ASSET PURCHASE AGREEMENT
BY AND BETWEEN
JINKHOLD, LTD.
A United Kingdom Corporation
21 Tudor Street
London
#06286236
(Purchaser)
And
ANDRONICS, LTD.
A Northern Ireland Corporation
20 Balliniska Road
Springtown, BT48 0NA
#NI 17460
(Seller)
ASSET PURCHASE
AGREEMENT
THIS ASSET PURCHASE
AGREEMENT (this “ Agreement ”)
is entered into as of the date set forth below (the “
Execution Date ”), by and between
Jinkhold, Ltd ., a corporation duly
organized under the laws of the United Kingdom (“
Jinkhold ” or the “
Purchaser ”), Andronics,
Ltd ., a corporation duly organized under the laws
of Northern Ireland (“ Andronics
” or the “ Seller ”) and
Robert Andrews , an individual residing in
Northern Ireland and a founder of Andronics (“
Andrews ”). Jinkhold,
Andronics and Andrews are hereinafter at times collectively
referred to as the “ Parties
.”
RECITALS:
WHEREAS,
the Purchaser’s success requires ongoing access to and
control over the development and use of certain key
technologies;
WHEREAS,
the Seller is engaged in the business of providing two-way
global data solutions for the monitoring and control of
customers’ remote assets (the “
Business ”);
WHEREAS,
the Seller desires to sell to the Purchaser significant Assets
(defined in Section 1) and transfer employees engaged in the
ongoing operations of the Business (the “
Continuing Operations ”);
and
WHEREAS,
the Purchaser desires to acquire the Assets of the Seller in
exchange for cash and/or stock of SARS Corporation, a
corporation duly organized under the laws of the state of
Nevada (“ SARS ”) and other
valuable Consideration (defined in Section 4).
NOW,
THEREFORE, for and in consideration of the premises, and the
mutual covenants and agreements contained herein, and other
good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto,
intending to be legally bound, agree as follows:
1. Assets
Purchased . The following properties, as
described below in Sections 1.1 - 1.5, are collectively
referred to herein as the “ Assets
”:
1.1
Assets . The Seller agrees to sell to the
Purchaser and the Purchaser agrees to purchase from the
Seller, on the terms and conditions set forth in this
Agreement, all of the Assets listed and identified in
Schedule 1.1 , annexed hereto and made apart
hereof. Additionally, the Assets listed on
Schedule 1.1 include all due and outstanding accounts
receivable by the Seller as of the Closing Date and all
outstanding work-in-progress listed on Schedule 1.1 or
otherwise.
1.2
Employees . At the Closing (defined below),
the Seller agrees to reassign all current employees of the
Seller involved in the ongoing operations of the Business to
the Purchaser. A list of these employees is set
forth on Schedule 1.2 , annexed hereto and made apart
hereof (the “ Employees
”).
1.3
Contracts . At the Closing, the benefit of
the Seller’s Contracts (defined below) shall be
transferred to the Purchaser. The burden of the
Contracts shall be novated to the Purchaser simultaneously on
the Closing Date. The Contracts and all novations
are set forth and included on Schedule 1.3 , annexed
hereto and made apart hereof (the “
Contracts ”).
1.3.1 No
Violation of Existing Agreements. Neither the execution and
delivery of Agreement, nor the consummation of the
transactions contemplated hereby, will conflict with or (with
or without notice and/or lapse of time) result in a
termination, breach, impairment or violation of any
Contract. Seller has received all necessary
consents to enable the transfer of the Contracts to the
Purchaser.
1.4
Intellectual Property . On or before the
Closing, the Seller agrees to transfer ownership and title of
all intellectual property and intellectual property
agreements of the Seller to the Purchaser. A list
of this property is set forth on Schedule 1.4 ,
annexed hereto and made apart hereof. As used
herein, the term “ Intellectual
Property ” shall mean all worldwide industrial
and intellectual property rights, including, without
limitation, patents, patent applications, patent rights,
trademarks, trademark applications, trade names, service
marks, service mark applications, copyright, copyright
applications, franchises, licenses, inventories, know-how,
trade secrets, customer lists, proprietary processes and
formulae, all source and object code, algorithms, structure,
display screens, layouts, inventions, development tools and
all documentation and media constituting, describing or
relating to the above, including, without limitation,
manuals, memoranda and records.
1.5
Goodwill . On or before the Closing, the
Seller agrees to transfer all goodwill of the Seller to the
Purchaser. A list of this goodwill is set forth on
Schedule 1.5 , annexed hereto and made apart
hereof.
2. Excluded
Assets . All other forms of assets not
included on Schedules 1.1 – 1.5 will remain the
sole property of the Seller, and Seller shall retain all the
rights, title and interests to these assets, including but
not limited to the statutory books and records of
Andronics.
3.
Liabilities Assumed . The Purchaser agrees
to assume and pay, discharge or perform, as appropriate, all
liabilities directly attached to the Assets listed on
Schedule 3 (the “ Assumed
Liabilities ”). The obligations of
the Purchaser under this section are subject to whatever
rights the Purchaser may have under this Agreement or
otherwise for breach by the Seller of any representation,
warranty, covenant or agreement contained in this Agreement,
including but not limited to any right of indemnification
provided by this Agreement.
3.1
Offset . Any liabilities not listed on
Schedule 3 shall remain the sole obligation of the
Seller and Robert Andrews. In the event that undisclosed
liabilities arise or are uncovered within one (1) year after
the Closing Date (the “ Undisclosed
Liabilities ”), the Undisclosed Liabilities
United States Dollar amount shall be offset first, by one (1)
share of unvested Andrews Monthly Options, defined in Section
4.6; second, by one (1) share of unvested Andrews Quarterly
Options, defined in Section 4.6; and third, by one (1)
Convertible Debenture, defined in Section 4.2, United States
Dollar for every One United States Dollar ($1.00 USD) of
Undisclosed Liability, with partial dollar amounts rounded up
to the nearest dollar (collectively, the “
Offset ”).
4.
