EXHIBIT 2.01(a)
FIRST AMENDED AND RESTATED
SHARE PURCHASE AGREEMENT
This FIRST AMENDED AND RESTATED
SHARE PURCHASE AGREEMENT (this “Agreement”) is made
this as of the 7 th day of July, 2004 by and among
EaglePicher Investments, LLC, a limited liability company duly
formed and existing under the laws of the state of Delaware with
its principal place of business at 3402 East University Drive,
Phoenix, Arizona 85034 (“Investor”); Kokam Engineering
Co., Ltd., a company duly formed and existing under the laws of the
Republic of Korea (“Korea”) with its principal place of
business at #304, 2Na, Sihwa-Kongdan, 1261-3, Jungwang-dong,
Siheung-si, Kyunggi-do (the “Company”); and Ji-Jun
Hong, a Korean national having a resident identification number of
560227-1149414 (“Major Shareholder”). Investor, the
Company and Major Shareholder may collectively be referred to as
the “Parties” and, individually, as a
“Party”.
RECITALS:
A. The Parties entered in that
certain Share Purchase Agreement dated June 17, 2004 for the
sale of 21,054,489 shares of voting common stock of the Company by
Major Shareholder to Investor (the “Original
SPA”).
B. The Parties now wish to amend
certain provisions of the Original SPA and have agreed to amend and
restate the Original SPA in its entirety on the terms and
conditions of this Agreement.
NOW, THEREFORE
, in consideration of the mutual
promises and covenants stated below, the Parties agree as
follows:
Article 1. Sale and
Purchase of the Shares.
1.1 Sale and Purchase. Subject to
the terms and conditions of this Agreement, Major Shareholder shall
sell and deliver to Investor, and Investor (in reliance upon the
representations and warranties and the undertakings and indemnities
contained or referred to herein) shall purchase from Major
Shareholder 21,054,489 shares of voting common stock of the
Company, par value KRW 500 (the “Shares”).
1.2 Initial Purchase
Price.
(a) The
initial purchase price for the Shares shall be KRW six and one-half
(6.5) billion, (the “Initial Purchase Price”). The
Initial Purchase Price shall be payable in two installments as
follows:
(i) The first
installment of one million US Dollars (US$1,000,000) (the
“Earnest Money Deposit”) will be paid within [three
(3)] days after the Bank of Korea has approved the transactions
contemplated herein and the necessary foreign investment report has
been submitted to the applicable foreign exchange bank as required
under Korean law. The second installment (the “Closing
Payment”) representing the remaining difference between the
Initial Purchase Price and the Earnest Money Deposit will be
payable on the Closing Date (as defined below) in Korean Won. For
purposes of calculating the Closing Payment, the Korean Won
equivalent of the Earnest Money Deposit shall be calculated on the
basis of the basic exchange rate published by the Korea Financial
Telecommunications and Clearings Institute on the date the Earnest
Money Deposit is paid.
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Each installment shall be made by
effecting a wire transfer into Major Shareholder’s bank
account as notified to Investor in writing.
(b) In the
event that the Closing, as defined below, has not occurred on or
before December 31, 2004, other than by reason of a failure of
a condition precedent under Article 4, the Earnest Money
Deposit shall be forfeit and will be kept by Major Shareholder and
this Agreement shall terminate with no further payments under
Section 1.2 due or owing.
1.3 Adjustment of Purchase
Price.
(a) In
addition to the Initial Purchase Price, Investor shall provide
additional payments (each a “Payment”) to Major
Shareholder equal to one percent (1%) of ten times (10x) EBITDA of
the Company for each fiscal year for a period of five
(5) years commencing from the first full quarter following the
Closing, prorated for any partial fiscal years that may occur,
provided that, the aggregate amount of such additional payment
shall in no event exceed KRW seventeen
(17) billion.
(i) All Payment
calculations shall exclude all amounts payable under the License
Agreement as defined in Section 4.11.
(ii) Each Payment
shall be paid within thirty (30) days from the date of the
ordinary general meeting of the shareholders of the Company
approving the audited financial statement for the relevant fiscal
year (each a “Payment Date”). If any Payment is not
paid within ninety (90) days of a Payment Date it will begin to
accrue interest retroactively from the Payment Date in question
until paid in full at the rate of 10% per annum.
(b) Investor
covenants that it will use sound business judgment in its support
of the management team of Company following the Closing, as defined
below, and will use its best efforts to maximize results for all
shareholders of the Company in both the short and long
term.
