in which case
the items identified by Sellers shall be deemed to be in dispute.
(ii) The
failure by Sellers to deliver the Objection Notice within the First 30-Day
Period shall constitute Sellers’ acceptance of the Final Working Capital
Statement and the Final Working Capital as set forth in Buyer’s Notice of
Adjustment.
(iii) If
Sellers deliver the Objection Notice in a timely manner, then, within a further
period of ten (10) Business Days from the end of the First 30-Day Period, the
parties, and, if desired, their respective accountants, will attempt to resolve
in good faith any disputed items (“Disputed Items”) and reach a
written agreement (the “Settlement Agreement”) with
respect thereto.
(iv) Failing
such resolution, then unresolved disputed items will be referred for final
binding resolution to ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ (the “Arbitrating Accountants”), the
fees and expenses of which shall be borne by the party whose position is not
supported by the Arbitrating Accountants. The Final Working Capital
will be deemed to be as determined by the Arbitrating
Accountants. Such determination (the “Accountants’ Determination”)
shall be:
(A) in
writing,
(B) furnished
to Sellers and Buyer as soon as practicable after the unresolved Disputed Items
have been referred to the Arbitrating Accountants, but in no event more than
ninety (90) days after delivery of the Buyers Notice of Adjustment to
Sellers.
(C) made in
accordance with US GAAP as applied in preparing the Audited Financials and in a
manner consistent with the past practices of the Sellers,
(D) related
only to the unresolved Disputed Items and not as to any other items,
and
(E) non-appealable
and incontestable by Sellers, Buyer or any of their respective Affiliates and
not subject to collateral attack for any reason.
(v) For
purposes of this Section 2.7, the “Final Determination Date”
shall mean the earliest to occur of:
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(A) the
30th
Business Day following the receipt by Sellers of Buyer’s Notice of Adjustment if
Sellers shall have failed to deliver the Objection Notice to Buyer within the
First 30-Day Period,
(B) the date
on which either of the Sellers or Buyer gives the other a written notice to the
effect that such party has no objection to the other party’s determination of
the Final Working Capital,
(C) the date
on which Sellers and Buyer execute and deliver a Settlement Agreement,
or
(D) the date
as of which Sellers and Buyer shall have received the Accountants’
Determination.
(h) Control of Decisions By
Buyer Under This Section 2.7. The parties hereto hereby agree
that all decisions of Buyer under this Section 2.7 shall be controlled by ▇▇▇▇▇
▇▇▇▇▇▇▇.
2.8 Closing. The
Closing of the transactions contemplated by this Agreement shall occur
electronically via email or facsimile on the Closing Date; provided that, if the
parties mutually agree to a physical closing or it is required by the lender, if
any, providing the DAL Acquisition Debt, then the Closing shall occur at the
offices of Loeb & Loeb LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ on the
Closing Date.
2.9 Endorsements;
Additional Documents.
(a) Right of
Endorsement. From and after the Closing Date, Buyer shall have
the absolute and unconditional right and authority to endorse, without recourse,
the name of any Seller or Seller Controlling Party on any check or other form of
payment received by Buyer on account of the Target Business conducted by DJS
LLC, PTA LLC or DSI LLC. In connection therewith, each Seller shall
deliver to Buyer at the Closing copies of the resolutions duly adopted by its
manager, managing Member, Board of Directors or Board of Managers, as
applicable, certified by such Seller’s Secretary or other appropriate officer,
and a letter of instruction executed by such Seller’s President and the
Secretary, or other appropriate officer, sufficient to permit Buyer and the
Target Business to deposit such payments, so endorsed, in bank accounts in the
name of Buyer and/or the Target Business.
(b) Additional
Documents. At the Closing, Sellers, each Newly-Formed LLC, and
Seller Controlling Party shall deliver to Buyer such endorsements, consents,
assignments and other good and sufficient instruments of conveyance and
assignment (the “Conveyance
Documents”) as Buyer and Chardan, and their counsel, shall deem
reasonably necessary or appropriate to vest in Buyer all right, title and
interest in, to and under the Acquired Interests and the assets, business and
operations of the Target Business, and all original certificates (together with
instruments of transfer) that represent the Acquired Interests, including
original organizational documents and the limited liability company minutes and
records of the Sellers (to the extent related to the Target Business) and the
Newly-Formed LLCs.
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2.10 Allocation
of the Purchase Price.
(a) Allocation. After
a thorough analysis of the transaction and arms’ length negotiations between the
parties, Buyer, Seller Controlling Party, the Newly-Formed LLCs and Sellers
agree that the Initial Cash, Post-Closing Cash, the ▇▇▇▇▇ Deferral Note and the
Assumed Liabilities shall be allocated among the assets, business and operations
of that portion of the Target Business owned by each Seller and sold to Buyer in
the manner set forth on Schedule
2.10(a).