Consideration . In consideration of the
sale, transfer and conveyance to the Purchaser of the Assets
and the Assumed Liabilities, Purchaser shall submit the
following to the Seller on the Closing Date (collectively
referred to herein as the “
Consideration ”):
4.1 Stock
. Fifty thousand (50,000) shares of restricted
SARS common stock, $0.001 par value per share (“
SARS Common Stock
”);
4.2
Convertible Debentures . Convertible
debentures in the total aggregate principal amount of Seven
Hundred Twenty-Two Thousand Two Hundred United States Dollars
($722,000 USD) (the “ Convertible
Debentures ”). The Convertible
Debentures shall include the following terms: (i) the
interest rate shall be ten percent (10%) compounded annually,
(ii) the Convertible Debenture shall automatically convert
into shares of SARS Common Stock (the “
Conversion ”) one (1) year from the
date the Convertible Debenture was executed (the “
Debenture Maturity Date ”), (iii) the
exercise price shall be One United States Dollar ($1.00 USD)
per share, a form of Convertible Debenture is annexed hereto
and made apart hereof as Exhibit A . The
Convertible Debentures shall be issued to the individuals
and/or entities listed on Schedule 4.2 .
4.3 Assumption of Tax
Liability . Purchaser agrees to assume
Seller’s tax liability to HM Revenue & Customs
Service up to, but not to exceed, Two Hundred Thousand Pounds
(£200,000 GPB).
5.
Payment of Consideration . On or before the
Closing Date, the Purchaser shall transfer, or direct its
agent to transfer, the Consideration, referred to in Sections
4.1 and 4.2, to the Seller.
6.
Adjustments . In regards to the Assets, the
operation of the Seller’s Business and related income
and expenses up to the close of business on the day before
the Closing Date shall be for the account of the Seller and
thereafter for the account of the Purchaser.
7. Value
Added Tax (“ VAT
”).
7.1 The Parties
intend that the Value Added Tax Act 1994 Section 49 (“
Section 49 ”) and the Value Added Tax
(Special Provisions) Order 1995/1268 Article 5 (“
Article 5 ”) shall apply to the
transactions contemplated herein. The Parties shall use
all reasonable endeavours to ensure that the transactions
contemplated herein are not treated as a supply of goods
or a supply of services for the purposes of VAT and pursuant
to Section 49 and Article 5.
7.2 On or
before the Closing Date, Andronics shall deliver to the
Purchaser all records relating to the Business referred to in
Section 49.
7.3 If VAT is
chargeable on the transfer of any of the Assets pursuant to
this Agreement, then, subject to the receipt by the Buyer of
a valid VAT invoice or invoices relating to those assets, the
Buyer shall pay to the Seller (in addition to the
Consideration referred to in Section 2.1) an amount equal to
the amount of VAT payable in respect of them together with
any penalty or interest incurred for late payment of the tax
thereif.
8.
Employees .
8.1 The Parties
acknowledge that the Employees' contracts of
employment shall automatically transfer to the Purchaser
pursuant to the Transfer of Undertaking (Protection of
Employment) Regulations 1981 (as amended) (the “
Regulations
”). Additionally, the Seller acknowledges
that (i) no employee of the Purchaser has an employment
agreement; and (ii) no employee of the Seller shall be
granted an employment agreement.
8.2 The
Purchaser shall be responsible for and undertakes to
indemnify and keep the Seller indemnified from and against
all accrued holiday pay entitlements and accrued holiday
entitlements of the Employees which have accrued prior to the
Closing Date.
8.3 Unless
actions for the claim(s) arise before the Closing Date, the
Purchaser shall have no recourse against the Seller in
respect of any claim made by or in relation to the Employees
whether by virtue of the assumption of Undertakings
(Protection of Employment) Regulations 1981, the Collective
Redundancies and Transfer of Undertakings (Protection of
Employment) (Amendment) Regulations 1999 or arising under
contract, statute, regulation, directive or
otherwise.
8.4 Beginning
on the Closing Date, the Purchaser shall be responsible
for the payment of all wages and salaries due, any related
pay-as-you-earn, National Insurance or deductions in respect
of the Employees.
8.5 The Seller
undertakes to indemnify and keep the Purchaser indemnified
from and against all liabilities, obligations, costs, claims
and demands arising from or in respect of any of the
Employees, insofar as and to the extent that the same was
caused by any act or omission by the Seller prior to the
Closing Date.
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8.6
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All
the obligations of the Seller under or in connection with the
contracts of employment of the Employees arising in respect of any
event or period on or prior to the Closing Date shall be performed
and discharged by the Seller and the Seller shall indemnify the
Purchaser from and against any and all actions, proceedings, costs,
claims, expenses, demands, damages, awards (whether of compensation
or otherwise), fines, penalties, judgements, order and liabilities
whatsoever (including, without limitation, national insurance and
pension entitlements and any liability to pay accrued holiday pay)
which:
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8.6.1 relate
to or arise out of or in connection with the employment or
dismissal of any of the Employees or any other employee by
the Seller or any other person or any act or omission by the
Seller or any associate of the Seller or any other event
occurring on or prior to the Closing Date for which the
Purchaser is liable by reason of the operation of the
Regulations or other measure having the force of law;
or
8.6.2 (whether
or not in respect of a period before or after the Closing
Date) relate to any contract of employment of any employee of
the Seller or any other person (other than any of the
Employees) in respect of which the Purchaser is liable as a
result of the Regulations or Directive 77/187 of the Council
of European Communities or the termination of any such
contract (and in this connection the Purchaser shall
terminate such contacts of employment promptly on becoming
aware of the same); or
8.6.3 arise
from any failure by the Seller to comply with its obligations
made or contemplated by the Regulations.
8.7 The Seller
undertakes to authorise and hereby authorises each of the
Employees to disclose to the Purchaser after the Closing Date
all information in his or her possession relating to the
Business notwithstanding any term of his or her employment
with the Seller (whether express or implied) which would
otherwise preclude him or her from so doing.
8.8 Should
any liabilities, obligations, costs, claims and demands
arising from or in respect of any of the Employees, insofar
as and to the extent that the same was caused by any act or
omission by the Seller prior to the Closing Date (the
“ Employee Liabilities ”), arise
on or after the Closing Date, the Employee Liabilities shall
be subject to the Offset defined in Section 3.1.
9.
Closing .
9.1 Time
and Place . The closing of the sale and
purchase of the Assets (the “ Closing
”) shall take place at The Otto Law Group, PLLC, at
5:00 p.m. PST on or before November 15, 2007 (the “
Closing Date ”), or at such other time
as the Parties may mutually agree and upon which time all (i)
closing conditions; (ii) closing covenants; and (iii)
outstanding exhibits and schedules have been completed,
attached hereto and fully satisfied. This
Agreement may be executed in any number of counterparts, each
of which will be an original as regards any party whose
signature appears thereon and all of which together will
constitute one and the same instrument. This Agreement will
become binding when one or more counterparts hereof,
individually or taken together, will bear the signatures of
each of the Parties reflected hereon as
signatories. The “ Execution
Date ” shall be defined as the date this
Agreement is executed by the Parties.
