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INTAC INTERNATIONAL INC
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8-K
Jan 30, 6:33 PM ET
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INTAC INTERNATIONAL INC 8-K
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Contents
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Article I
DEFINITIONS
(a) when a reference is made in this Agreement to an Article, Section, Exhibit or Schedule, such reference is to an Article or Section of, or an Exhibit or Schedule to, this Agreement unless otherwise indicated;
(b) the table of contents and headings for this Agreement are for reference purposes only and do not affect in any way the meaning or interpretation of this Agreement;
(c) whenever the words “include,” “includes” or “including” are used in this Agreement, they are deemed to be followed by the words “without limitation”;
(d) the words “hereof,” “herein” and “hereunder” and words of similar import, when used in this Agreement, refer to this Agreement as a whole and not to any particular provision of this Agreement;
(e) all terms defined in this Agreement have the defined meanings when used in any certificate or other document made or delivered pursuant hereto, unless otherwise defined therein;
(f) the definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms;
(g) references to a Person are also to its successors and permitted assigns; and
(h) the use of “or” is not intended to be exclusive unless expressly indicated otherwise.
Article II
PURCHASE AND SALE
(a) share certificates evidencing the Shares (excluding the Trust Shares) for each Distribution Company, with all applicable stock transfer documentation (including the instruments of transfer (except in relation to the Trust Shares) and sold notes in respect of Global and INTAC Telecommunications only) duly completed and executed;
(b) written approval declarations by the Seller and the Seller Parent of the deed of the share transfer agreement regarding the shares in INTAC Deutschland to be faxed in advance to the notary public that has notarized the transfer deed and the original of which to be delivered by courier to the same notary public;
(c) if applicable, the executed Novation Agreement;
(d) counterparts of the Payables Escrow Agreement executed by the Seller and Seller Parent;
(e) a true and complete copy, certified by an officer of the Seller Parent, of the resolutions duly and validly adopted by the Board of Directors of the Seller Parent and the stockholders of the Seller Parent evidencing their authorization of the execution and delivery of this Agreement and the Ancillary Agreements to which it is a party and the consummation of the transactions contemplated hereby and thereby;
(f) a true and complete copy, certified by an officer of the Seller, of the resolutions duly and validly adopted by the Board of Directors of the Seller and the shareholders of the Seller evidencing their authorization of the execution and delivery of this Agreement and the Ancillary Agreements to which it is a party and the consummation of the transactions contemplated hereby and thereby;
(g) a true and complete copy of the resolutions duly and validly adopted by the Board of Directors of Intac Trading and the shareholders of Intac Trading evidencing their authorization of the execution and delivery of this Agreement and the Ancillary Agreements to which it is a party and the consummation of the transactions contemplated hereby and thereby;
(h) a certificate of an officer of the Seller Parent certifying the names and signatures of the officers of the Seller Parent authorized to sign this Agreement and the Ancillary Agreements to which it is a party and the other documents to be delivered hereunder and thereunder;
(i) a certificate of an officer of the Seller certifying the names and signatures of the officers of the Seller authorized to sign this Agreement and the Ancillary Agreements to which it is a party and the other documents to be delivered hereunder and thereunder;
(j) a certificate of an officer of Intac Trading certifying the names and signatures of the officers of Intac Trading authorized to sign this Agreement and the Ancillary Agreements to which it is a party and the other documents to be delivered hereunder and thereunder;
(k) a certificate of a duly authorized officer of the Seller Parent and the Seller certifying as to the matters set forth in Section 6.03(a).
(a) stock certificates evidencing 3,000,000 shares of common stock of Seller Parent, par value $0.001, duly endorsed in blank, or accompanied by stock powers duly executed in blank and with all required stock transfer tax stamps affixed;
(b) written approval declarations by the Purchaser and the Purchaser Parent of the deed of the share transfer agreement regarding the shares in INTAC Deutschland to be faxed in advance to the notary public that has notarized the transfer deed and the original of which to be delivered by courier to the same notary public;
(c) counterparts of the Payables Escrow Agreement executed by the Purchaser and Purchaser Shareholder;
(d) a true and complete copy, certified by an officer of the Purchaser, of the resolutions duly and validly adopted by the Board of Directors of the Purchaser and the shareholders of the Purchaser evidencing their authorization of the execution and delivery of this Agreement and the Ancillary Agreements to which it is a party and the consummation of the transactions contemplated hereby and thereby;
(e) a certificate of an officer of the Purchaser certifying the names and signatures of the officers of the Purchaser authorized to sign this Agreement and the Ancillary Agreements to which it is a party and the other documents to be delivered hereunder and thereunder;
(f) a certificate of a duly authorized officer of the Purchaser and Purchaser Shareholder certifying as to the matters set forth in Section 6.01(a); and
(g) with respect to the Trust Shares, the bought note executed by the Purchaser in favor of the Purchaser Shareholder.
