and as of the Closing with the same force and effect as if they had been made at the Closing, except, in each case, where the failure to be true and correct would not reasonably be expected to have a Material Adverse Effect, and AAA shall have received certificates to such effect executed by the CCC Shareholder.
9.2 Covenants. The CCC Shareholder shall have performed and complied in all material respects with all of its respective
covenants contained in Section 5 on or before the Closing except, in each case, where the failure to so perform or comply would not reasonably be expected to have a Material Adverse Effect, and AAA shall have received certificates to such effect signed by the CCC Shareholder.
9.3 Compliance with Law; No Legal Restraints. There shall not be outstanding, or enacted or adopted, any order, decree,
temporary, preliminary or permanent injunction, legislative enactment, statute, regulation, action, proceeding or any judgment or ruling by any court, arbitrator, governmental agency, authority or entity (other than any such matter initiated by AAA or its officers or directors), that, directly or indirectly, challenges, threatens, prohibits, enjoins, restrains, suspends, delays, conditions, or renders illegal or imposes limitations on (or is likely to result in a challenge, threat to, or a prohibition, injunction, restraint, suspension, delay or illegality of, or to impose limitations on): (i) the Exchange or any other transaction contemplated by this Agreement; (ii) AAA's payment for, or acquisition or purchase of, some or all of the shares of CCC Stock or any material part of the assets of CCC or any CCC Subsidiary; (iii) the ownership or operation by AAA or CCC of all or any material portion of the business or assets of CCC, including (but not limited to) CCC's Intellectual Property Rights; or (iv) AAA's ability to exercise full rights of ownership with respect to CCC, the CCC Subsidiaries, and their respective assets and shares, including but not limited to restrictions on AAA's ability to vote all the shares of CCC or (indirectly through ownership of CCC) any CCC Subsidiary.
9.4 Government Consents. There shall have been obtained at or prior to the Closing Date such permits or authorizations
from, and there shall have been taken such other action, as may be required to lawfully consummate the Exchange by, any governmental or regulatory authority having jurisdiction over any of the parties, or any CCC Subsidiary and/or the actions herein proposed to be taken, including but not limited to requirements under applicable U.S. and foreign securities and corporate laws.
9.5 Opinion of CCC's Counsel. AAA shall have received from counsel to the CCC Shareholder, opinions in substantially
the form of Exhibit 9.5.
9.6 Documents and Consents. CCC and the CCC Shareholder shall have executed and delivered to AAA all the CCC
Ancillary Agreements and all the Shareholder Ancillary Agreements, as applicable. The CCC Shareholder shall have delivered to AAA CCC Certificates representing 100% of the issued and outstanding shares of CCC together with the other deliverables specified in Section 2.1.1 hereof. AAA shall have received duly executed copies of all third party consents, approvals, assignments, waivers, authorizations or other certificates contemplated by this Agreement or reasonably deemed necessary by AAA's legal counsel to provide for the continuation in full force and effect of any and all material contracts, agreements and leases of CCC and the preservation of CCC's IP Rights and other assets and properties and for AAA to consummate the transactions contemplated hereby, in form and substance reasonably satisfactory to AAA, except for such thereof as the failure to so obtain would not have a Material Adverse Effect, or that AAA and CCC shall have agreed in writing need not be obtained.
9.7 No Litigation. No litigation or proceeding (other than any litigation or proceeding initiated by AAA, its Board of
Directors, its shareholders, or its officers) shall be pending which could be reasonably expected to have a Material Adverse Effect on the present or future operations or financial condition of CCC.
9.8 Non Competition Agreement. AAA shall have received from the CCC Shareholder, a fully executed copy of a Non
Competition Agreement in the form of Exhibit 9.9A.
9.9 Consulting Agreement. AAA shall have received from BBB(sb), a fully executed copy of a Consulting Agreement in
the form of Exhibit 9.10.
9.10 Escrow Agreement. AAA shall have received a fully executed copy of the Escrow Agreement in the form of Exhibit
2.4 executed by the Escrow Agent, the Representative and the CCC Shareholder.