(c) For all
purposes under this Agreement, “EBITDA” means the
Company’s earnings before income taxes, depreciation and
amortization, as determined in accordance with United States GAAP
and as reflected in audited financial statements prepared by
Investor’s independent auditor for the relevant fiscal year
of Investor’s consolidated group.
(d) In the
event that Investor sells the Shares to a third party (a
“Change of Control”) during the five (5) year
period contemplated by Section 1.3(a), unless such third party
agrees in writing to be bound by the terms of this Agreement,
Investor shall pay to the Major Shareholder a sum equal to five
million US Dollars (US$5,000,000) less any payments made under
Section 1.3(a) to the date of the payment under this
Section 1.3(d). It shall not be considered a Change of Control
for the Investor to transfer the Shares to any entity within its
consolidated group including, without limitation, any parent,
sister or subsidiary company and Major Shareholder specifically
acknowledges that such a transfer will not trigger any payment
under this Section 1.3(d). Further, if the Company’s
shares become publicly traded, this Section 1.3(d) will be
null and void and the Investor may sell its Shares at any time
without any restriction or payment to the Majority
Shareholder.
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Article 2.
Closing.
2.1 Closing Date. Subject to the
satisfaction or, if permissible, waiver of the conditions precedent
set forth in Article 4, the closing of the sale and purchase
of the Shares as contemplated by this Agreement shall take place at
the offices of Horizon Law Group (the “Closing”),
beginning at 10:00 A.M. local time on a date to be agreed
between the Parties but in any event no later than
December 31, 2004 (the “Closing Date”).
2.2 Closing
Transactions
(a) On the
Closing Date, Major Shareholder shall (i) deliver to Investor
the share certificates representing the Shares, free and clear of
any liens, encumbrances, security interests, transfer restrictions
or adverse claims (“Encumbrances”) and duly endorsed,
and (ii) have caused the Company to duly register the name of
Investor in the Company’s registry of shareholders as record
owner of the Shares.
(b) Investor
shall pay Major Shareholder the Closing Payment on the Closing Date
by effecting a wire transfer of immediately available funds into
Major Shareholder’s bank account, which shall have been
notified in writing to Investor at least five (5) Business
Days prior to the Closing Date. Major Shareholder shall issue a
receipt to Investor evidencing such payment.
(c) Each
Party shall complete or deliver, as applicable, each other item
that is to be completed or delivered by it at Closing in accordance
with this Agreement and any relevant law whether national,
provincial or local or any decree, order, judgment, writ, award,
injunction, rule or consent of or by any government authority
(“Applicable Law”).
Article 3.
Representations and Warranties of Major Shareholder and the
Company.
Major Shareholder and the
Company, jointly and severally, represents and warrants to Investor
as set forth in Schedule 3 (the “Representations and
Warranties”).
Article 4. Conditions
Precedent to Obligation of Investor.
The obligation of Investor to
purchase the Shares pursuant to Article 1 hereof and to
consummate the transactions contemplated hereby shall be subject to
the fulfillment, on or prior to the Closing Date, of all of the
conditions set forth below, each of which is for the benefit of
Investor and may be waived by Investor in its sole
discretion:
4.1 Representations and
Warranties. All representations and warranties of Major Shareholder
and the Company contained in the Representations and Warranties
were true as of the date hereof and shall be true on and as of the
Closing Date as if made on such date.
4.2 Performance. Major
Shareholder and the Company shall have performed and complied with
all agreements and covenants required by this Agreement to be
performed or complied with by them on or prior to the
Closing.
4.3 No Material Adverse Change.
Except as disclosed in the Disclosure Schedule, as of the Closing
Date, since December 31, 2003, there has been (i) no Material
Adverse Change and there have been no events or developments that
individually or in the aggregate
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have had a Material Adverse
Effect, and (ii) no change in political or economic
circumstances, or Applicable Law, that would make the transactions
contemplated hereby impractical or illegal. For purposes of this
Agreement, “Material Adverse Change” means any event or
change that is or can reasonably be expected to be materially
adverse to, (x) the business, condition (financial or
otherwise), operations, results of operations, regulatory status,
prospects, assets or liabilities of the business of the Company or
(y) the ability of the Company to consummate the transactions
contemplated or to perform its material obligations under the
Transaction Documents; and “Transaction Documents”
means collectively, this Agreement, the License Agreement specified
in Section 4.11 and the Consulting Agreement specified in
Section 4.12.