Article III
REPRESENTATIONS AND WARRANTIES OF THE SELLER and seller parent
Article V
additional agreements
(b) For a period of seven years after the Closing, the Purchaser shall (i) retain the books and records relating to the Business, the Distribution Companies and Meidi Technology relating to periods prior to the Closing, and (ii) upon reasonable notice, afford the officers, employees, agents and representatives of the Seller Parent, Seller and Intac Trading reasonable access (including the right to make, at their own expense, photocopies), during normal business hours, to such books and records; provided, however, that the Purchaser shall notify Seller Parent at least 30 days in advance of destroying any such books and records after the seventh anniversary of the Closing in order to provide the Seller Parent the opportunity to access such books and records in accordance with this Section 5.01(b).
(b) Notwithstanding anything herein to the contrary, each party hereto (and its representatives, agents and employees) may consult any tax advisor regarding the tax treatment and tax structure of the transactions contemplated hereby, and may disclose to any person, without limitation of any kind, the tax treatment and tax structure of such transactions and all materials (including opinions and other tax analyses) that are provided relating to such treatment or structure.
(b) Without limiting the generality of the Purchaser’s and Purchaser Shareholder’s undertaking pursuant to Section 5.03(a), the Purchaser and Purchaser Shareholder agree to use best efforts and to take any and all steps necessary to avoid or eliminate each and every impediment under any antitrust, competition or trade regulation Law that may be asserted by any United States or non-United States governmental antitrust authority or any other party so as to enable the parties hereto to expeditiously close the transactions contemplated hereby no later than August 31, 2007 (the “Termination Date”), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divesture or disposition of such of its assets, properties or businesses or of the assets, properties or businesses to be acquired by it pursuant hereto as are required to be divested in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding, which would otherwise have the effect of materially delaying or preventing the consummation of the transactions contemplated hereby. In addition, the Purchaser and Purchaser Shareholder shall use best efforts to defend through litigation on the merits any claim asserted in court by any party in order to avoid entry of, or to have vacated or terminated, any decree, order or judgment (whether temporary, preliminary or permanent) that would prevent the Closing by the Termination Date.
(c) Each party shall promptly notify the other parties of any communication it or any of its Affiliates receives from any Governmental Authority relating to the matters that are the subject of this Agreement and permit the other parties to review in advance any proposed communication by such party to any Governmental Authority. No party shall agree to participate in any meeting with any Governmental Authority in respect of any filings, investigation or other inquiry unless it consults with the other parties in advance and, to the extent permitted by such Governmental Authority, gives the other parties the opportunity to attend and participate at such meeting. The parties will coordinate and cooperate fully with each other in exchanging such information and providing such assistance as the other parties may reasonably request in connection with the foregoing. The parties will provide each other with copies of all correspondence, filings or communications between them or any of their representatives, on the one hand, and any Governmental Authority or members of its staff, on the other hand, with respect to this Agreement and the transactions contemplated by this Agreement.
(b) The Purchaser shall, as soon as practicable after the Closing, but in no event later than 5 Business Days thereafter, cause the Distribution Companies and Meidi Technology (if applicable) to file amended articles of incorporation with the appropriate authorities changing its corporate name to a corporate name that does not contain any Retained Names and Marks and to supply promptly any additional information and documentary materials that may be requested by the Seller Parent with respect to such filings.
(c) The Distribution Companies and Meidi Technology (if applicable) shall, for a period of 20 Business Days after the date of the Closing, be entitled to use all of their existing stocks of signs, letterheads, advertisements and promotional materials, inventory and other documents and materials (“Existing Stock”) containing the Retained Names and Marks, after which date the Purchaser shall cause the Distribution Companies and Meidi Technology (if applicable) to remove or obliterate all Retained Names and Marks from such Existing Stock or cease using such Existing Stock, and transfer to the Seller Parent any rights with respect to Internet domain names incorporating any Retained Names or Marks.