9.11 Appointment of New Directors and Officers. The directors and officers of CCC and each of the CCC Subsidiaries in
office immediately prior to the Closing of the Exchange shall have resigned effective as of the Closing, unless otherwise directed by AAA, and designees of AAA shall have been named as the sole directors and officers of CCC and each of the CCC Subsidiaries prior to Closing, subject to any requirements of applicable local law.
9.12 No Material Adverse Change. There shall not have been any material adverse change in the financial condition,
properties, assets, liabilities, business, results of operations or operations of CCC and the CCC Subsidiaries, taken as a whole, that would constitute a Material Adverse Effect.
9.13 Surrender of Names. The corporate name \\
assigned, released and surrendered to CCC by Each of the entities listed on Exhibit 9.16 hereto and each of such entities shall have commenced all necessary proceedings to obtain regulatory approval to change its name to a name that does not include \
9.14 Delivery of Interim Financials. CCC shall have delivered the Interim Financials to AAA.
9.15 Satisfactory Form of Legal and Accounting Matters. The form, scope and substance of all legal and accounting
matters contemplated hereby and all closing documents and other papers delivered hereunder shall be reasonably acceptable to AAA's counsel and independent public accountants.
9.16 Real Property Purchase Agreement. CCC and the CCC Shareholder shall have executed the real property sale
agreement identified in Section 5.18 which shall transfer the Real Property as soon as is practicable after the Closing Date.
10. TERMINATION OF AGREEMENT
10.1 Prior to or at the Closing.
10.1.1 This Agreement may be terminated at any time prior to or at the Closing by the mutual written consent of
AAA and the CCC Shareholder.
10.1.2 This Agreement may be terminated after the Termination Date by AAA if the conditions precedent set forth
in Section 9 shall have not been complied with, waived or performed and such noncompliance or nonperformance shall not have been cured or eliminated (or by its nature cannot be cured or eliminated) by CCC and/or the CCC Shareholder on or before Midnight, Pacific Time on _________,_________,_________(M/D/Y)(the \
10.1.3 This Agreement may be terminated after the Termination Date by the CCC Shareholder if the conditions
precedent set forth in Section 8 shall have not been complied with, waived or performed and such noncompliance or nonperformance shall not have been cured or eliminated (or by its nature cannot be cured or eliminated) by AAA on or before the Termination Date.
10.1.4 AAA may terminate this Agreement at any time prior to or at the Closing if any of the representations and
warranties of the CCC Shareholder in Section 3 of this Agreement were incorrect, untrue or false in any material respect as of the Agreement Date or are incorrect, untrue or false in any material respect as of the proposed Closing Date or the CCC Shareholder has breached any of his respective covenants under Section 5 of this Agreement, but in any case, only to the extent that such
incorrectness, untruth, falsity or breach shall cause the condition contained in Section 9.1 and/or 9.2 hereof to have failed, and the CCC Shareholder has not cured such breach prior to the earlier of (i) the Closing, (ii) thirty (3 0) days after AAA has given the CCC Shareholder written notice of its intention to terminate this Agreement pursuant to this subsection or (iii) the Termination Date.
10.1.5 The CCC Shareholder may terminate this Agreement at any time prior to or at the Closing if any of the
representations and warranties of AAA in Section 4 of this Agreement were incorrect, untrue or false in any material respect as of the Agreement Date or are incorrect, untrue or false in any material respect as of the proposed Closing Date or AAA has breached any of its covenants under Section 6 of this Agreement, and AAA has not cured such breach prior to the earlier of (i) the Closing, (ii) thirty (30) days after the CCC Shareholder has given AAA written notice of his intention to terminate this Agreement pursuant to this subsection or (iii) the Termination Date. Notwithstanding the foregoing, the CCC Shareholder may terminate this Agreement at any time prior to or at the Closing if AAA shall have breached its covenant contained in Section 6.8 hereof.
Any termination of this Agreement under this Section 10 will be effective by the delivery of notice of the terminating party to the other parties hereto.