4.4 Government Approvals. All
necessary government approvals required for Investor, Major
Shareholder and the Company’s performance hereunder and under
any of the Transaction Documents (as applicable) shall have been
obtained.
4.5 Third Party Consents. All
necessary consents or waivers in respect of any agreements to which
Major Shareholder or the Company is a party, and which relate to
the subject matter of this Agreement or the other Transaction
Documents, in form and substance satisfactory to Investor, shall
have been obtained.
4.6 Compliance Certificate. At
the Closing, each of Major Shareholder and the Company shall have
delivered to Investor a certificate signed respectively by Major
Shareholder (on his own behalf and on behalf of the Company) and
the Company certifying that the conditions specified in
Sections 4.1, 4.2 and 4.3 hereof have been
fulfilled.
4.7 Due Diligence. Investor shall
be reasonably satisfied with the results of investigations and
review of the legal, technical, business, financial and accounting
aspects of, and other matters relating to, the Company.
4.8 Company Corporate Approvals.
An appropriate corporate authority of Company shall have approved
the consummation of the transactions contemplated hereby and the
other Transaction Documents.
4.9 Amendment of the Articles of
Incorporation. The articles of incorporation of the Company shall
have been amended and restated as set forth in Schedule 4.9
attached hereto at a general meeting of the shareholders of the
Company, and be of full force and effect.
4.10 Appointment of Directors and
the Statutory Auditor. The directors and the statutory auditor
listed in Schedule 4.10 shall have resigned and the
individuals designated by the Investor shall have been duly elected
at a general meeting of the shareholders of the Company as
directors or the statutory auditor, as the case may be.
4.11 License Agreement. A license
agreement substantially in the form of Exhibit A
attached hereto (the “License Agreement”) shall have
been duly executed by the Company.
4.12 Consulting Agreement. A
consulting agreement substantially in the form of
Exhibit B attached hereto (the “Consulting
Agreement”) shall have been duly executed by the Company and
Major Shareholder.
4.13 Termination of Share
Subscription Agreements. The Company and Major Shareholder shall
have terminated the share subscription agreements listed in
Schedule 4.13.
4.14 Divestiture and Amendment to
Agreement. The Company and the Major Shareholder shall procure the
divestment or disposal of the Company’s shares or other
ownership interests in
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Shanghai Green Cell Energy
S&T Co., Ltd., Achem Opto-Electronic Corporation and Renoir Ink
Co., Ltd. prior to the Closing Date on terms and conditions
acceptable to Investor. The Company shall also have executed an
amendment to that technology transfer agreement with Shanghai Green
Cell Energy S&T Co., Ltd. dated July 15, 2002, which
amends certain terms and conditions of the license of the
Company’s technology to the satisfaction of
Investor.
4.15 Confirmation of
Work-For-Hire Inventions. The Company shall have, in a form
acceptable to Investor, obtained and delivered to Investor written
confirmations and waivers from all past and present
employee-inventors who invented the inventions subject to the
Company’s patent registrations or applications confirming
that such invention resulted within the scope of his/her employment
with the Company and has been duly assigned to the Company, and
that the Company owns all rights therein, as well as waiving any
claims or rights to challenge the Company’s ownership of such
invention and waiving rights to receive any additional compensation
for such invention.
4.16 Confidentiality and
Invention Assignment Agreement. Each of the directors, officers and
key employees of the Company shall have entered into a
confidentiality and invention assignment agreement substantially in
the form of Exhibit C .
4.17 Employee and Labor Related
Matters. The Company shall have (a) implemented and commenced a
policy to compensate all applicable employees for overtime, days
off and nighttime work in accordance with and to the extent
required by Applicable Law, (b) hired the dispatched employees
listed in Schedule 4.17 as regular employees of the Company,
entitled to all the rights and benefits of regular employees of the
Company in accordance with Applicable Law, and (c) obtained
confirmation from each of its employees, to the extent such
employee voluntarily agrees, of his/her acceptance of the
Company’s interim payments of severance benefits.
4.18 Confirmation of Voluntary
Resignation of Director. The Company shall have, in a form
acceptable to Investor, obtained duly executed confirmation letters
from Mr. Jong-Kag Kim and Mr. Jin Wook Hyun, stating that
their resignations from the Company’s board of directors on
February 12, 2004 and March 17, 2004 respectively were
voluntary and done at their own free will.
4.19 Lease Agreement with Renoir.
The Company shall have, in a form acceptable to Investor, duly
executed a lease agreement with Renoir Ink Co., Ltd.
