Annual Report — Form 10-K — Sect. 13 / 15(d) – SEA’34 Filing Table of Contents
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3: EX-10.54 Material Contract HTML 209K
4: EX-10.55 Material Contract HTML 68K
2: EX-10.6 Material Contract HTML 31K
5: EX-21.1 Subsidiaries List HTML 35K
6: EX-23.1 Consent of Experts or Counsel HTML 32K
7: EX-23.2 Consent of Experts or Counsel HTML 32K
8: EX-31.1 Certification -- §302 - SOA'02 HTML 36K
9: EX-31.2 Certification -- §302 - SOA'02 HTML 36K
10: EX-32.1 Certification -- §906 - SOA'02 HTML 32K
11: EX-32.2 Certification -- §906 - SOA'02 HTML 32K
18: R1 Document and Entity Information HTML 60K
19: R2 Consolidated Balance Sheets HTML 125K
20: R3 Consolidated Balance Sheets (Parenthetical) HTML 60K
21: R4 Consolidated Statements of Operations and HTML 117K
Comprehensive Operations
22: R5 Consolidated Statements of Stockholders' Equity HTML 139K
23: R6 Consolidated Statements of Cash Flows HTML 153K
24: R7 Summary of Significant Accounting Policies and HTML 141K
Nature of Operations
25: R8 Short-term investments HTML 50K
26: R9 Fair Value Measurements HTML 79K
27: R10 Property and Equipment, Net HTML 65K
28: R11 Intangible Assets, Net HTML 73K
29: R12 Borrowings HTML 54K
30: R13 Stockholders' Equity and Share-Based Compensation HTML 239K
31: R14 Net Income (Loss) Per Share HTML 73K
32: R15 Income Taxes HTML 134K
33: R16 Commitments and Contingencies HTML 69K
34: R17 Employee Retirement Plan and Deferred Compensation HTML 43K
Plan
35: R18 Restructuring Costs HTML 42K
36: R19 Related-Party Transactions HTML 39K
37: R20 Quarterly Information (Unaudited) HTML 106K
38: R21 Segment Information HTML 105K
39: R22 AutoMD HTML 37K
40: R23 Summary of Significant Accounting Policies and HTML 177K
Nature of Operations (Policies)
41: R24 Summary of Significant Accounting Policies and HTML 71K
Nature of Operations (Tables)
42: R25 Short-term investments (Tables) HTML 49K
43: R26 Fair Value Measurements (Tables) HTML 70K
44: R27 Property and Equipment, Net (Tables) HTML 58K
45: R28 Intangible Assets, Net (Tables) HTML 71K
46: R29 Borrowings (Tables) HTML 55K
47: R30 Stockholders' Equity and Share-Based Compensation HTML 192K
(Tables)
48: R31 Net Income (Loss) Per Share (Tables) HTML 74K
49: R32 Income Taxes (Tables) HTML 132K
50: R33 Commitments and Contingencies (Tables) HTML 63K
51: R34 Restructuring Costs (Tables) HTML 38K
52: R35 Quarterly Information (Unaudited) (Tables) HTML 106K
53: R36 Segment Information (Tables) HTML 100K
54: R37 Summary of Significant Accounting Policies and HTML 50K
Nature of Operations - Principles of Consolidation
(Details)
55: R38 Summary of Significant Accounting Policies and HTML 129K
Nature of Operations - Additional Information
(Detail)
56: R39 Summary of Significant Accounting Policies and HTML 44K
Nature of Operations - Allowance for Sales Returns
and Allowance for Doubtful Accounts (Detail)
57: R40 Summary of Significant Accounting Policies and HTML 41K
Nature of Operations - Aggregate Warranty
Liabilities (Detail)
58: R41 Short-term investments - Securities and HTML 40K
Investments, Recorded at Fair Value (Detail)
59: R42 Short-term investments - Additional Information HTML 33K
(Detail)
60: R43 Fair Value Measurements - Financial Assets Valued HTML 54K
on Recurring Basis (Detail)
61: R44 Fair Value Measurements - Additional Information HTML 39K
(Detail)
62: R45 Property and Equipment, Net - Additional HTML 77K
Information (Detail)