9.2
Obligations of Seller at the Closing . At
the Closing, the Seller shall execute, or cause to be
executed, and shall deliver to the Purchaser the
following:
9.2.1 Such documents as
the Purchaser may reasonably request for the purpose of (A)
evidencing the accuracy of any of Seller’s
representations and warranties, (B) evidencing the
performance by Seller of, or the compliance by Seller with,
any covenant or obligation required to be performed or
complied with by it, (C) evidencing the satisfaction of any
condition referred to in this Agreement, or (D) otherwise
facilitating the consummation or performance of any of the
transactions contemplated in this Agreement.
9.2.2 The Seller shall
provide the Purchaser an accounting of all prepayments
received from customers in respect of any of the Contracts to
the extent that such prepayments exceed the actual costs (if
any) incurred by the Seller in partially performing such
Contracts prior to the Closing Date.
9.2.3 Rent,
water, electricity, telephone charges, salaries, wages,
accrued holiday pay and other outgoings and costs of a
periodical nature which relate to periods commencing before
the Closing Date and ending after the Closing Date shall be
apportioned on a time basis and those referable to the period
ended on the Closing Date shall be borne by the Seller and
those referable to the period commencing on the day following
the Closing Date shall be borne by the
Purchaser.
9.3
Obligations of Purchaser at the Closing
. At the Closing, the Purchaser shall execute, or
cause to be executed, and shall deliver to the Seller the
following:
9.3.1 Such
documents as the Seller may reasonably request for the
purpose of (A) evidencing the accuracy of any representation
or warranty of the Purchaser, (B) evidencing the performance
by the Purchaser of, or the compliance by the Purchaser with,
any covenant or obligation required to be performed or
complied with by the Purchaser, (C) evidencing the
satisfaction of any condition referred to in this Agreement,
or (D) otherwise facilitating the consummation or performance
of any of the transactions contemplated in this agreement;
and
9.3.2 A
release of the obligations of the Seller under previously
executed promissory notes in the aggregate total amount of
Six Hundred Eighty-Two Thousand Three Hundred
Ninety-Eight United States Dollars and Ninety-Two
Cents ($682,398.92USD) (the “ Notes
”). A schedule of the Notes is annexed
hereto and made apart hereof on Schedule 9.3.2
.
9.4
Collateral Events . At the Closing, the
Parties acknowledge that the Operating Agreement (“
Operating Agreement ”) dated February
7, 2007 and the Licensing Agreements (the “
Licensing Agreement ”), dated February
7, 2007 executed by and between the Seller, Veritas Solutions,
Inc. and Secure Asset Reporting Services, Inc. shall be
terminated and cancelled according to the terms set
forth in the Operating Agreement and Licensing Agreement,
respectively. A fully executed copy of the
Operating Agreement and the Licensing Agreements is annexed
hereto and made apart hereof as Exhibits C and D
.
9.5
Possession . Simultaneously with such
deliveries, Seller shall take all action necessary or
appropriate to put Purchaser in actual possession and
operating control of the Assets.
10.
Seller’s Obligation Prior to Closing
.
10.1
Seller’s Operation of Business Prior to Closing
. The Seller agrees that between the Execution
Date and the Closing Date (the “ Interim
Period ”), the Seller will:
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10.1.1 Continue
to operate and maintain the Assets that are the subject of this
Agreement in the usual and ordinary course and in substantial
conformity with all applicable laws, ordinances, regulations, rules
or orders, and will use its best efforts to preserve the Assets and
preserve the Assets with its customers, suppliers and others having
business relations with the Seller.
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10.1.2 Not
assign, sell, lease or otherwise transfer, dispose or vary any of
the Assets, whether now owned or hereafter acquired, except in the
normal and ordinary course of business and in connection with its
normal operation.
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10.1.3 Maintain
all of its Assets other than inventories in their present
condition, reasonable wear and tear and ordinary usage excepted,
and maintain the inventories at levels normally
maintained.
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10.1.4 Not
engage any new Employee in the Business (save that the Seller may
do so if such Employee’s contract of employment will not
transfer to the Purchaser on or as a result of the Closing) or take
any step to vary the contract of employment of any Employee or take
any steps which would entitle any Employee to terminate his
employment without notice or in circumstances amounting to
constructive dismissal.
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10.1.5 The
Seller covenants with and undertakes to the Purchaser that it will
as soon as reasonably practicable notify the Purchaser in writing
of any matter or thing which arises and becomes known to it in the
Interim Period which constitutes a breach of any of the Warranties
set out in Section 14.
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11. Access
to Premises and Information . At a reasonable
time prior to the Closing Date, the Seller shall provide the
Purchaser and its representatives with reasonable access
during business hours to the Assets, titles, contracts and
records of the Seller and furnish such additional information
concerning the Seller’s business to the Purchaser may
reasonably request from time to time.
12.
Covenants of Seller Prior to Closing .
12.1
Conditions and Best Efforts . The Seller
will use its best efforts to effectuate the transactions
contemplated by this Agreement and to fulfill all the
conditions of the Seller’s obligations under this
Agreement, and shall do all acts and things as may be
required to carry out the Seller’s obligations and to
consummate this Agreement.
12.2
Confidential Information . If for any
reason the transactions contemplated by this Agreement fail
to consummate, the Purchaser shall not disclose to third
parties any confidential information received from the Seller
in the course of investigating, negotiating and performing
the transactions contemplated by this Agreement.
12.3
Financial Statements . On or before the
Closing Date, the Seller shall supply the Purchaser with
financial statements through September 30, 2007, of which
shall include, but is not limited to, (i) balance sheet, (ii)
profit and loss statement, (iii) detailed accounts receivable
(also to be attached as a part of Schedule 1.1), (iv)
detailed accounts payable (also to be attached as a part of
Schedule 3), (v) detailed inventory schedule (also to be
attached as a part of Schedule 1.1) and (vi) other customary
disclosures or as may be requested.
13.
Covenants of Purchaser Prior to Closing .
13.1
Conditions and Best Efforts . The Purchaser
will use its best efforts to effectuate the transactions
contemplated by this Agreement and to fulfill all the
conditions of the Purchaser’s obligations under this
Agreement, and shall do all acts and things as may be
required to carry out the Purchaser’s obligations and
to consummate this Agreement.