10.2 No Liability for Proper Termination. Any termination of this Agreement in accordance with this Section 10 will be
without further obligation or liability upon any party in favor of the other party hereto or to its stockholders, directors or officers, other than the obligations provided in the Confidentiality Agreement; provided, however, that nothing herein will limit the obligation of the CCC Shareholder and AAA for any willful breach hereof or failure to use their best efforts to cause the Exchange to be consummated, as set forth in Sections 5.9 and 6.3 hereof, respectively. In the event of the termination of this Agreement pursuant to this Section 10, this Agreement shall thereafter become void and have no effect and each party shall be responsible for its own expenses incurred in connection herewith.
11. SURVIVAL OF REPRESENTATIONS, INDEMNIFICATION AND REMEDIES, CONTINUING COVENANTS
11.1 Survival of Representations. All representations, warranties and covenants of the CCC Shareholder contained in this
Agreement will remain operative and in full force and effect, regardless of any investigation made by or on behalf of AAA, until that date (\Agreement or (ii) twelve (12) months after the Closing Date.
11.2 Agreement to Indemnify. The CCC Shareholder agrees to indemnify and hold harmless AAA and its officers,
directors, agents, Shareholder and employees, and each person, if any, who controls or may control AAA within the meaning of the 1933 Act or the 1934 Act (each hereinafter referred to individually as an \Person\causes of actions, losses, costs, damages, liabilities and expenses including, without limitation, reasonable attorneys' fees, other professionals' and experts' reasonable fees and court or arbitration costs (hereinafter collectively referred to as \racy, misrepresentation, breach of, or default in, any of the representations, warranties or covenants given or made by CCC and/or the CCC
Shareholder in this Agreement or in any certificate delivered by or on behalf of CCC pursuant hereto (if such inaccuracy, misrepresentation, breach or default existed at the Closing Date). Any claim of indemnity made by an Indemnified Person under this Section 11.2 must be asserted in a writing delivered to the Escrow Agent by no later than the Escrow Release Date.
11.3 Limitation. Notwithstanding anything herein to the contrary, in seeking indemnification for Damages under Section
11.2, the Indemnified Persons shall exercise their remedies only with respect to the Escrow Shares and any other assets deposited in escrow pursuant to the Escrow Agreement. Except for fraudulent conduct and willful misconduct and except for breaches of the representations and warranties contained in Section 3.2.1 and except as provided in Section 11.5: (i) CCC Shareholder shall not have any liability to an Indemnified Person under this Agreement except to the extent of the Escrow Shares and any other assets deposited under the Escrow Agreement and (ii) the remedies set forth in this Section 11.3 and the Escrow Agreement shall be the exclusive remedies of AAA and the other Indemnified Persons under this Agreement or in any cause of action based thereon (subject to the exceptions in the last sentence of this Section 11.3) against the CCC Shareholder for any inaccuracy, misrepresentation, breach of, or default in, any of the representations, warranties or covenants given or made by CCC or the CCC Shareholder in this Agreement or in any certificate, document or instrument delivered by or on behalf of CCC or the CCC Shareholder pursuant hereto or in any cause of action based thereon (subject to the exceptions in the last sentence of this Section 11.3). In addition, the indemnification provided for in Section 11.2 shall not apply unless and until the aggregate Damages for which one or more Indemnified Persons seeks or has sought indemnification hereunder exceeds a cumulative aggregate of Two Hundred Fifty Tho_________(PLACENAME)d Dollars ($250,000.00) (the \Shareholder shall, subject to the foregoing limitations, be liable to indemnify the Indemnified Persons for all Damages in excess of the Basket. The limitations set forth in this Section 11.3 shall not be applicable to Misconduct Damages (as defined below). As used herein, \from fraudulent conduct or willful misconduct or breach of any provisions of the Investment Representation Letter.