(b) Cooperation. Buyer,
Sellers and Seller Controlling Party will cooperate in the timely preparation of
their respective Forms 8594 in accordance with Section 2.10(a) with respect to
the sale of assets hereunder.
(c) Binding
Effect. Buyer, Seller Controlling Party and Sellers, and their
Affiliates, shall be bound by the allocations as set forth in Section 2.2 and
this Section 2.10, and shall apply such allocations for all purposes, and shall
prepare and file all income Tax Returns, including Form 8594, in a manner
consistent with such allocations. None of Buyer, Seller Controlling
Party, Sellers or any of their Affiliates shall take any position inconsistent
with such allocations in any Tax Return, proceeding before any Governmental
Entity or otherwise. In the event that any allocation hereunder is
questioned, audited or disputed by any Governmental Entity, the party receiving
notice thereof shall promptly notify and consult with the other parties
concerning the strategy for the resolution thereof, and shall keep the other
parties apprised of the status of such question, audit or dispute and the
resolution thereof.
2.11 FlatWorld
Proceeds. FlatWorld shall receive the FlatWorld Closing
Proceeds, the FlatWorld Warrant Proceeds, the FlatWorld Additional Warrant
Proceeds, and the DAL Expenses shall be paid, in connection with the Closing of
the Transactions contemplated by the Transaction Documents, with the FlatWorld
Warrant Proceeds and the FlatWorld Additional Warrant Proceeds paid as provided
in Section 2.5. The FlatWorld Closing Proceeds and DAL Expenses shall
be paid in accordance with Section 13.3.
ARTICLE
3
REPRESENTATIONS
AND WARRANTIES OF SELLERS, SELLER CONTROLLING PARTY AND NEWLY-FORMED LLCs WITH
RESPECT TO SELLER, SELLER CONTROLLING PARTY AND THE NEWLY-FORMED
LLCS
Sellers,
Seller Controlling Party and Newly-Formed LLCs, jointly and severally, each
hereby represents and warrants to Buyer and Chardan that the representations and
warranties of each Seller, each Newly-Formed LLC, and Seller Controlling Party
contained in the Master Agreement shall be true, correct and complete in all
respects at and as of the date hereof, with the same effect as though such
representations and warranties were made at and as of the date hereof
immediately prior to the Closing, and as though set forth in this Agreement in
their entirety, mutatis
mutandis.
15
ARTICLE
4
REPRESENTATIONS
AND WARRANTIES OF EACH SELLER AND SELLER CONTROLLING PARTY WITH RESPECT TO THE
NEWLY-FORMED LLCS
Sellers
and Seller Controlling Party, jointly and severally, each hereby represents and
warrants to Buyer and Chardan that the representations and warranties of each
Seller and Seller Controlling Party contained in the Master Agreement with
respect to the Newly-Formed LLCs are true, correct and complete in all respects
as of date hereof with the same effect as though such representations and
warranties were made as of the date hereof immediately prior to the Closing, and
as though set forth in this Agreement in their entirety, mutatis
mutandis.
ARTICLE
5
REPRESENTATIONS
AND WARRANTIES OF
BUYER,
FLATWORLD, GUPTA AND ▇▇▇▇▇▇▇
Each of
Buyer, FlatWorld, Gupta and ▇▇▇▇▇▇▇ hereby represents and warrants to each
Seller and Chardan, jointly and severally, that the representations and
warranties of Buyer, FlatWorld, Gupta and ▇▇▇▇▇▇▇ contained in the Master
Agreement are true, correct and complete in all respects as of date hereof with
the same effect as though such representations and warranties were made as of
the date hereof, immediately prior to the Closing, and as though set forth in
this Agreement in their entirety, mutatis
mutandis.
ARTICLE
6
REPRESENTATIONS
AND WARRANTIES OF CHARDAN
Chardan
hereby represents and warrants to Buyer and each Seller that the representations
and warranties of Chardan contained in the Master Agreement are true, correct
and complete in all respects as of the date hereof with the same effect as
though such representations and warranties were made as of the date hereof,
immediately prior to the Closing, and as though set forth in this Agreement in
their entirety, mutatis
mutandis.
ARTICLE
7
CONDITIONS
TO CLOSING AND CLOSING DELIVERIES
7.1 Conditions
to Obligations of Buyer. The obligations of Buyer and Chardan
to consummate the transactions provided for herein shall be subject to the
following conditions unless waived in writing by Buyer and Chardan:
(a) No
Orders; Legal Proceedings. No Law shall have been enacted,
entered, issued, promulgated or enforced by any Governmental Entity, nor shall
any Legal Proceeding or Order have been instituted and remain pending or have
been threatened and remain at or as of the Closing Date, which prohibits or
restricts or would (if successful) prohibit the Transactions contemplated by
this Agreement or the Master Agreement, or that would result in a Material
Adverse Effect.