(“Renoir”) for Renoir’s lease of the equipment
listed in Schedule 4.19 (the “Equipment”) which
expressly provides Renoir’s acknowledgement that it has no
title, ownership or interest in and to the Equipment other than the
lease of the Equipment as provided in the lease agreement with the
Company.
4.20 Jincheon-gun Property. The
Company shall have, in a form acceptable to Investor, executed an
agreement with Bontec Co., Ltd., or an affiliate thereof, whereby
(i) the Company shall waive its rights under that Land
Purchase Agreement dated April 24, 2003 between the Company
and the municipality of Jincheon-gun (as amended, the “Land
Purchase Agreement”) and (ii) in consideration for the
Company’s waiver, Hyundai shall pay KRW 65,000,000 and
indemnify the Company for any loss arising from the Company’s
waiver herein.
4.21 Company Borrowings. Investor
shall have received, in a form acceptable to Investor, a
confirmation in writing from each of the Company’s main banks
that they are prepared to continue to extend to the Company all
lending arrangements and credit lines with terms not worse than
that enjoyed by the Company as of the date of this
Agreement.
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4.22 Investor Corporate Approval.
An appropriate corporate authority of Investor shall have approved
the consummation of the transactions contemplated hereby and the
other Transaction Documents.
4.23 Vesting of Outstanding Stock
Options. The Company shall have vested all stock options
outstanding under the Company’s stock option plan.
4.24 Employee Loans. The Company
shall have, in a form acceptable to Investor, amended the existing
loan agreements with the officers and employees listed in
Schedule 4.24 (the “Borrowers”) which includes the
repayment date and requires the Borrowers to provide collateral for
such loans.
4.25 Amendment to Officer
Severance Pay Regulations. The Company shall have amended its
officer severance pay regulations in a form acceptable to
Investor.
Article 5.
Covenants.
Major Shareholder and the
Company, jointly and severally, covenant to and agree with Investor
as follows:
5.1 Ordinary Course
Operations.
(a) Except as
contemplated in the Transaction Documents, and from the date of the
Original SPA until the Closing Date, the Company will not, and
Major Shareholder and the Company respectively will not cause or
permit the Company to engage in any practice, take any action, or
enter into any transaction outside the ordinary course of business.
Without limiting the generality of the foregoing, the Company will
conduct its business in the ordinary course and in conformity with
past practice and, except as contemplated under the Transaction
Documents, the Company shall not, and Major Shareholder and the
Company respectively undertake to Investor to ensure that the
Company will not (without Investor’s prior written
consent):
(i) conduct its
business in any manner other than in the ordinary course of
business, or take or omit to take any action outside the ordinary
course of business or that would jeopardize the continuance of
their business relationships or cause any of Major
Shareholder’s or the Company’s representations and
warranties contained herein to be untrue at any time between the
date hereof through and including the Closing Date;
(ii) enter into,
amend, modify, terminate, or permit to expire any of the Material
Contracts or any government licenses or permits, or default (or
take or omit to take any action that, with or without the giving of
notice or passage of time or otherwise, would constitute a default)
on any of its obligations under any of the Material Contracts or of
any government licenses or permits, where for all purposes under
this Agreement, “Material Contracts” means all
contracts and agreements to which the Company is a party, other
than contracts that are made in the ordinary course of business and
not involving a commitment for a duration greater than six
(6) months or an aggregate payment or potential liabilities in
excess of KRW 12,000,000 or a negative operating profit;
(iii) amend its
articles of incorporation, other than at a general meeting of
shareholders of the Company to adopt the articles of incorporation
in the form
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attached hereto as Schedule 4.9;
(iv) make any
changes to the compensation (including stock option plans),
benefits plans, or other incidents of employment of its officers or
employees;
(v) (x) make
any investments, expenditures or other payments (whether in cash or
other assets) exceeding KRW 12,000,000, in any single or series of
related transactions, (y) incur, guarantee or otherwise become
liable with respect to indebtedness exceeding KRW 12,000,000, or
(z) sell, transfer, lease or otherwise dispose of assets in
any transaction or series of related transactions with a fair
market value in excess of KRW 12,000,000;
(vi) issue, sell,
redeem or acquire any debt obligation or equity securities of the
Company, or any options or other rights to acquire the same (other
than as specifically set forth in this Agreement);
(vii) declare or
pay dividends or other distributions in cash or other property on,
or redeem, purchase or otherwise acquire any of, the equity
securities of the Company; or
(viii) agree to or
commit to take any actions prohibited by this
Section 5.1.