11.4 Notice. Promptly after AAA becomes aware of the existence of any potential claim by an Indemnified Person for
indemnity from the CCC Shareholder under Section 11.2, AAA will notify the CCC Shareholder of such potential claim in accordance with the Escrow Agreement. The CCC Shareholder shall be entitled to participate in and, to the extent the CCC Shareholder elects by written notice to AAA within 30 days after receipt by the CCC Shareholder of notice of such claim, to assume the defense of such claim at its own expense, with counsel chosen by the CCC Shareholder. Notwithstanding that the CCC Shareholder shall have elected by such written notice to assume the defense of any claim, any Indemnified Party shall have the right to participate in the investigation and defense thereof with separate counsel chosen by such Indemnified Party, but in such event the fees and expenses of such counsel shall be paid by such Indemnified Party .Failure of AAA to give such notice shall not affect any rights or remedies of an Indemnified Party hereunder with respect to indemnification for Damages except to the extent the CCC Shareholder is materially prejudiced thereby. Prior to the settlement of any claim for which AAA seeks indemnity from the CCC Shareholder, AAA will provide the CCC Shareholder with the terms of the proposed settlement and a reasonable opportunity to comment on such terms in accordance with the Escrow Agreement. Nothing in this Section is intended to preclude the Representative of the CCC Shareholder from contesting a claim for indemnification hereunder in accordance with the terms and conditions of the Escrow Agreement.
11.5 Title Indemnity. In addition to, and separate from, the foregoing agreement to indemnify set forth in Section 11.2,
the CCC Shareholder agrees, to defend and indemnify AAA and each other Indemnified Person from and
against any and all claims, demands, suits, actions, causes of actions, losses, costs, damages, liabilities and expenses including, without limitation, reasonable attorneys' fees, other professionals' and experts' reasonable fees and court or arbitration costs incurred and arising out of any failure of such CCC Shareholder to have good, valid and marketable title to any issued and outstanding shares of CCC Stock held (or asserted to have been held) by such CCC Shareholder, free and clear of all liens, claims and encumbrances, or to have the full right, capacity and authority to enter into this Agreement and consummate the Exchange and any other transactions contemplated by this Agreement, or any failure of CCC to have good, valid and marketable title to all of the issued and outstanding shares of each of the CCC Subsidiaries and any failure of the CCC Shareholder to own, of record and beneficially, 100% of the issued and outstanding shares of CCC. A CCC shareholder's liability under the indemnification provided for in this Section 11.5 shall be in addition to any liability of such CCC shareholder under Section 11.2 and shall not be subject to the limitations on the CCC Shareholder's liability set forth in Section 11.3 and shall not be limited to such CCC Shareholder's Escrow Shares.
12. MISCELLANEOUS
12.1 Governing Law/Jurisdiction. This Agreement, the AAA Ancillary Agreements (collectively the \
Agreements\overned and construed in accordance with the laws of the State of California without regard to conflicts of laws principles thereof and all questions concerning the validity and construction hereof shall be determined in accordance with the laws of the State of California Except as otherwise set forth herein, any reference to \Agreement shall mean the national and provincial laws of _________(PLACENAME).
12.2 Assignment; Binding Upon Successors and Assigns. No party hereto may assign any of its rights or obligations
hereunder without the prior written consent of the other parties hereto, except that AAA may assign its respective rights to any wholly owned subsidiary of AAA, provided that, in the event of such assignment, AAA shall remain primarily liable for the performance of its obligations hereunder. This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
12.3 Severability. If any provision of this Agreement, or the application thereof, will for any reason and to any extent be
invalid or unenforceable, the remainder of this Agreement and application of such provision to other persons or circumstances will be interpreted so as reasonably to effect the intent of the parties hereto. The parties further agree to replace such void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of the void or unenforceable provision.
12.4 Counterparts. 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 all parties reflected hereon as signatories.
12.5 Other Remedies. Except as otherwise provided herein, any and all remedies herein expressly conferred upon a party
will be deemed cumulative with and not exclusive of any other remedy conferred hereby or by law on such party, and the exercise of any one remedy will not preclude the exercise of any other.
12.6 Amendment and Waivers. Any term or provision of this Agreement may be amended prior to the Closing by the
written consent of AAA, the CCC Shareholder, and, after the Closing by AAA and the CCC Shareholder (or their successors in interest). The observance of any term, condition or provision of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively) only by a writing
百度搜索“77cn”或“免费范文网”即可找到本站免费阅读全部范文。收藏本站方便下次阅读，免费范文网，提供经典小说综合文库Exchange Agreement 债转股协议【全英文】(6)在线全文阅读。
相关推荐：