13.2
Confidential Information . If for any
reason the transactions contemplated by this Agreement fail
to consummate, the Purchaser shall not disclose to third
parties any confidential information received from the Seller
in the course of investigating, negotiating and performing
the transactions contemplated by this
Agreement. The Parties recognize that they have
received and will receive confidential information concerning
the other during the course of the negotiations, preparations
and due diligence the transaction contemplated herein.
Accordingly, the Parties each: (a) shall use its respective
best efforts to prevent the unauthorized disclosure of any
confidential information concerning the other that was or is
disclosed during the course of such negotiations,
preparations and due diligence; and (b) shall not make use of
or permit to be used any such confidential information other
than for the purpose of effectuating the Agreement and
related transactions. The obligations of this section will
not apply to information that: (a) is or becomes part of the
public domain other than by fault of the receiving party; (b)
is disclosed by the disclosing party to third parties without
restrictions on disclosure; (c) is received by the receiving
party from a third party without breach of a contractual or
fiduciary nondisclosure obligation to the other party; or (d)
is required to be disclosed by law, provided that the
receiving party shall give at least two (2) days’ prior
written notice to the disclosing party of such disclosure
required by law. If this Agreement is terminated, all copies
of documents containing confidential information shall be
returned by the receiving party to the disclosing
party.
14.
Representations and Warranties of the Seller
. The Seller represents and warrants to the
Purchaser as follows:
14.1
Corporate Existence . The Seller is now,
and on the Closing Date shall be, a corporation duly
organized, validly existing and in good standing under the
laws of Northern Ireland, has all requisite corporate power
and authority to own its properties and assets and carry on
its business and is in good standing in each jurisdiction in
which such qualification is required.
14.2
Corporation Power and Authorization . The
Seller has full corporate authority to execute and deliver
this Agreement and any other agreement to be executed and
delivered by the Seller in connection herewith, and to carry
out the transactions contemplated hereby. The
execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby have been duly
authorized by all necessary corporate and shareholder
action. No other corporate proceedings by the
Seller are necessary to authorize this Agreement or the
carrying out of the transactions contemplated
hereby. The Seller has consulted its own financial
advisor, tax advisor and accountant, as necessary or
desirable, as to matters concerning this
Agreement. This Agreement constitutes a valid and
binding Agreement of the Seller in accordance with its
terms.
14.3
Conflict with Other Agreements, Consents and Approvals
. With respect to (i) any corporate or entity
formation documents, such as the articles of incorporation,
bylaws or similar documents of the Seller, (ii) any
applicable law, statute, rule or regulation, (iii) any
contract to which the Seller is a party or may be bound, or
(iv) any judgment, order, injunction, decree or ruling of any
court or governmental authority to which the Seller is a
party or subject, the execution and delivery by the Seller of
this Agreement and any other agreement to be executed and
delivered by the Seller in connection herewith and the
consummation of the transactions contemplated hereby will not
(a) result in any violation, conflict or default, or give to
others any interest or rights, including rights of
termination, cancellation or acceleration, or (b) require any
authorization, consent, approval, exemption or other action
by any court or administrative or governmental body which has
not been obtained, or any notice to or filing with any court
or administrative or governmental body which has not been
given or done.
14.4
Compliance with Law . The Seller’s
use and occupancy of the Assets, wherever located, has been
in compliance with all applicable governmental laws or
ordinances, the non-compliance with which, or the violation
of which, might have a material adverse affect on the Assets,
the Assumed Liabilities or the financial condition, results
of operations or anticipated business prospects of the
Purchaser, and the Seller has received no claim or notice of
violation with respect thereto. Without in any way
limiting the generality of the foregoing, the Seller is in
compliance with, and is subject to no liabilities under, any
and all applicable laws, governmental rules, ordinances,
regulations and orders pertaining to the presence,
management, release, discharge or disposal of toxic or
hazardous waste material or substances, pollutants (including
conventional pollutants) and contaminants. The
Seller has obtained all material permits, licenses,
franchises and other authorizations necessary for the conduct
of its business.
14.5 Tax
and Other Returns and Reports . (i) All tax
returns and reports (including without limitation all income
tax, payroll, unemployment compensation, sales and use,
excise, privilege, property, ad valorem, franchise, license
and school) required to be filed by the Seller by the Closing
(“ Tax Returns ”) have been
filed with the appropriate governmental agencies in all
jurisdictions in which such returns and reports are required
to be filed, and all such returns and reports properly
reflect the taxes of the Seller for the periods covered
thereby; and (ii) all taxes, assessments, interest,
penalties, deficiencies, fees and other governmental charges
or impositions, including those enumerated above with respect
to the Tax Returns, which are called for by the Tax Returns,
or which are claimed to be due from the Seller by notice from
any taxing authority, or upon or measured by its properties,
assets or income, have been properly accrued or paid by or at
the Closing if then due and payable. The amount of
tax payable by the Seller on the profits of the Business in
the last two accounting periods of the Seller has not
depended to a material extent on any agreement with any tax
authority not being an agreement based on strict application
of any relevant legislation.
14.5.1
Accounts . The accounts of the Seller
relating to the Business for the financial year ended on
February 28, 2007 comply with the requirements of the
Companies Order 1989 (or when the Companies Act 2006 is
brought into force) Companies Act 2006. The
accounts have been prepared in accordance with all applicable
Statements of Standard Accounting Practice and (to the extent
that none are applicable) with generally accepted accounting
principles and practices applied consistently. They show a
true and fair view of the assets and liabilities of the
Business as at that date, including contingent, unquantified
or disputed liabilities, and of the results of the Business
for the financial period ended on February 28,
2007. The accounting and other records of the
Business are up to date and contain complete and accurate
details of all transactions of the Business.
14.6
Intellectual Property Rights .
14.6.1 The
Seller owns, possesses or has the right to use all
intellectual property rights necessary or required to conduct
its business as presently conducted, or otherwise used by the
Seller. There are no subsisting licenses or other
agreements under which the Seller has granted to any third
party any rights or interest in connection with the
Intellectual Property or any rights to any know-how or
confidential information relating to the
Business.
14.6.2 No royalties or
other amounts are payable by the Seller to other persons by
reason of the ownership or the use of the any intellectual
property owned or used by the Seller.
14.6.3 (i) To
the best knowledge of the Seller, no product or service
related to the Seller’s business and marketed and sold
by the Seller violates any license or infringes upon any
intellectual property rights of others, (ii) the Seller has
not received any notice that any such product or service
conflicts with any intellectual property rights of others,
and (iii) to the best knowledge of the Seller, there is no
reasonable basis to believe that any such violation,
infringement or conflict may exist.
