AGREEMENT FOR PURCHASE OF 7.5 SHARES
AGREEMENT FOR PURCHASE OF 7.5 SHARES ("Agreement"), dated as of June 8,
2004, by and between Audiovox Corporation, a Delaware corporation ("Purchaser"),
and Toshiba Corporation, a Japanese corporation ("Seller" and together with
Purchaser, the "Parties" and each individually a "Party").
WHEREAS, Purchaser desires to purchase, and Seller desires to sell, seven
and one-half (7.5) shares (the "Shares") of Class B Common Stock of Audiovox
Communications Corp., a Delaware corporation, on the terms set forth herein.
NOW, THEREFORE, the Parties agree as follows:
1. Sale of Shares. Seller shall sell and transfer the Shares to Purchaser,
and Purchaser shall purchase the Shares from Seller, on the terms set forth
herein.
2. Purchase Price. The aggregate purchase price for the Shares shall be
U.S.$1,410,000 (the "Purchase Price").
3. Representations and Warranties.
Each Party hereby represents and warrants to the other Party as follows:
3.1 Organization and Related Matters. Such Party is a corporation duly
incorporated and validly existing under the laws of its jurisdiction of
incorporation.
3.2 Authority; Enforceability; Effect of Agreement. Such Party has all
necessary organizational power and authority to execute, deliver and
perform this Agreement. This Agreement has been duly authorized by all
necessary corporate action of such Party, and has been duly executed and
delivered by such Party. Assuming the due authorization, execution and
delivery by the other Party, this Agreement constitutes a valid and legally
binding obligation of such Party, enforceable against such Party in
accordance with its terms.
3.3 No Conflicts.
(a)The execution and delivery by such Party of this Agreement
does not, and the performance by such Party of its obligations
hereunder will not, conflict with or result in any violation of or
default (with or without notice or lapse of time or both) under (i)
the organizational documents of such Party, (ii) any agreement to
which such Party is a party or is otherwise bound, or (iii) any law,
regulation or order of any governmental authority to which such Party
is subject.
(b)The execution and delivery of this Agreement by such Party,
the performance of its obligations hereunder and the consummation of
the transactions contemplated hereby will not require the approval or
consent of any third party, including any governmental authority.
4. Ownership of Shares. Seller hereby represents and warrants to Purchaser
that Seller is the record and beneficial holder of the Shares and will transfer
Exhibit 99.6
and deliver to Purchaser at the Closing valid title to the Shares, free and
clear of any lien, encumbrance, pledge, interests of third parties or other
claims.
5. General Provisions. The provisions contained in Attachment 1 hereto are
hereby incorporated by reference herein as an integral part of this Agreement.
Exhibit 99.6
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IN WITNESS WHEREOF, the Parties have caused this Agreement for Purchase of
7.5 Shares to be executed as of the date first written above.
TOSHIBA CORPORATION,
a Japanese corporation, acting through its
Mobile Communications Company
By: /s/ Chikahiro Yokata
Name: Chikahiro Yokata
Title: President and CEO, Mobile
Communications Company
AUDIOVOX CORPORATION,
a Delaware corporation
By: /s/ John J. Shalam
Name: John J. Shalam
Title: Chief Executive Officer
Exhibit 99.6
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Attachment I
General Provisions
1. Governing Law. This Agreement shall be construed and interpreted in
accordance with and governed by the laws of the State of New York, U.S.A.,
including, without limitation, Section 5- 1401 of the General Obligations Law of
the State of New York (without regard to the choice of law provisions thereof).
Judgment upon an award rendered by the arbitrators pursuant to Section 2 of this
Attachment 1 shall be entered in the courts of the State of New York, and the
Parties hereby submit to the exclusive jurisdiction of such courts for the
purpose of any such entry. The Parties agree and consent that services of
process may be made upon the Parties in any legal proceedings relating hereto by
any means allowed under applicable law.