(d) Except as expressly provided in this Agreement, no other right to use the Retained Names and Marks is granted by the Seller Parent, Seller or Intac Trading to the Purchaser, Purchaser Shareholder, the Distribution Companies or Meidi Technology, whether by implication or otherwise, and nothing hereunder permits the Purchaser, Purchaser Shareholder, the Distribution Companies or Meidi Technology to use the Retained Names and Marks on any documents, materials, products or services other than in connection with the Existing Stock. The
Purchaser shall ensure that all use of the Retained Names and Marks by the Distribution Companies or Meidi Technology as provided in this Section 5.04 shall be only with respect to goods and services of a level of quality equal to or greater than the quality of goods and services with respect to which the Business used the Retained Names and Marks prior to the Closing.
Article VI
CONDITIONS TO CLOSING
(a) Representations, Warranties and Covenants. (i) The representations and warranties of the Purchaser and Purchaser Shareholder contained in this Agreement (A) that are not qualified as to “materiality” shall be true and correct in all material respects as of the Closing and (B) that are qualified as to “materiality” shall be true and correct as of the Closing, except to the extent such representations and warranties are made as of another date, in which case such representations and warranties shall be true and correct in all material respects or true and correct, as the case may be, as of such other date, and (ii) the covenants and agreements contained in this Agreement to be complied with by the
Purchaser and Purchaser Shareholder on or before the Closing shall have been complied with in all material respects;
(b) Governmental Approvals. Any waiting period (and any extension thereof) under the antitrust legislation of any relevant jurisdiction applicable to the purchase of the Acquired Interests contemplated by this Agreement shall have expired or shall have been terminated;
(c) No Order. No Governmental Authority shall have enacted, issued, promulgated, enforced or entered any Law or Governmental Order (whether temporary, preliminary or permanent) that has the effect of making the transactions contemplated by this Agreement or the Ancillary Agreements illegal or otherwise restraining or prohibiting the consummation of such transactions;
(d) Shareholder Approval. Seller Parent, Seller and Intac Trading shall have obtained the requisite shareholder approval for this Agreement and the Ancillary Agreements and the transactions contemplated hereby and thereby; and
(a) Closing of Acquisition of Shares. Each of the conditions as set forth under Section 6.01 shall have been fulfilled or waived by the Seller Parent and Seller;
(b) PRC NewCo. Purchaser or Purchaser Shareholder shall have caused a new limited liability company to have been duly formed under the laws of the PRC, including, without limitation, with (i) a validly issued and effective business license issued by the Beijing branch State Administration of Industry and Commerce of the PRC, and (ii) duly approved articles of association approved by the Beijing branch of Ministry of Commerce of the PRC (“PRC NewCo”), whose shareholders shall have entered into agreements (the “Control Agreements”) with HSWI or any person designated by HSWI in form and substance satisfactory to HSWI for the control and management of PRC NewCo;
(c) VAT License. The PRC NewCo shall have been issued a valid and effective VAT License; and
(d) BBS Permit. The PRC NewCo shall have been issued a valid and effective permit to provide BBS related services; and
(e) Internet Publishing. The PRC NewCo shall have been issued a valid and effective Permit for Internet Publishing (“中华人民共和国出版物经营许可证”) issued by the Beijing branch of the General Administration of Press and Publication of China.