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(b) Representations. The
representations and warranties of each Seller, each Newly-Formed LLC, and the
Seller Controlling Party contained in this Agreement and the Master Agreement
shall be true, correct and complete in all material respects at and as of the
Closing Date, with the same effect as though such representations and warranties
were made at and as of the Closing Date.
(c) Compliance. Sellers,
the Newly-Formed LLCs and the Seller Controlling Party shall have performed and
complied in all material respects with all respective agreements and conditions
contained in this Agreement and the Transaction Documents that are required to
be performed or complied with by it prior to or at the Closing.
(d) Closing
Certificate. Buyer shall have received from each Seller a
certificate (dated the Closing Date and in form and substance reasonably
satisfactory to Buyer) executed by each Seller, respectively, certifying that
the conditions specified in subsection (b) and (c) of this Section 7.1 have been
fulfilled.
(e) Officer’s
Certificate. Buyer shall have received from an officer of each
Seller and from the Seller Controlling Party a certificate (dated the Closing
Date and in form and substance reasonably satisfactory to Buyer), certifying and
setting forth (i) that the conditions specified in subsection (b) and (c) of
this Section 7.1 applicable to them have been fulfilled, (ii) the names,
signatures and positions of the officers of each Seller authorized to execute
this Agreement, any other Transaction Documents or any other agreements
contemplated herein to which Seller is a party, and (iii) a copy of the
resolutions adopted by the governing boards of each Seller in each case
authorizing the execution, delivery and performance of this Agreement, the other
Transaction Documents and the Transactions contemplated hereby and thereby to
which such Seller is a party.
(f) Good
Standing Certificate. Each Seller shall have delivered to
Buyer a good standing certificate with respect to such Seller and such Seller’s
corresponding Newly-Formed LLC, as of a date no more than five (5) days prior to
the Closing Date, issued by the Secretary of State or equivalent officer of the
states of such entity’s incorporation or formation, as applicable.
(g) No
Material Adverse Change. During the period from the date of
the Master Agreement through the Closing Date, there shall have been no Material
Adverse Change with respect to any Seller, any Newly-Formed LLC or the Target
Business.
(h) No
Indebtedness or other Obligations of the Newly-Formed LLCs or Restrictions on
any of Their Assets. On the Closing Date, and after giving
effect to the Transactions contemplated hereby, no Newly-Formed LLC shall have
any Indebtedness or any Restrictions on the assets of any Newly-Formed LLC,
except those set forth on Schedule
7.1(h) hereto, or those related to Permitted Claims, the DAL Acquisition
Debt, or the Deferral Notes.
(i) Required
Consents. All Consents from Third Parties listed on Schedule
4.9 of the Master Agreement and all waiting periods listed on Schedule 3.5 of
the Master Agreement, including with respect to the Lease Agreements, and
including any required waiting period under the HSR Act, in each case required
to enter into and consummate the transactions contemplated by this Agreement,
shall have been obtained, expired or the necessity for such Consent or waiting
periods shall have been waived in writing by such Third Party.
17
(j) UCC-3’s. Buyer
shall have received UCC-3’s releasing all UCC’s wherever located, with respect
to any Newly-Formed LLC or the Target Business, other than those listed on Schedule
7.1(j).
(k) FIRPTA
Certificate. Buyer shall have
received a duly executed FIRPTA certificate under Section 1445(b)(2) of the Code
for each Seller, acceptable in form and substance to Buyer and
Chardan.
(l) Releases. Each
Seller and Seller Controlling Party has executed and delivered to Buyer a
release agreement in the form of Exhibit
J hereto
(pursuant to which each such Seller releases all Claims against the Newly-Formed
LLCs and the Target Business).
(m) Employment
Agreement. ▇▇▇▇▇ ▇. ▇▇▇▇▇ shall have executed and delivered to
Buyer the Employment Agreement.
(n) DAL
Operating Agreement. Sellers shall each have executed the DAL
Operating Agreement and delivered executed counterparts thereof to
Buyer.
(o) Financing. Buyer
shall have executed and delivered the documentation necessary to obtain, and
shall have obtained, the DAL Acquisition Debt, in an amount sufficient to
consummate the transactions contemplated by this Agreement.
(p) Insurance. Buyer
shall have received insurance certificates or other documentation to its
satisfaction, evidencing that the Newly-Formed LLCs have insurance with respect
to the operation of the Target Business in type, amount and coverage
satisfactory to Buyer.
(q) Assignment
of Lease Agreement. Buyer shall have received duly executed
signature pages to the Assignments of Lease Agreements.
(r) Contribution
Agreements. Buyer shall have received evidence that the
Contribution Agreements have been duly executed by the parties thereto and the
transactions contemplated thereby have been consummated immediately before the
Closing.
(s) Services
Agreement. DJS and DJS LLC shall have executed and delivered
the Services Agreement.