14.6.4 The Seller is not
a party to, or subject to, any contract which currently
requires, or upon the passage of time or occurrence of an
event or contingency (whether of default or otherwise) will
require, the conveyance or disclosure of secret processes or
formulae related to, any intellectual property of the
Seller.
14.6.5 All
computer hardware and software included among the Assets and
currently used and/or necessary to the conduct of the
Seller’s business, are in good working
order.
14.6.6 Except as
described in Schedules 1.1-1.5 , the Seller has
obtained and delivered to the Purchaser all consents and
approvals of third parties necessary to duly transfer to the
Purchaser all of the Seller’s rights, title and
interest in and to all of its intellectual property included
among the Assets.
14.7
Contracts . The Seller is not a party to or
subject to any contract that involves (i) agency,
distributorship, franchising, marketing rights, information
sharing, manufacturing rights, servicing or maintenance; (ii)
partnership, joint venture or similar arrangement; (iii) the
purchase, conditional sale, credit sale, lease, hiring or
similar arrangement; (iv) committing Andronics to capital
expenditures; (v) disabling Andronics’ complete
performance with the terms of any Contract entered into
within (6) months from the date of execution; (vi) the supply
of goods and/or services by or to the Seller on terms under
which retrospective or future discounts, price reductions or
other financial incentives are given by or to the Seller
dependent upon the level of purchases or any other fact;
(vii) terms not on “arm’s length;” and
(viii) a loss-making nature.
14.7.1 The
Seller is not in default under any of the Contracts or in
respect of any other obligation or restriction binding upon
it in relation to the Business. No threat or claim of default
has been made and no threat or claim is outstanding against
the Seller under any of the Contracts or any other agreement
or arrangement to which the Seller is a party relating to the
Business or the Assets and there is nothing, whereby any of
the Contracts or other agreement or arrangement, that may be
terminated or rescinded by any other party.
14.7.2 During
the twelve (12) months immediately preceding Closing Date,
there has been no substantial change in the bases or terms on
which any person is prepared to do business with the Seller
in relation to the Business. No substantial
customer or supplier of the Business has ceased or
substantially reduced its business with the Seller and no
indication has been received by the Seller that there will be
any such change, cessation or reduction.
14.8
Litigation . The Seller has no knowledge of
any claim, litigation, proceeding or investigation pending or
threatened against the Seller that might result in any
material adverse change in the Business or condition of the
Assets being conveyed under this Agreement.
14.9
Assets . The items included on Schedule
1.1 are to the best of the Seller’s knowledge fit
for their intended purpose and are of satisfactory quality,
are not obsolete, slow moving or likely to realize less than
book value, and are sufficient for the normal requirements of
the Business. The work-in-progress is at its normal level
having regard to current orders. The raw material,
packaging materials and finished goods are at their normal
level having regard to the current trading requirements of
the Business. All of the items comprising the
fixed Assets are in a good and safe state of repair and
condition and satisfactory working order, are adequate and
not surplus to the requirements of the Business, and would
not be expected to require replacement within a period of
twelve (12) months after the Closing Date.
14.9.1
Title to Assets . The Seller holds good and
marketable title to the Assets, free and clear of
restrictions on or conditions to transfer or assignment, and
free and clear of liens, pledges, charges or
encumbrances.
14.10
Employees . No changes have been made since
February 7, 2007 in the terms of employment of the Employees
and the Seller is not under any legal or moral obligation to
make any such change. There are no amounts owing
to any present or former officers or employees of the Seller
in respect of the Business and none of them is entitled to
accrued holiday pay other than in respect of the Seller's
current holiday year. Except as provided at
schedule 1.2, No employee has been engaged by the Seller in
relation to the Business since February 7, 2007 and no person
employed by the Seller at or since that date has ceased, or
given or received notice to cease, to be so employed or will
be entitled to give such notice as a result of the provisions
of this Agreement. The Seller has maintained
adequate and suitable records regarding the service of each
of the Employees and complied with all agreements for the
time being relating to them. There is no
recognition, wage bargaining or other collective or other
agreement or arrangement in force or proposed between the
Seller and any trade union or similar organization, there is
no dispute (current or threatened) between the Seller and any
trade union or similar organization and there has been no
industrial action affecting the Business during the past five
(5) years. The Seller is and has been at all times
in compliance with all legislation, regulations and codes of
practice in relation to the Employees, and no orders, awards
or other notices have been served on and no other enforcement
or similar proceedings have been taken against the Seller
pursuant to any legislation, regulations or codes of practice
in respect of the Employees. All of the Employees
(and all other workers involved in the Business) are legally
entitled to be in and work in the United
Kingdom. No retirement, death or disability
benefit scheme for present or former officers or employees or
their dependants is in existence, no proposals have been
announced and the Seller is not under any legal or moral
obligation to establish any such scheme.
14.11
Accuracy of Representations and Warranties
. None of the representations or warranties of the
Seller contain or will contain any untrue statement of a
material fact or omit or will omit or misstate a material
fact necessary in order to make statements in this Agreement
not misleading. The Seller knows of no fact that
has resulted in a material change in the business, operations
or assets of the Seller that has not been set forth in this
Agreement or otherwise disclosed to the
Purchaser.
15.
Representations and Warranties of Purchaser
. The Purchaser represents and warrants as
follows:
15.1
Corporate Existence . The Purchaser is now,
and on the Closing Date will be, a corporation duly
organized, validly existing and in good standing under the
laws of the United Kingdom, has all requisite corporate power
and authority to enter into this Agreement and perform its
obligations hereunder.
15.2
Authorization . The Purchaser has full
corporate authority to execute and deliver this Agreement and
any other agreement to be executed and delivered by the
Purchaser in connection herewith, and to carry out the
transactions contemplated hereby. The execution
and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by
all necessary corporate and shareholder action. No
other corporate proceedings by the Purchaser will be
necessary to authorize this Agreement or the carrying out of
the transactions contemplated hereby. This
Agreement constitutes a valid and binding Agreement of the
Seller, in accordance with its terms. The
Purchaser has consulted its own financial advisor, tax
advisor and accountant, as necessary or desirable, as to
matters concerning this Agreement.