(b) Except as
contemplated in the Transaction Documents, Major Shareholder will
not sell, transfer, pledge, restrict, or otherwise enter into any
transaction with respect to Major Shareholder’s shares of the
Company.
5.2 Preservation of Business.
Except as otherwise expressly provided in the Transaction
Documents, from the date of the Original SPA until the Closing
Date, the Company shall (i) use its best efforts to preserve
intact their respective present business organizations, operations,
and assets and to preserve the business relationships and goodwill
of licensors, customers, suppliers, and others having business
relationships with the Company, and (ii) consult with Investor
concerning, and the Company shall use its best efforts to keep
available, the services of its officers and employees.
5.3 Closing Conditions. From the
date of the Original SPA until the Closing Date, Major Shareholder
and the Company shall use their best efforts to satisfy all of the
conditions to Investor’s obligations to consummate the
transactions contemplated hereby, as set forth in Article 4
hereof, including, without limitation, the obtaining of all
necessary approvals from relevant government
authorities.
5.4 Notification of Certain
Matters. From the date of the Original SPA until the Closing Date,
Major Shareholder and the Company shall give prompt notice to
Investor of (i) the occurrence, or the failure to occur, of
any event that has caused or would be likely to cause any
representation or warranty of Major Shareholder and/or the Company
contained in this Agreement to be untrue or inaccurate, and
(ii) any failure of Major Shareholder and/or the Company to
comply with or satisfy any covenant, condition or agreement to be
complied with, satisfied by any of them under this Agreement. No
such notification shall affect the representations or warranties of
Major Shareholder and/or the Company hereunder, or the conditions
to Investor’s obligations to consummate the transactions
hereunder.
5.5 Further Assurance. Major
Shareholder and the Company shall, at any time and from time to
time, at the request of Investor, make, execute and deliver such
assignments, filings, conveyances and other instruments,
agreements, consents and assurances, and take or cause to be taken
all action as Investor may reasonably request, for the consummation
or
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confirmation of the transfers of
the Shares and other transactions contemplated hereby.
Article 6.
Indemnification.
6.1 Indemnification. Major
Shareholder and the Company shall, jointly and severally, indemnify
and hold harmless Investor, and its directors, officers, employees,
agents, successors and assigns (collectively, the “Investor
Indemnitees”) from and against and in respect of all losses,
liabilities, obligations, damages, deficiencies, actions, suits,
proceedings, demands, assessments, orders, judgments, fines,
penalties, costs and expenses (including, without limitation,
reasonable fees and disbursements of lawyers, accountants and other
professional advisers) of any kind or nature whatsoever (whether or
not arising out of third party claims and including all reasonable
amounts paid in the investigation, defense or settlement of the
foregoing) (collectively, “Losses”) sustained, suffered
or incurred by or made against any Investor Indemnitees arising out
of, based upon or in connection with (a) any inaccuracy in or
breach of a representation or warranty given or made by Major
Shareholder or the Company contained in this Agreement, and/or
(b) any breach of any covenant, undertaking or agreement given
or made by him in this Agreement. However, Major Shareholder shall
not be personally liable for any Losses that occur from actions
taken by him as an officer of the Company prior to Closing so long
as such actions are in the ordinary course of business in
conformity with past practices and Section 5.1 hereof and have
been disclosed in the Disclosure Schedule (defined
below).
6.2 Survival of Representations
and Warranties. All representations and warranties contained in
this Agreement or made in writing by any Party in connection with
this Agreement shall survive the Closing and shall continue in full
force and effect for a period of two (2) years after the
Closing Date.
Article 7.
Termination.
7.1 Termination Prior to Closing.
At any time on or prior to the Closing, Major Shareholder and the
Company, acting jointly as one Party, or Investor, acting as the
other Party, may immediately terminate this Agreement by giving
written notice of termination to the other Party, if:
(a) the
Closing has not occurred on or prior to December 31, 2004,
unless the failure of such occurrence is due to the failure of the
Party seeking to terminate this Agreement to perform its
obligations under this Agreement;
(b) the other
Party has committed a material breach of any agreement, covenant,
or other terms of this Agreement or the other Transaction Documents
(to the extent applicable), and fails to cure such breach within
ten (10) business days of the receipt of written notice from the
non-breaching Party requesting cure of the breach;
(c) there is
an inaccuracy or incompleteness in any of the representations and
warranties of the Company or Major Shareholder that is not due to
an event outside the control of the Company or Major
Shareholder;
(d) an
approval from any government authority necessary for the
transactions contemplated hereby or under the other Transaction
Documents (to the extent applicable) is ultimately denied or
rejected, or if as a result of a change in any Applicable Law,
the
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consummation of the transactions
contemplated hereby or thereby become impractical or
illegal;
(e) the
Company, any creditor of the Company, or any third party files for
composition, corporate reorganization or bankruptcy of the Company,
or the Company has become insolvent and is unable to pay any debts
as they become due or has explicitly or implicitly suspended
payment of any debts as they became due, or the Company has its
clearinghouse privileges denied (“Bankruptcy
Event”);
(f) Major
Shareholder has become subject to a Bankruptcy Event; or
(g) if the
other Party agrees in writing to the termination.