(t) Name
Change Documents. Each of DSI and PTA shall execute
appropriate documents to change its respective name to a name dissimilar from
any of “Default Servicing, Inc.” or “Professional Title and Abstract Company of
Florida, Inc.”
(u) Escrow
Agreement. Sellers and Escrow Agent shall have executed and
delivered the Escrow Agreement.
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(v) Facilities
Sharing Agreement. DJS shall have executed and delivered the
Facilities Sharing Agreement.
(w) Other
Conveyance Documents. Such other instruments of conveyance and assignment
as Parties and their respective counsel shall deem reasonably necessary or
appropriate to vest in Buyer all right, title and interest in, to and under the
Acquired Interests and the assets, business and operations of the Target
Business.
(x) Target
Cash Balance. The aggregate cash on hand of the Newly-Formed
LLCs on the Closing Date shall equal or exceed the Target Cash
Balance.
(y) FlatWorld
Services Agreement. The FlatWorld Services Agreement shall
have been fully executed and delivered, and shall be in full force and effect
without modification; provided that the
failure to have satisfied this condition shall not be due to the actions or
inactions of Buyer (with respect to Chardan’s condition) or Buyer or FlatWorld
(with respect to Buyer’s condition).
(z) Chardan
Services Agreement. The Chardan Services Agreement shall have
been fully executed and delivered, and shall be in full force and effect without
modification; provided that the
failure to have satisfied this condition shall not be due to the actions or
inactions of Buyer or Chardan Capital, LLC.
(aa) Letter
Agreements. The Letter Agreements shall have been fully
executed and delivered, and shall be in full force and effect without
modification as of the Closing Date.
(bb) Transaction
Documents. All other
Transaction Documents not mentioned above shall have been fully executed and
delivered by each party thereto; provided that the
failure to have satisfied this condition shall not be due to the actions or
inactions of Buyer, Chardan or their Affiliates (as of the date of the Master
Agreement).
7.2 Conditions
to Obligations of Sellers. The obligation of Sellers to
consummate the transactions provided herein with respect to Buyer shall be
subject to the following additional conditions unless waived in writing by
Sellers:
(a) Representations. The
representations and warranties of Buyer and Chardan contained in this Agreement
and the Master Agreement shall be true, correct and complete in all material
respects at and as of the Closing Date with the same effect as though such
representations and warranties were made at and as of the Closing
Date.
(b) Compliance. Buyer
and Chardan shall have performed and complied in all material respects with all
agreements and conditions contained in this Agreement that are required to be
performed or complied with by them prior to or at the Closing.
(c) Officer’s
Certificate. Sellers shall have received from Buyer and
Chardan a certificate (dated the Closing Date and in form and substance
reasonably satisfactory to Sellers) of an officer of Buyer and Chardan
certifying and setting forth (i) that the conditions specified in subsections
(a) and (b) of this Section 7.2 have been fulfilled, (ii) the names, signatures
and positions of officers of Buyer and Chardan, as applicable, authorized to
execute this Agreement, any other Transaction Documents or any other agreements
contemplated herein to which Buyer or Chardan, as applicable, is a party, and
(iii) a copy of the resolutions of the governing board of Buyer and Chardan
authorizing the execution, delivery and performance of this Agreement, the other
Transaction Documents and the transactions contemplated hereby and thereby
pursuant to which Buyer or Chardan, as applicable, is a party.
19
(d) Payment
of the Initial Cash. Buyer shall have paid the Initial Cash to
Sellers at the Closing, as specified in Section 2.4.
(e) Voting
Agreement. Each of the Existing Members, the Principals (as
defined in the Voting Agreement) and Chardan shall have executed and delivered
the Voting Agreement.
(f) Stockholder
Approval. Chardan’s
condition contained in Section 7.3(a) has been satisfied or separately waived in
writing by Sellers, regardless of any waiver thereof by Chardan, which shall not
bind Sellers with respect thereto.
(g) Filings. Sellers shall
have received evidence or confirmation from Chardan’s agent of the filing with,
and acceptance thereof by, the required Governmental Entities in the British
Virgin Islands of the M&A.
(h) No
Orders; Legal Proceedings. No Law shall have been enacted,
entered, issued, promulgated or enforced by any Governmental Entity, nor shall
any Legal Proceeding or Order have been instituted and remain pending or have
been threatened and remain at or as of the Closing Date, which prohibits or
restricts or would (if successful) prohibit the transactions contemplated by
this Agreement or the Master Agreement.
(i) Good
Standing Certificate. Each of Buyer and Chardan shall have
delivered to Seller a good standing certificate with respect to such party, as
of a date no more than five (5) days prior to the Closing Date, issued by the
Secretary of State or equivalent officer of the states or country of such
entity’s incorporation or formation, as applicable.
(j) No
Material Adverse Change. During the period
from the date thereof through the Closing Date, there shall have been no Buyer
Material Adverse Change with respect to Buyer or Chardan Material Adverse Change
with respect to Chardan.