15.3
Conflict with Other Agreements, Consents and Approvals
. With respect to (i) the articles of
incorporation, bylaws or similar document of the Purchaser,
(ii) any applicable law, statute, rule or regulation, (iii)
any contract to which the Purchaser is a party or may be
bound, or (iv) any judgment, order, injunction, decree or
ruling of any court or governmental authority to which the
Purchaser is a party or subject, the execution and delivery
by the Purchaser of this Agreement and any other agreement to
be executed and delivered by the Purchaser in connection
herewith and the consummation of the transactions
contemplated hereby will not (a) result in any violation,
conflict or default, or give to others any interest or
rights, including rights of termination, cancellation or
acceleration, or (b) require any authorization, consent,
approval, exemption or other action by any court or
administrative or governmental body which has not been
obtained, or any notice to or filing with any court or
administrative or governmental body which has not been given
or done.
15.4
Employees of Andronics . The Purchaser has had the
opportunity to examine full and accurate details of the
'employee liability information' (as defined in the
Regulations). Additionally, the Seller has
supplied the Purchaser with the following: (i) the identity
of the Employees; (ii) the ages of the Employees; (iii) the
information contained in the written statements of employment
particulars for the Employees; (iv) the information relating
to any collective agreements that apply to the Employees,
where the procedures set out in the Employment Act 2002
(Dispute Resolution) Regulations 2004 apply; (v) instances
within the preceding two (2) years of any disciplinary action
taken by the Seller in respect of any of the Employees or of
any grievances raised by any of the Employees; (vi) instances
of any legal action taken by any of the Employees against the
Seller in the preceding two (2) years; and (vii) instances of
potential legal actions that may be brought by any of the
Employees against the Seller where the Seller has reasonable
grounds to believe such actions might occur.
15.5
Accuracy of Representations and Warranties
. None of the representations or warranties of the
Purchaser contain or will contain any untrue statement of a
material fact or omit or will omit or misstate a material
fact necessary in order to make the statements contained
herein not misleading.
16.
Conditions Precedent to Purchaser’s Obligations
. The obligation of the Purchaser to purchase the
Assets is subject to the fulfillment, prior to or at the
Closing Date, of each of the following conditions, any one or
portion of which may be waived in writing by the
Purchaser:
16.1
Representations, Warranties and Covenants of Seller
. The representations and warranties of the Seller
contained herein and any other documents delivered by the
Seller in connection with this Agreement shall be true and
correct in all material respects at the Closing; and the
Seller shall have performed all obligations and complied with
all agreements, undertakings, covenants and conditions
required by this Agreement to be performed or complied with
by it or prior to the Closing.
16.2
Licenses and Permits . The Purchaser shall
have obtained all licenses and permits from public
authorities necessary to authorize the ownership and
operation of the business of the Seller.
16.3
Conditions of the Business . There shall
have been no material adverse change in the manner of
operation of the Seller’s business prior to the Closing
Date.
16.4 No
Suits or Actions . At the Closing Date no
suit, action or other proceeding shall have been threatened
or instituted to restrain, enjoin or otherwise prevent the
consummation of this Agreement or the contemplated
transactions.
17.
Conditions Precedent to Obligations of the Seller
. The obligations of the Seller to consummate the
transactions contemplated by this Agreement are subject to
the fulfillment, prior to or at the Closing Date, of each of
the following conditions, any one or a portion of which may
be waived in writing by the Seller;
17.1
Representations, Warranties and Covenants of Purchaser
. All representations and warranties made in this
Agreement by the Purchaser shall be true as of the Closing
Date as fully as though such representations and warranties
had been made on and as of the Closing Date, and the
Purchaser shall not have violated or shall not have failed to
perform in accordance with any covenant contained in this
Agreement.
18.
Covenants Subsequent to the Closing Date
.
18.1 Lease Agreement
. A lease agreement with Robert and Margaret
Andrews for the lease of the property consisting of the
current Andronics offices, located at Unit 20 Ballinska Road,
Springtown Industrial Estate, Londonderry, Northern Ireland
BT48 0NA. The monthly facilities rental pursuant
to the lease agreement shall be Ten Thousand Pounds
(₤10,000 GBP) per month for the term of the
lease. The Parties shall reasonably agree upon the
lease agreement terms on or before the Closing
Date. Upon the Closing Date, a copy of the lease
agreement shall be attached hereto as Exhibit D and
made apart hereof.
18.2
Advisory Board . The Purchaser acknowledges
the personal liability of Robert Andrews in connection with
the Six Hundred Fifty Thousand Pound (£650,000 GBP)
personal guarantee made for the benefit of
Andronics. At the Closing, Robert Andrews shall be
appointed to the advisory board of Secure Asset Reporting
Services, Inc. Mr. Andrews shall serve as an
advisory board director until the earlier of (i) his
resignation, (ii) appointment of his successor or (iii) his
termination.
18.3 Common
Stock Options . For services rendered to
Andronics after the Closing Date, Robert Andrews shall be
entitled to acquire SARS Common Stock equal to the total
aggregate amount of one million five hundred thousand
(1,500,000) shares at One United States Cent ($0.01 USD) per
share (the “ Andrews Options ”).
The Andrews Options must be exercised before the end of the
first quarter immediately preceding the twelve (12) month
period the options vested in or they are
forfeited. The Andrews Options shall vest in
accordance with the following:
18.3.1 One
million (1,000,000) shares shall vest monthly beginning upon
the Closing Date ( “ Andrews Monthly
Options ”).
18.3.2 Five
hundred thousand (500,000) shares shall vest quarterly upon
meeting the revenue projections listed in Schedule
18.3.2 and in the following amounts:
Quarter 1: 50,000 options
vest
Quarter
2: 100,000 options vest
Quarter
3: 150,000 options vest
Quarter
4: 200,000 options vest
If
any revenue projections are not met for any given quarter, the
option amount for that quarter, less ten percent (10%), shall
be added to the fourth quarter’s total. If
the fourth quarter goals are not met, that quarters entire
option amount (whether or not accrued options have been added
to the fourth quarter) shall be forfeited. Section
18.3.2 shall be hereinafter defined as “ Andrews
Quarterly Options .”
Robert
Andrews covenants to pay to the Purchaser (or as the Purchaser
may direct) an amount equal to any liability of the Purchaser
(or any other person) to pay income tax or national insurance
contributions (both employers and employees) (a “
Relevant Tax Liability ”) arising as a
result of the grant, exercise, assignment or release of the
Andrews Options or as the result of the acquisition, holding
or disposal of SARS Common Stock by Mr. Andrews. In
connection therewith, Mr. Andrews and the Purchaser agree
that:
(i) if
so requested by the Purchaser at any time after the Closing
Date, Mr. Andrews shall enter into an election under Section
431 of the Income Tax (Earnings and Pensions) Act 2003 in
respect of any SARS Common Stock acquired by Mr. Andrews
pursuant to the option; and
(ii) it
shall be a condition of the exercise of the Andrews Options
that Mr. Andrews shall remit to the Purchaser (or as it may
direct) in cleared funds the amount of any Relevant Tax
Liability or make such other arrangements for the discharge of
such Relevant Tax Liability as the Board of Directors of the
Purchaser may in its absolute discretion think
fit.