7.2 Effect of Termination. In the
event of a the termination of this Agreement under any provision of
this Article 7, this Agreement shall forthwith become null and
void, except for Articles 6.1, 7.2, 8, 9 and 10; provided, however,
that, the termination of this Agreement shall not relieve any Party
of any liability for breach of this Agreement prior to the date of
termination; provided further, that, notwithstanding
Article 1.2(b) and without limiting any other remedy available
at law, in the event this Agreement is terminated before the
Closing for causes not attributable to Investor, Major Shareholder
shall promptly return the Earnest Money Deposit to Investor; and
further, provided, that Major Shareholder’s and
Company’s sole remedy in law or in equity for breach of this
Agreement by Investor shall be the retention of the Earnest Money
Deposit.
Article 8 Confidentiality
of Transaction
No Party or their respective
affiliates shall, without the prior written consent of the other
party, disclose to any third party, before or after the Closing,
the existence of this Agreement or any information regarding the
transactions contemplated by this Agreement except in the good
faith belief of the disclosing party that such disclosure is
necessary to further the legitimate business objectives or needs of
the Company or to perform its obligations under this Agreement;
provided, however, that this Article 8 shall not prevent any
Party or any of such Party’s affiliates from disclosing any
such information to attorneys, accountants or other professional
advisors, or to any governmental authority.
Article 9. Dispute
Resolution.
9.1 Arbitration. All disputes,
claims or controversies shall be finally resolved by and through an
arbitration proceeding to be conducted in Hong Kong, PRC in the
English language, by a panel of three (3) arbitrators in
accordance with the Rules of Arbitration of the International
Chamber of Commerce. The decision of the arbitrators shall be final
and binding on the Parties, without right of appeal.
9.2 Preliminary Injunction.
Notwithstanding any other provision of this Agreement, any Party
shall be entitled to seek preliminary injunctive relief from any
court of competent jurisdiction, pending the final decision or
award of the arbitrators.
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Article 10.
Miscellaneous.
10.1 Notices. All notices,
consents, waivers, and other communications under this Agreement
shall be (i) in writing, (ii) delivered by hand-delivery,
registered first class mail (return receipt requested), facsimile,
or air courier guaranteeing overnight delivery, (iii) deemed
to have been given on the date on which it is received, and
(iv) shall be addressed to the persons and addresses specified
in the signature page to this Agreement, unless otherwise notified
by such Party.
10.2 Assignment. Investor may
assign its rights to purchase the Shares to any affiliate prior to
Closing. Major Shareholder may not assign, delegate or otherwise
transfer any of its rights or obligations under this Agreement
without the prior written consent of the other Parties.
10.3 Amendments. This Agreement
may be amended only by written agreement among Investor and Major
Shareholder.
10.4 Severability. If one of more
provisions of this Agreement are held to be invalid or
unenforceable to any extent under Applicable Law, such provision
shall be interpreted as if it were written so as to be enforceable
to the maximum extent permitted by Applicable Law, so as to
effectuate the Parties’ intent to the maximum extent, and the
remainder of this Agreement shall be interpreted as if such
provision were excluded and shall be valid and enforceable in
accordance with its terms to the maximum extent permitted by
Applicable Law.
10.5 Costs and Expenses. Each
Party shall bear its own costs and expenses incurred in connection
with this Agreement and the other Transaction Documents, including,
without limitation, the fees and expenses of their respective
accountants and legal counsel.
10.6 Further Assurances. The
Parties shall use all reasonable efforts to take, or cause to be
taken, all appropriate action, and do, or cause to be done, all
things necessary, proper or advisable under Applicable Law or
otherwise to consummate the transactions contemplated by this
Agreement and by the other Transaction Documents.
10.7 Governing Law and Governing
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