(k) Required
Consents. All Consents from Third Parties listed on Schedule
4.9 of the Master Agreement and all waiting periods required under any agreement
listed on Schedule 3.5 of the Master Agreement, and including any required
waiting period under the HSR Act, in each case required to enter into and
consummate the transactions contemplated by this Agreement, shall have been
obtained, expired or the necessity for such Consent or waiting periods shall
have been waived in writing by such Third Party.
(l) Employment
Agreement. ▇▇▇▇▇ ▇. ▇▇▇▇▇ and Buyer shall have executed and
delivered to one another the Employment Agreement.
20
(m) DAL
Operating Agreement. Chardan, Buyer and Existing Members shall
have executed the DAL Operating Agreement and delivered executed counterparts
thereof to Buyer.
(n) Financing. Buyer
shall have executed and delivered the documentation necessary to obtain, and
shall have obtained, the DAL Acquisition Debt, in an amount sufficient to
consummate the transactions contemplated by this Agreement.
(o) Services
Agreement. DJS and DJS LLC shall have executed and delivered
the Services Agreement.
(p) Facilities
Sharing Agreement. Buyer shall have executed and delivered the
Facilities Sharing Agreement.
(q) Other
Conveyance Documents. Such other instruments of conveyance and assignment
as Sellers and their respective counsel shall deem reasonably necessary or
appropriate to vest in Sellers all right, title and interest in, to and under
the ▇▇▇ ▇▇▇▇▇ Equity.
(r) Warrant
Sale Agreement. Chardan and the owners of at least ninety
percent (90%) of the Covered Warrants (as defined in the Warrant Sale Agreement)
shall have executed and delivered the Warrant Sale Agreement and the other
agreements contemplated thereby.
(s) Deferral
Note. Buyer shall have delivered the ▇▇▇▇▇ Deferral Note and
related documents to the Sellers, in a principal amount not in excess of
$54,000,000.
(t) Transaction
Documents. All other Transaction Documents not mentioned above
shall have been fully executed and delivered by each party thereto; provided that the
failure to have satisfied this condition shall not be due to the actions or
inactions of the ▇▇▇▇▇ Participants or their Affiliates (as of the date of the
Master Agreement).
7.3 Conditions
to Obligations of Chardan. The obligations of Chardan to
consummate the transactions provided for herein shall be subject to the
following conditions, unless waived in writing by Chardan:
(a) Stockholder
Approval. (i) By the Closing Date, Chardan’s stockholders
shall have approved the transactions contemplated by this Agreement and
Chardan’s public stockholders will have exercised their redemption rights with
respect to fewer than 35% of the issued and outstanding Chardan Common Stock
owned by them (as required under Chardan’s Amended and Restated Memorandum and
Articles of Association); (ii) Chardan’s stockholders will have approved the
stockholder resolution adopting the Second Amended and Restated Memorandum and
Articles of Association, in the form attached hereto as Exhibit
K (the “M&A”); and (iii)
Chardan’s stockholders will have approved the stockholder resolution
contemplated by the Voting Agreement with respect to the composition of the
Chardan board of directors.
21
(b) Conditions
to Obligations of Buyer. All Buyer conditions contained in
Section 7.1 have been satisfied or separately waived in writing by Chardan,
regardless of any waiver thereof by Buyer, which shall not bind Chardan with
respect thereto.
7.4 Special
Condition to Obligations of Buyer. The obligations of Buyer to
consummate the transactions provided for herein shall be subject to the
condition that Chardan shall have executed the DAL Operating Agreement and
delivered executed counterparts thereof to Buyer, unless waived in writing by
Buyer.
ARTICLE
8
RESTRICTIVE
COVENANTS
Each
Seller and the Seller Controlling Party (including each of their respective
Affiliates (after the Closing)) hereby acknowledges, agrees and confirms that,
with respect to this Agreement, it shall be bound by, and subject to the
Restrictive Covenants contained in the ▇▇▇▇▇ NDA, for the Restricted Period,
with the same effect as though such provisions are set forth in their entirety
in this Agreement, mutatis
mutandis.
ARTICLE
9
OTHER
COVENANTS AND AGREEMENTS
9.1 Sellers. Each
Seller and the Seller Controlling Party hereby represents and warrants that it
has complied with and has caused the Newly-Formed LLCs to comply with the
provisions of Article 9 of the Master Agreement applicable to them in all
material respects, which provisions shall be deemed set forth herein in their
entirety, and shall apply to this Agreement, mutatis
mutandis.
9.2 Buyer. Buyer
hereby represents and warrants that it has complied with the provisions of
Article 9 of the Master Agreement applicable to it in all material respects,
which provisions shall be deemed set forth herein in their entirety, and shall
apply to this Agreement, mutatis
mutandis.