19.
Non-Competition, Non-Solicitation .
19.1
Non-Competition . Seller agrees that,
without both the disclosure to and the written approval of
the Board of Directors of SARS Corporation, it shall not,
directly or indirectly, engage or be interested in (whether
as a principal, lender, employee, officer, director, partner,
venturer, consultant or otherwise) any business(es) that is
competitive with the business being conducted by the
Purchaser, without the express written approval of the Board
of Directors of SARS Corporation.
19.2
Non-Solicitation . Seller agrees that,
without the prior written consent of the Company’s
Board of Directors, for a period of two (2) years after the
Closing Date, it shall not, directly or indirectly disturb,
entice, or in any other manner persuade, any Employee of the
Seller or Purchaser to discontinue that person’s or
firm’s relationship with the Business if the
Employee(s) were employed by the Seller at any time during
the twelve (12) month period prior to the Closing
Date.
20.
Purchaser’s Acceptance . The
Purchaser represents and acknowledges that it has entered
into this Agreement on the basis of its own examination,
personal knowledge and opinion of the value of the
business. The Purchaser has not relied on any
representations made by the Seller other than those specified
in this Agreement. The Purchaser further
acknowledges the Seller has not made any agreement or promise
to repair or improve any of the leasehold improvements,
equipment or other personal property being sold to the
Purchaser under this Agreement, and that the Purchaser takes
all such property in the condition existing on the Execution
Date, except as otherwise provided in this
Agreement.
21.
Risk of Loss . The risk of loss, damage or
destruction to any of the equipment, inventory or other
personal property to be conveyed to the Purchaser under this
Agreement shall be borne by the Seller up to the time of
Closing. In the event of such loss, damage or
destruction, the Seller, to the extent reasonable, shall
replace the lost property or repair or cause to repair the
damaged property to its condition prior to the
damage. If replacement, repairs or restorations
are not completed prior to Closing, then the purchase price
shall be adjusted by an amount agreed upon by the Purchaser
and the Seller that will be required to complete the
replacement, repair or restoration following
Closing. If the Purchaser and the Seller are
unable to agree, then the Purchaser, at its sole option and
notwithstanding any other provision of this Agreement, upon
notice to the Seller, may rescind this Agreement and declare
it to be of no further force and effect, in which event there
shall be no Closing of this Agreement and all the terms and
provisions of this Agreement shall be deemed null and
void. If, prior to Closing, any of the real
properties that are the subject of the leases to be assumed
by the Purchaser are materially damaged or destroyed, then
the Purchaser may rescind this Agreement in the manner
provided above unless arrangements for repair satisfactory to
all parties involved are made prior to Closing.
22.
Indemnification and Survival .
22.1
Survival of Representations and Warranties
. All representations and warranties made in this
Agreement shall survive the Closing of this Agreement, except
that any party to whom a representation or warranty has been
made in this Agreement shall be deemed to have waived any
misrepresentation or breach of representation or warranty of
which such party had knowledge prior to
Closing. Any party learning of a misrepresentation
or breach of representation or warranty under this Agreement
shall immediately give written notice thereof to all other
parties to this Agreement. The representations and
warranties in this Agreement shall terminate two (2) years
from the Closing Date, and such representations or warranties
shall thereafter be without force or effect, except any claim
with respect to which notice has been given to the party to
be charged prior to such expiration date.
22.2
Seller’s Indemnification . The Seller
hereby agrees to indemnify and hold the Purchaser, it
successors and assigns harmless from and against: (i) Any and
all damages, losses, claims, liabilities, deficiencies and
obligations of every kind and description, contingent or
otherwise, arising out of or related to the operation of the
Seller’s business prior to the close of business on the
day before the Closing Date, except for damages, losses,
claims, liabilities, deficiencies and obligations of the
Seller expressly assumed by the Purchaser under this
Agreement or paid by insurance maintained by the Seller or
the Purchaser, (ii) any and all damage or deficiency
resulting from any material misrepresentation, breach of
warranty or covenant, or nonfulfillment of any agreement on
the part of the Seller under this Agreement, and (iv) any and
all actions, suits, claims, proceedings, investigation,
audits, demands, assessments, fines, judgments, costs and
other expenses (including, without limitation, reasonable
audit and attorneys fees) incident to any of the
foregoing.
The Seller’s
indemnity obligations under this Section 22.2 shall be
subject to the following: (i) if any claim is asserted
against the Purchaser that would give rise to a claim by the
Purchaser against the Seller for indemnification under the
provisions of this Section, then the Purchaser shall promptly
give written notice to the Seller concerning such claim and
the Seller shall, at no expense to the Purchaser, defend the
claim, and (ii) the Seller shall not be required to indemnify
the Purchaser for an amount that exceeds the fair market
value of the Purchase Price paid by the Purchaser under this
Agreement.
22.3
Purchaser’s Indemnification . The
Purchaser agrees to defend, indemnify, and hold harmless the
Seller from and against (i) any and all claims, liabilities
and obligations of every kind and description arising out of
or related to the operation of the business following Closing
or arising out of the Purchaser’s failure to perform
obligations of the Seller assumed by the Purchaser pursuant
to this Agreement; (ii) any and all damage or deficiency
resulting from any material misrepresentation, breach of
warranty or covenant, or nonfulfillment of any agreement on
the part of the Purchaser under this Agreement, and (iii) any
and all actions, suits, claims, proceedings, investigation,
audits, demands, assessments, fines, judgments, costs and
other expenses (including, without limitation, reasonable
audit and attorneys fees) incident to any of the
foregoing.
23.
Disputes . In the event of a dispute
between the Parties as to any material term herein, the
Parties shall first attempt to resolve the dispute
informally.
23.1 No
claim shall be brought by the Purchaser against the Seller
unless notice in writing has been given to the Seller as soon
as reasonably practicable, and in any event within
twenty-eight (28) days after the Purchaser becomes aware of
the grounds for a claim and on or before the first anniversary
of this Agreement specifying the nature of the claim in
reasonably sufficient detail and so far as practicable the
amount claimed.