SECTION 6.03. Conditions to Obligations of the Purchaser Shareholder and Purchaser. The obligations of the Purchaser Shareholder and Purchaser to acquire the Shares and Meidi Tech Control (if applicable) as contemplated by this Agreement shall be subject to the fulfillment or written waiver, at or prior to the Closing, of each of the following conditions:
(a) Representations, Warranties and Covenants. (i) The representations and warranties of the Seller Parent and Seller contained in this Agreement (A) that are not qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all material respects as of the Closing and (B) that are qualified as to “materiality” or “Material Adverse Effect” shall be true and correct as of the Closing, other than such representations and warranties that are made as of another date, in which case such representations and warranties shall be true and correct in all material respects or true and correct, as the case may be, as of such other date, and (ii) the covenants and agreements contained in this Agreement to be complied with by the Seller Parent and Seller at or before the Closing shall have been complied with in all material respects, provided, however, that the Seller Parent and Seller shall be deemed to have complied with this Section 6.03(a) if any action or omission of the Purchaser Shareholder shall have been the cause of, or shall have resulted in any breach or non-compliance of the representations, warranties or covenants of Seller Parent or Seller;
(b) Governmental Approvals. Any waiting period (and any extension thereof) under the antitrust legislation of any relevant jurisdiction applicable to the purchase of the Acquired Interests contemplated by this Agreement shall have expired or shall have been terminated;
(c) No Order. No Governmental Authority shall have enacted, issued, promulgated, enforced or entered any Law or Governmental Order (whether temporary, preliminary or permanent) that has the effect of making the transactions contemplated by this Agreement or the Ancillary Agreements illegal or otherwise restraining or prohibiting the consummation of such transactions;
Article VII
INDEMNIFICATION
SECTION 7.01. Non-Survival of Representations and Warranties. The representations and warranties in this Agreement shall terminate at the Closing or upon the termination of this Agreement pursuant to Section 8.01. The covenants and other agreements in this Agreement shall terminate at the Closing or upon the termination of this Agreement pursuant to Section 8.01, except for those covenants and other agreements contained herein that by their terms apply or are to be performed in whole or in part after the Closing.
SECTION 7.02. Purchaser Shareholder Indemnification. Purchaser Shareholder and Purchaser shall indemnify and hold harmless the Seller Indemnified Parties for and against any and all losses, arising out of or resulting from any claim or cause of action by any Person arising before or after the Closing against any Seller Indemnified Party in connection with the Distribution Companies or the Business.
Article VIII
TERMINATION, AMENDMENT AND WAIVER
SECTION 8.01. Termination. This Agreement may be terminated at any time prior to the Closing:
(a) by any of the parties hereto, if the Closing shall not have occurred by August 31, 2007; provided, however, that the right to terminate this Agreement under this Section 8.01(a) shall not be available to any party whose failure to fulfill any obligation under this Agreement shall have been the cause of, or shall have resulted in, the failure of the Closing to occur on or prior to such date;
(b) by any of the parties hereto, in the event that any Governmental Order restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement shall have become final and nonappealable;
(c) by the Purchaser, if (i) a supplement or amendment of any section of the Seller Disclosure Schedule made by the Seller pursuant to Section 5.05 materially and adversely affects the benefits to be obtained by the Purchaser under this Agreement and (ii) any breach of a representation, warranty, covenant or agreement referred to in such supplement or amendment cannot be or has not been cured within 30 days after such supplement or amendment is made by the Seller; provided, however, that the right to terminate this Agreement under this Section 8.01(c) shall not be available to the Purchaser if any action or omission of the Purchaser Shareholder shall have been the cause of, or shall have resulted in, such breach;
(d) by the Seller or Seller Parent, if the Purchaser or Purchaser Shareholder shall have breached any of its representations, warranties, covenants or agreements contained in this Agreement which would give rise to the failure of a condition set forth in Article VI, which breach cannot be or has not been cured within 30 days after the giving of written notice by the Seller Parent to the Purchaser and Purchaser Shareholder specifying such breach;
(e) by the Purchaser, if the Seller or Seller Parent shall have breached any of its representations, warranties, covenants or agreements contained in this Agreement which would give rise to the failure of a condition set forth in Article VI, which breach cannot be or has not been cured within 30 days after the giving of written notice by the Purchaser to the Seller and Seller Parent specifying such breach; provided, however, that the right to terminate this Agreement under this Section 8.01(e) shall not be available to
the Purchaser if any action or omission of the Purchaser Shareholder shall have been the cause of, or shall have resulted in, such breach; or
(f) by the mutual written consent of all the parties hereto.
SECTION 8.02. Effect of Termination. In the event of termination of this Agreement as provided in Section 8.01, this Agreement shall forthwith become void and there shall be no liability on the part of either party hereto except (a) as set forth in Section 5.02 and Article IX and (b) that nothing herein shall relieve either party from liability for any breach of this Agreement occurring prior to such termination.
Article IX
GENERAL PROVISIONS
SECTION 9.01. Expenses. Except as otherwise specified in this Agreement, all costs and expenses, including, fees and disbursements of counsel, financial advisors and accountants, incurred in connection with this Agreement and the transactions contemplated by this Agreement shall be borne by the party incurring such costs and expenses, whether or not the Closing shall have occurred.