2. Dispute Resolution.
(a) The Parties intend that all disputes between the Parties arising out of
this Agreement that do not involve claims by or against third parties shall be
settled by the Parties amicably through good faith discussions upon the written
request of either Seller or Purchaser. In the event that any such dispute cannot
be resolved thereby within a period of sixty (60) calendar days after such
notice has been given, such dispute shall be finally settled by binding
arbitration at the request of either Party.
(b) Each arbitration hereunder shall be conducted in the English language
in New York, New York, and shall be administered by the American Arbitration
Association under its Commercial Arbitration Rules then in effect, before three
(3) independent arbitrators to be appointed as follows. Each Party shall appoint
one (1) arbitrator, and the two (2) arbitrators so appointed shall appoint a
third arbitrator in accordance with paragraph (c) of AAA Rule R-15 (Appointment
of Neutral Arbitrator by Party-Appointed Arbitrators or Parties) currently in
effect. However, in all events, these arbitration provisions shall govern over
any conflicting rules which may now or hereafter be contained in the applicable
rules.
(c) Each Party may demand arbitration by filing a written demand with the
other Party within one hundred eighty (180) calendar days after the expiration
of the sixty (60) day period described above. The arbitrators shall have the
authority to grant any equitable and legal remedies that would be available in
any judicial proceeding intended to resolve a dispute, including the termination
of this Agreement. Notwithstanding the foregoing, each Party shall be entitled
to seek preliminary injunctive relief from any court of competent jurisdiction,
pending the final decision or award of the arbitrators. The award rendered in an
arbitration hereunder shall be final and non- appealable.
3. Notices and Other Communications. Any and all notices, requests, demands and
other communications required or otherwise contemplated to be made under this
Agreement shall be in writing and in English and shall be provided by one or
more of the following means and shall be deemed to have been duly given (a) if
delivered personally, when received, (b) if transmitted by facsimile, on the
first (1st) Business Day following receipt of a transmittal confirmation, or (c)
if by international courier service, on the third (3rd) Business Day following
Exhibit 99.6
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the date of deposit with such courier service, or such earlier delivery date as
may be confirmed in writing to the sender by such courier service. All such
notices, requests, demands and other communications shall be addressed as
follows:
If to Seller:
Toshiba Corporation
Mobile Communications Company
1-1, Shibaura 1-chome, Minato-ku
Tokyo 105-8001
Japan
Attention: General Manager, Business Planning Division, Mobile
Communications Company
Telephone: (81-3) 3457-2608
Facsimile: (81-3) 5444-9442
If to Purchaser:
Audiovox Corporation
150 Marcus Blvd.
P.O. Box 18000 Hauppauge, NY 11788-1800 U.S.A.
Attention: Charles M. Stoehr
Telephone: (631) 436-6505
Facsimile: (631) 231-1370
With a copy to:
Levy & Stopol, LLP
East Tower, 14th Floor
190 EAB Plaza
Uniondale, NY 11556-0190
Telephone: (516) 802-7007
Facsimile: (516) 802-7008
or to such other address or facsimile number as a Party may have specified to
the other Party in writing delivered in accordance with this Section. For the
purposes of this Section, "Business Day" shall mean a day on which commercial
banks in New York City are generally open to conduct their regular banking
business.
4. Severability. If any provisions of this Agreement shall be held to be
illegal, invalid or unenforceable, the Parties agree that such provisions will
be enforced to the maximum extent permissible so as to effect the intent of the
Parties, and the validity, legality and enforceability of the remaining
provisions of this Agreement shall not in any way be affected or impaired
thereby. If necessary to effect the intent of the Parties, the Parties will
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negotiate in good faith to amend this Agreement to replace the unenforceable
language with enforceable language which as closely as possible reflects such
intent.
5. Amendments. This Agreement may be amended or modified only by a written
instrument signed by both of the Parties.
6. Waiver. Any waiver by either Party of an instance of the other Party's
noncompliance with any obligation or responsibility herein contained shall be in
writing and signed by the waiving Party and shall not be deemed a waiver of
other instances of the other Party's noncompliance hereunder.