9.3 Chardan. Chardan
hereby represents and warrants that it has complied with the provisions of
Article 9 of the Master Agreement applicable to it in all material respects,
which provisions shall be deemed set forth herein in their entirety, and shall
apply to this Agreement, mutatis
mutandis.
ARTICLE
10
GOVERNING
LAW; DISPUTE RESOLUTION.
10.1 Governing
Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW OF THE STATE OF FLORIDA, WITHOUT REGARD TO ITS CONFLICTS OF
LAWS PRINCIPLES THAT WOULD RESULT IN THE APPLICATION OF THE SUBSTANTIVE LAW OF
ANOTHER JURISDICTION.
22
10.2 Consent
to Jurisdiction. Each of the
parties hereto hereby irrevocably and unconditionally submits, for itself and
its property, to the exclusive jurisdiction of any Florida State court or
Federal court of the United States of America sitting in Broward County,
Florida, for purposes of all proceedings arising out of, or in connection with,
this Agreement or the transactions contemplated hereby; waives and agrees not to
assert any objection that it may now or hereafter have to the laying of the
venue of any such proceeding brought in such a court or any claim that any such
proceeding brought in such a court has been brought in an inconvenient forum;
agrees that the mailing of process or other papers in connection with any such
action or proceeding in the manner provided in Section 13.6 or any other manner
as may be permitted by Law shall be valid and sufficient service thereof; and
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by applicable Law. The preceding
sentence shall not limit the jurisdiction of the Arbitrating Accountants as set
forth in Section 2.7 hereof although claims may be asserted in such courts
described in the preceding sentence for purposes of enforcing the jurisdiction
of the Arbitrating Accountant.
ARTICLE
11
INDEMNITY
The
parties to this Agreement have agreed to indemnify and hold harmless one another
and certain other related parties pursuant to Article 11 of the Master Agreement
for matters arising under this Agreement and the Master Agreement, which
provisions of Article 11 of the Master Agreement shall be deemed incorporated
herein by reference, mutatis
mutandis. The parties understand and agree the incorporation
by reference of Article 11 of the Master Agreement, mutatis mutandis, does not
increase or otherwise modify any indemnification baskets or caps set forth in
Article 11 of the Master Agreement nor modify any carve-outs or exemptions from
or with respect to the indemnification baskets or caps set forth in Article 11
of the Master Agreement, which shall apply to Claims under both the Master
Agreement and this Agreement taken together.
ARTICLE
12
TERMINATION
12.1 Termination
of Agreement. Anything to the contrary notwithstanding, this
Agreement and the transactions contemplated by this Agreement may be terminated
at any time prior to consummation of the Closing:
(a) by mutual
consent in writing of DAL, Chardan and Sellers; and
(b) by any
party, upon written notice to the other parties, upon the termination of the
Master Agreement.
23
12.2 Effect of
Termination. If this Agreement
shall be terminated pursuant to Section 12.1, all further obligations of the
parties under this Agreement shall terminate without further liability of any
party to any other; provided, however, that the
obligations of the parties contained in Section 13.3 of the Master Agreement
shall survive any such termination. A termination under this Article 12 does not
prejudice any claims which any party may have under this Agreement or the Master
Agreement, in law or equity, as a consequence of any material breach of a
covenant or agreement under this Agreement or the Master Agreement by another
party and does not impair the right of any party to seek to compel specific
performance by the other parties of their obligations under this Agreement or
the Master Agreement. Any confidentiality agreement between the
parties shall remain in full force and effect, in accordance with its terms, in
the event of a termination of this Agreement.
ARTICLE
13
MISCELLANEOUS
PROVISIONS
Except as
specifically provided otherwise in this Agreement, the following provisions
shall apply hereto:
13.1 Amendment
and Modifications. Subject to applicable Law, this Agreement
may be amended, modified and supplemented only by a written agreement between
Buyer, Existing Members, Gupta, Valenty, Seller Controlling Party, Chardan,
Sellers and the Newly-Formed LLCs which states that it is intended to be a
modification of this Agreement. In addition, the Contribution
Agreements may only be amended, modified or supplemented with the consent of
Buyer and Chardan, which consent shall be withheld in Buyer’s or Chardan’s, as
applicable, sole discretion.
13.2 Waiver of
Compliance. Any failure of Sellers, the Newly-Formed LLCs, or
Seller Controlling Party on the one hand, or Buyer or Chardan, on the other
hand, to comply with any obligation, covenant, agreement or condition in this
Agreement may be expressly waived in writing by Buyer and Chardan, on the one
hand, and Sellers, the Newly-Formed LLCs and Seller Controlling Party, on the
other hand, but such waiver or failure to insist upon strict compliance with
such obligation, covenant, agreement or condition shall not operate as a waiver
of, or estoppel with respect to, any subsequent or other failure by any Seller,
any Newly-Formed LLC, Seller Controlling Party, Buyer or Chardan.