SECTION 9.02. Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by delivery in person, by an internationally recognized overnight courier service, by facsimile or registered or certified mail (postage prepaid, return receipt requested) to the respective parties hereto at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this Section 9.02):
(a) if to the Seller Parent, Seller or Intac Trading:
(b) if to the Purchaser or Purchaser Shareholder:
SECTION 9.03. Public Announcements. No party to this Agreement shall make, or cause to be made, any press release or public announcement in respect of this Agreement or the transactions contemplated by this Agreement or otherwise communicate with any news media without the prior written consent of the other parties unless otherwise required by Law or applicable stock exchange regulation, and the parties shall cooperate as to the timing and contents of any such press release, public announcement or communication.
SECTION 9.04. Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any Law or public policy, all other terms and provisions of this Agreement shall nevertheless remain in full force and effect for so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner materially adverse to a party hereto. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated by this Agreement are consummated as originally contemplated to the greatest extent possible.
SECTION 9.05. Entire Agreement. This Agreement and the Ancillary Agreements constitute the entire agreement of the parties hereto with respect to the subject matter hereof and thereof and supersede all prior agreements and undertakings, both written and oral, between the parties hereto with respect to the subject matter hereof and thereof.
SECTION 9.06. Assignment. This Agreement may not be assigned by operation of law or otherwise without the express written consent of the parties hereto; provided, however, Seller Parent, Seller and Intac Trading may assign this Agreeement to any of their Affiliates without the consent of Purchaser or Purchaser Shareholder.
SECTION 9.07. Amendment. This Agreement may not be amended or modified except (a) by an instrument in writing signed by, or on behalf of each of the parties hereto or (b) by a waiver in accordance with Section 9.08.
SECTION 9.08. Waiver. Each party may (a) extend the time for the performance of any of the obligations or other acts of the other parties, (b) waive any inaccuracies in the representations and warranties of the other parties contained herein or in any document delivered by the other parties pursuant hereto or (c) waive compliance with any of the agreements of the other parties or conditions to such party’s obligations contained herein. Any such extension or waiver shall be valid only if set forth in an instrument in writing signed by the parties to be bound thereby. Any waiver of any term or condition shall not be construed as a waiver of any subsequent breach or a subsequent waiver of the same term or condition, or a waiver of any other
term or condition of this Agreement. The failure of any party to assert any of its rights hereunder shall not constitute a waiver of any of such rights.
SECTION 9.09. No Third Party Beneficiaries. Other than as set forth in this Section 9.09, this Agreement shall be binding upon and inure solely to the benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied (including the provisions of Article VII relating to indemnified parties), is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. The Parties agree that upon the closing of the Merger, HSWI shall be a third party beneficiary to this Agreement and the Ancillary Agreements and all rights of Seller Parent hereunder and thereunder shall inure to the benefit of HSWI.
SECTION 9.10. Currency. Unless otherwise specified in this Agreement, all references to currency, monetary values and dollars set forth herein shall mean United States (U.S.) dollars and all payments hereunder shall be made in United States dollars.
SECTION 9.11. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York. All Actions arising out of or relating to this Agreement shall be heard and determined exclusively in any New York federal court sitting in the Borough of Manhattan of The City of New York; provided, however, that if such federal court does not have jurisdiction over such Action, such Action shall be heard and determined exclusively in any New York state court sitting in the Borough of Manhattan of The City of New York. Consistent with the preceding sentence, the parties hereto hereby (a) submit to the exclusive jurisdiction of any federal or state court sitting in the Borough of Manhattan of The City of New York for the purpose of any Action arising out of or relating to this Agreement brought by any party hereto and (b) irrevocably waive, and agree not to assert by way of motion, defense, or otherwise, in any such Action, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the Action is brought in an inconvenient forum, that the venue of the Action is improper, or that this Agreement or the transactions contemplated by this Agreement may not be enforced in or by any of the above-named courts.
SECTION 9.12. Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH OF THE PARTIES HERETO HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.12.
SECTION 9.13. Counterparts. This Agreement may be executed and delivered (including by facsimile transmission) in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement.
SECTION 9.14. Purchaser Shareholder. Purchaser Shareholder is joining as a Party to this Agreement as a guarantor of and shall be jointly liable for Purchaser’s performance of this Agreement.
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