23.2 Any
claim shall become fully barred and unenforceable after the
second anniversary of this Agreement unless proceedings in
respect of that claim have been commenced. For this purpose,
proceedings shall not be deemed to have been commenced unless
they have been issued and served upon the Seller.
23.3
Attorneys' Fees . If any action, suit or
proceeding is commenced to establish, maintain, or enforce any
right or remedy under this Agreement, the party not prevailing
therein shall pay, in addition to any damages or other award,
all reasonable attorneys' fees and litigation expenses
incurred therein by the prevailing party.
23.4 The Purchaser shall
have no claim whatever against the Seller: (i) if and to the
extent that the breach on which the claim is based occurs as
a result of any legislation not in force on the Execution
Date that takes effect retrospectively or any increase in the
rates of taxation in force at that date, or as a consequence
of a change in the interpretation of the law in any
jurisdiction after the Execution Date; (ii) if and to the
extent that the breach on which the claim is based would not
have arisen but for any voluntary act, omission, transaction
or arrangement by or with the Purchaser or any person
connected with the Purchaser after the Closing Date otherwise
than in the ordinary course of conducting the Business which
the Purchaser knew or ought reasonably to have known could
give rise to a claim; (iii) to the extent that the claim
arises only as a result of any changes after the Closing Date
in the accounting bases, policies or methods used by the
Purchaser to value any of its assets, or; (iv) to the extent
that the claim relates to any loss for which the Purchaser is
indemnified by insurance or for which it would have been
indemnified if at the relevant time the Purchaser had
maintained valid and adequate insurance cover that is
normally effected by prudent companies carrying on a business
similar to the Business.
23.5 No claim
shall be made by the Purchaser if the fact, omission,
circumstance or occurrence giving rise to the claim has been
fully and fairly disclosed to the Purchaser in this
Agreement.
23.6
Conduct of Claims . Should the Purchaser become aware
of any grounds that might give rise to a claim, having given
notice to the Seller in accordance with Section 23.1, the
Purchaser (i) shall not make any admission of liability or
agreement or compromise with any party without prior
consultation with and the agreement of the Seller, which
shall not be unreasonably withheld or delayed; (ii) should
the claim result from or arise from a dispute with a third
party, take such action to avoid, dispute, resist, appeal,
compromise or contest the dispute as the Seller may
reasonably request and at the Seller's expense; (iii) shall
make available to the Seller all information reasonably
required and available to enable the Seller to avoid,
dispute, resist, appeal, compromise or contest the claim and
any liability connected with the claim; and (iv) shall not be
obliged to take any action which on a reasonable view is
likely materially to prejudice the Business or the
Purchaser.
23.7 Should the
Purchaser receive any payment or benefit from any policy of
insurance or any third party other than the Seller as a
result of the circumstances giving rise to a claim, and the
Seller has made any payment to the Purchaser in respect of
that claim, the Purchaser shall, as soon as practicable after
receipt, reimburse the Seller an amount which is the lesser
of the amount of the payment or benefit received from the
insurer or other third party and the payment received from
the Seller, having deducted all costs, charges and expenses
reasonably incurred by the Purchaser in obtaining the payment
or benefit.
23.8 If any
potential claim arises by reason of a liability that is
contingent only, the Seller shall not be under any obligation
to make any payment for that claim until such time as the
contingent liability becomes actual.
24.
Miscellaneous Provisions .
24.1
Notices . All notices, requests, demands,
claims, consents and other communications required or
permitted under this Agreement shall be in
writing. Any notice, request, demand, claim,
communication or consent under this Agreement shall be deemed
duly given if (and shall be effective two (2) business days
after) it is sent by certified mail and addressed to the
intended recipient as set forth below:
|
If
to Purchaser:
|
Jinkhold,
Ltd.
c/o
SARS Corporation
__________________________
__________________________
__________________________
|
|
With
a Copy to:
|
The
Otto Law Group, PLLC
Attn:
David Otto
601
Union Street, Suite 4500
Seattle,
WA 98101
United
States
|
|
If
to Seller:
|
Andronics,
Ltd.
Unit
20 Balliniska Road
Springtown
Industrial Estate
Londonderry
Northern
Ireland
BT48
ONA
|
|
With
a Copy to:
|
Ciaran
Hampson
6 Castle
Street
Londonderry
County
Londonderry
BT48
6HQ
|
or
at any other address as any party may, from time to time,
designate by notice given in compliance with this
section.
24.2
Time . Time is of the essence of this
Agreement.
24.3
Survival . Any of the terms and covenants
contained in this Agreement which require the performance of
either party after the Closing shall survive the Closing and
delivery of the Assets.
24.4
Waiver . Failure of either party at any
time to require performance of any provision of this
Agreement shall not limit the party’s right to enforce
the provision, nor shall any waiver of any breach of any
provision be a waiver of any succeeding breach of any
provision or a waiver of the provision itself for any other
provision.
24.5
Assignment . Except as otherwise provided
within this Agreement, neither party hereto may transfer or
assign this Agreement without the prior written consent of
the other party.
24.6
Governing Law . This Agreement shall be
governed by and construed in accordance with the laws of
Northern Ireland, without giving effect to the conflicts of
law principles thereof.
24.7
Venue . The parties to this Agreement agree
that any action on this Agreement shall be brought in a court
of competent jurisdiction located in Northern
Ireland.
24.8 Titles and
Captions . All articles, sections and
paragraph titles or captions contained in this Agreement are
for convenience only and shall not be deemed part of the
context nor affect the interpretation of this
Agreement.
24.9
Entire Agreement . This Agreement contains the entire
understanding between and among the Parties and supersedes
any prior understandings and agreements among them respecting
the subject matter of this Agreement.
24.10
Construction . The Parties have
participated jointly in the negotiation and drafting of this
Agreement. In the event an ambiguity or question
of intent or interpretation arises, this Agreement shall be
construed as if drafted jointly by the parties and no
presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any of
the provisions of this Agreement. Any reference to
any statute or law shall be deemed also to refer to all rules
and regulations promulgated thereunder, unless the context
requires otherwise. The word
“including” shall mean including without
limitation.
24.11 Prior
Agreements . This document is the entire,
final and complete agreement of the Parties pertaining to the
purchase of the Assets, and supersedes and replaces all prior
or existing written and oral agreements between the parties
or their representatives relating to the Assets.
24.12
Modifications Must Be in Writing . This
Agreement may not be changed orally. All
mo