7. No Assignment. This Agreement shall be binding upon and inure to the benefit
of and be enforceable by the respective successors and permitted assigns of the
Parties. Nothing in this Agreement shall confer any rights upon any person or
entity other than the parties and their respective successors and permitted
assigns. Neither Party may assign this Agreement or its rights hereunder to any
person or entity without the written consent of the other Party. No assignment
by any person or entity of this Agreement or of any of such person's or entity's
rights hereunder shall release such person or entity from any of its obligations
hereunder. Any attempted assignment of this Agreement in violation of this
Section shall be void and of no effect.
8. Expenses. Each Party shall bear all out-of-pocket costs and expenses
(including, without limitation, attorney's, accountant's and financial advisor's
fees) incurred by it in connection with the negotiation and execution of this
Agreement.
9. Construction. This Agreement has been negotiated by the Parties and their
respective counsel and shall be fairly interpreted in accordance with its terms
and without any strict construction in favor of or against any Party.
10. Interpretation and Construction of this Agreement. Unless the context shall
otherwise require, any pronoun shall include the corresponding masculine,
feminine and neuter forms, and words using the singular or plural number shall
also include the plural or singular number, respectively. The words "include,"
"includes" and "including" shall be deemed to be followed by the phrase "without
limitation". The headings of the Sections in this Agreement are inserted for
convenience of reference only and are not intended to be a part of or to affect
the meaning or interpretations of this Agreement. Unless the context shall
otherwise require, any reference to any agreement or other instrument or statute
or regulation is to such agreement, instrument, statute or regulation as amended
and supplemented from time to time (and, in the case of a statute or regulation,
to any successor provision). Any reference in this Agreement to a "day" or a
number of "days" (without the explicit qualification of "Business") shall be
interpreted as a reference to a calendar day or number of calendar days. If any
action or notice is to be taken or given on or by a particular calendar day, and
such calendar day is not a Business Day, then such action or notice shall be
deferred until, or may be taken or given, on the next Business Day.
11. Disclaimer of Agency. This Agreement shall not constitute any Party as a
legal representative or agent of the other Party, nor shall a Party have the
right or authority to assume, create or incur any Liability of any kind,
expressed or implied, against or in the name or on behalf of the other Party or
any of its affiliates.
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12. Language. The Parties have negotiated this Agreement in the English
language, which shall be the governing language of this Agreement.
13. Relationship of the Parties. Nothing contained in this Agreement is intended
to, or shall be deemed to, create a partnership or joint venture relationship
between the Parties or any of their affiliates for any purpose, including tax
purposes. Neither of the Parties nor any of their respective affiliates will
take a position contrary to the foregoing.
14. Specific Performance. Each Party agrees that the other Party shall be
entitled to obtain an injunction or injunctions in accordance with the dispute
resolution procedures contained in Section 2 of this Attachment 1 to prevent
breaches of the provisions of this Agreement, or any agreement contemplated
hereunder and to enforce specifically the terms and provisions hereof, in each
instance without being required to post bond or other security, without being
required to prove irreparable harm, and in addition to, and without having to
prove the adequacy of, other remedies at law.
15. Consequential and Other Damages. Neither Party shall be liable to the other
Party under any contract, negligence, strict liability or other theory for any
indirect, incidental, consequential, punitive or other special damages
(including without limitation lost profits) asserted by the other Party.
16. Entire Agreement. The provisions of this Agreement (including this
Attachment 1) set forth the entire agreement and understanding between the
Parties as to the subject matter hereof and supersede all prior agreements, oral
or written, and all other prior communications between the Parties relating to
the subject matter hereof.
17. Counterparts. This Agreement may be executed in counterparts, each of which
shall be binding as of the date first written above, and all of which shall
constitute one and the same instrument. Each such counterpart shall be deemed an
original, and it shall not be necessary in making proof of this Agreement to
produce or account for more than one such counterpart.
Exhibit 99.6
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