13.3 Expenses. In the event that
the Transactions contemplated by this Agreement shall not take place, then,
subject to all rights and remedies that a party may have against another party
for breach of this Agreement, all fees and expenses incurred by each party in
connection with the transactions contemplated by this Agreement shall be borne
by the party incurring such fees and expenses, including all fees of legal
counsel, investment bankers and accountants. In the event that the
Closing is consummated, DAL shall bear all payments, fees and expenses due or
with respect to or of (a) Chardan, up to a maximum of $7,500,000, including fees
of $1,000,000 to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLC pursuant to the Finder’s Agreement,
dated the date of the Master Agreement, between Buyer and ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
LLC, $500,000 of which shall be payable pursuant to the ▇▇▇▇▇▇ Deferral Note and
$500,000 of which shall be paid at Closing, the Underwriters’ Deferral Note and
the Chardan Deferral Note, and amounts due to
24
FlatWorld
or DAL as provided in subsection (b) below, (b) the FlatWorld Closing
Proceeds and DAL and FlatWorld’s reasonable legal fees and expenses due to
Proskauer Rose LLP, up to a maximum of $400,000 (“DAL Expenses”), and (c)
Sellers and Seller Controlling Party’s reasonable legal and other third-party
expenses (other than financial advisor fees) incurred in the negotiation and
execution of this Agreement and the Master Agreement and the Transactions
contemplated thereby. In the event that DAL and FlatWorld’s
reasonable legal fees and expenses covered above exceed $400,000, FlatWorld
shall pay such fees and expenses directly, or if required to be paid by DAL
post-Closing, reimburse DAL for any such fees and expenses.
13.4 Further
Assurances. During the period between the execution of this
Agreement and the Closing, and during all periods after the Closing, each party
shall execute and deliver such further certificates, agreements and other
documents and take such other actions as the other party may reasonably request
to consummate or implement the transactions contemplated by this Agreement or to
evidence such events or matters.
13.5 No Waiver
of Rights. No failure on the part of any party to exercise or
delay in exercising any right hereunder shall be deemed a waiver thereof, nor
shall any single or partial exercise preclude any further or other exercise of
such right or any other right.
13.6 Notices. Any
notice required, permitted or desired to be given pursuant to any of the
provisions of this Agreement shall be in writing and shall be deemed to have
been sufficiently given or served for all purposes if (i) delivered in
Person, (ii) sent by registered or certified mail, return receipt
requested, postage and fees prepaid, or (iii) sent by a national overnight
delivery service, return receipt requested, fees prepaid, to the parties as
follows:
(a) if to
Buyer, to:
DAL
Group, LLC
▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
email: ▇▇▇▇▇▇▇@▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇
With a
copy (which shall not constitute notice) to:
Chardan
2008 China Acquisition Corp.
c/o
Chardan Capital, LLC
▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn: ▇▇▇
▇▇▇▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
email: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
NY791695.19
25
and
to:
Loeb
& Loeb LLP
▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
email:
▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
(b) if to any
Seller or Seller Controlling Party, to such Seller or Seller Controlling Party
at the following address:
Law
Offices of ▇▇▇▇▇ ▇. ▇▇▇▇▇, P.A.
▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇
▇. ▇▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
email: ▇▇▇▇▇▇▇@▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇
with a
copy (which shall not constitute notice) to:
▇▇▇▇▇▇
▇▇▇▇▇▇▇ PLLC
▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇
▇▇▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
email: ▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
(c) If to any
Existing Member, Gupta or ▇▇▇▇▇▇▇, to such Existing Member, Gupta or
▇▇▇▇▇▇▇ at the following address:
c/o
FlatWorld Capital, LLC
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
email: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
with a
copy (which shall not constitute notice) to:
Proskauer
Rose LLP
▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
email: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
26
or to
such other address as such party shall furnish the other parties in
writing. Any notice given under this Section 13.6 shall be effective
(i) if delivered personally, when delivered, (ii) if delivered overnight by
national overnight courier, the end of the next Business Day after deposit with
such courier, and (iii) if mailed, the third Business Day after
mailing. Any of the parties hereto may at any time and from time to
time change the address to which notice shall be sent hereunder by notice to the
other party given under this Section 13.6. The date of the giving of
any notice sent by mail shall be the date of the posting of the
mail.
13.7 Assignment. This
Agreement and all of the provisions hereof shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and permitted
assigns, but neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties hereto without the
prior written consent of the other party; provided, that Buyer may assign this
Agreement and all provisions hereof to any acquiror of Buyer; provided further,
that Fortuna shall assign all rights, interests and obligations it has under
this Agreement and any other Transaction Document to FlatWorld immediately after
the Closing.
13.8 Enforcement. In the event any
party resorts to legal action to enforce or interpret any provision of this
Agreement, the prevailing party will be entitled to recover the costs and
expenses of such action so incurred, including reasonable attorney’s fees, from
any party that opposes the prevailing party in such legal action.
13.9 Counterparts. This
Agreement may be executed in two (2) or more counterparts, each of which shall
be deemed an original, but shall constitute one and the same
instrument. Copies (whether photostatic, facsimile or otherwise) of
this Agreement may be made and relied upon to the same extent as an
original. The exchange of copies of this Agreement and of signature
pages by facsimile transmission or e-mail shall constitute effective execution
and delivery of this Agreement as to all parties hereto and may be used in lieu
of the original Agreement for all purposes. Signatures of the parties
transmitted by facsimile or e-mail shall be deemed to be their original
signatures for all purposes.
13.10 Headings. The
headings of the Sections and Articles are inserted for convenience only and
shall not constitute a part hereof or affect in any way the meaning or
interpretation of such Agreement.
13.11 Entire
Agreement. This Agreement and the other Transaction Documents
set forth the entire agreement of the parties hereto in respect of the subject
matter contained therein, and supersede all prior agreements, whether oral or
written, by any officer, employee or representative of any party hereto with
respect to the subject matter hereof.
13.12 Third
Party Beneficiaries. Except as specifically set forth or
referred to herein, nothing herein expressed or implied is intended or shall be
construed to confer upon or give to any Person other than the parties hereto and
their successors or assigns, any rights or remedies under or by reason of this
Agreement.
13.13 Severability. If
any provision of this Agreement shall hereafter be held to be invalid or
unenforceable for any reason, that provision shall be reformed to the maximum
extent permitted to preserve the parties’ original intent; failing which, it
shall be severed from this Agreement with the balance of this Agreement
continuing in full force and effect. Such occurrence shall not have
the effect of rendering the provision in question invalid in any other
jurisdiction or in any other case or circumstances, or of rendering invalid any
other provisions contained therein to the extent that such other provisions are
not themselves actually in conflict with any applicable Law.
27
13.14 Specific
Performance. The parties agree
that irreparable damage would occur if any provision of this Agreement were not
performed in accordance with the terms hereof and that the parties shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
or to enforce specifically the performance of the terms and provisions hereof,
without bond or other security being required, in addition to any other remedy
to which they are entitled at law or in equity.
[THE
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
28
COUNTERPART
SIGNATURE PAGE – CONTRIBUTION AND MEMBERSHIP INTEREST PURCHASE
AGREEMENT
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed, all as of the day and year first above written.
| BUYER: | |||
| DAL GROUP, LLC | |||
| By: FLATWORLD DAL LLC, its Member | |||
| By: NAGINA ENGINEERING INVESTMENT | |||
| CORP., its Member | |||
|
|
|
By:___________________________________________ | |
| Name: ▇▇▇ ▇. ▇▇▇▇▇ | |||
| Title: President | |||
| SELLER: | |||
| LAW OFFICES OF ▇▇▇▇▇ ▇. ▇▇▇▇▇, P.A. | |||
| By:________________________________________________ | |||
| Name: | |||
| Title: | |||
| SELLER: | |||
| PROFESSIONAL TITLE AND ABSTRACT COMPANY OF FLORIDA, INC. | |||
| By:________________________________________________ | |||
| Name: | |||
| Title: | |||
29
| SELLER: | |||
| DEFAULT SERVICING, INC. | |||
| By:________________________________________________ | |||
| Name: | |||
| Title: | |||
| SELLER CONTROLLING PARTY: | |||
| ___________________________________________________ | |||
| ▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||
| ▇▇▇▇▇▇▇: | |||
| ___________________________________________________ | |||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| GUPTA: | |||
| ___________________________________________________ | |||
| ▇▇▇ ▇. ▇▇▇▇▇ | |||
| EXISTING MEMBERS: | ||
| FLATWORLD DAL LLC | ||
| By: FORTUNA CAPITAL PARTNERS LP, | ||
| its Member | ||
| By: FORTUNA CAPITAL CORP., | ||
| its General Partner | ||
| By:________________________________________________ | ||
| Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||
| Title: President |
30
| FORTUNA CAPITAL PARTNERS LP | ||
| By: FORTUNA CAPITAL CORP., | ||
| its General Partner | ||
| By:________________________________________________ | ||
| Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||
| Title: President | ||
| CHARDAN: | ||
| CHARDAN 2008 CHINA ACQUISITION CORP. | ||
| By:________________________________________________ | ||
| Name: | ||
| Title: | ||
| DJS PROCESSING, LLC | ||
| By:________________________________________________ | ||
| Name: | ||
| Title: | ||
| PROFESSIONAL TITLE AND ABSTRACT COMPANY OF FLORIDA, LLC | ||
| By:________________________________________________ | ||
| Name: | ||
| Title: | ||
| DEFAULT SERVICING, LLC | ||
| By:________________________________________________ | ||
| Name: | ||
| Title: |
31