63: R46 Property and Equipment, Net - Summary of Property HTML 57K
and Equipment (Detail)
64: R47 Property and Equipment, Net - Summary of Estimated HTML 56K
Useful Lives of Property and Equipment (Detail)
65: R48 Intangible Assets, Net - Additional Information HTML 32K
(Detail)
66: R49 Intangible Assets, Net - Summary of Intangible HTML 52K
Assets (Detail)
67: R50 Intangible Assets, Net - Summary of Future HTML 47K
Estimated Annual Amortization Expense (Detail)
68: R51 Borrowings - Additional Information (Detail) HTML 76K
69: R52 Borrowings - Present Value of Net Minimum Payments HTML 43K
on Capital Leases (Detail)
70: R53 Stockholders' Equity and Share-Based Compensation HTML 47K
- Schedule of Changes in Company's Ownership
Interest in AutoMD (Details)
71: R54 Stockholders' Equity and Share-Based Compensation HTML 57K
- Common Stock (Detail)
72: R55 Stockholders' Equity and Share-Based Compensation HTML 43K
- Treasury Stock (Details)
73: R56 Stockholders' Equity and Share-Based Compensation HTML 78K
- Series A Convertible Preferred Stock (Details)
74: R57 Stockholders' Equity and Share-Based Compensation HTML 88K
- Share-Based Compensation Plan Information
(Details)
75: R58 Stockholders' Equity and Share-Based Compensation HTML 87K
- Summary of Stock Option Activity (Detail)
76: R59 Stockholders' Equity and Share-Based Compensation HTML 102K
- Summary of Stock Option Activity for AutoMD
(Details)
77: R60 Stockholders' Equity and Share-Based Compensation HTML 77K
- Restricted Stock Units (Details)
78: R61 Stockholders' Equity and Share-Based Compensation HTML 76K
- Stock Option Exchange Program (Details)
79: R62 Stockholders' Equity and Share-Based Compensation HTML 50K
- Summary of Assumptions Used for Fair Value of
Surrendered Stock Options and New Stock Options
(Detail)
80: R63 Stockholders' Equity and Share-Based Compensation HTML 58K
- Warrants (Details)
81: R64 Stockholders' Equity and Share-Based Compensation HTML 48K
- Summary of Assumptions Used for Fair Value of
Option Grant (Detail)
82: R65 Stockholders' Equity and Share-Based Compensation HTML 43K
- Summary of Share-based Compensation from
Options, Warrants and Stock Awards (Details)
83: R66 Stockholders' Equity and Share-Based Compensation HTML 41K
- Additional Information (Details)
84: R67 Net Income (Loss) Per Share - Computation of Basic HTML 62K
and Diluted Net Loss Per Share (Detail)
85: R68 Net Income (Loss) Per Share - Anti-Dilutive HTML 44K
Securities Excluded from Calculation of Diluted
Earnings Per Share (Detail)
86: R69 Income Taxes - Additional Information (Detail) HTML 71K
87: R70 Income Taxes - Components of Loss Before Income HTML 42K
Tax Provision (Detail)
88: R71 Income Taxes - Summary of Income Tax (Benefit) HTML 64K
Provision (Detail)
89: R72 Income Taxes - Summary of Differences Between HTML 55K
Income Tax Provision (Benefit) and Applied Federal
Statutory Rate (Detail)
90: R73 Income Taxes - Summary of Deferred Tax Assets and HTML 77K
Deferred Tax Liabilities (Detail)
91: R74 Income Taxes - Summary of State NOL Carryforwards HTML 45K
Expiration Year (Detail)
92: R75 Commitments and Contingencies - Additional HTML 86K
Information (Detail)
93: R76 Commitments and Contingencies - Summary of Minimum HTML 47K
Lease Commitments under Non-Cancelable Operating
Leases (Detail)
94: R77 Commitments and Contingencies - Summary of Capital HTML 77K
Lease Commitments (Detail)
95: R78 Employee Retirement Plan and Deferred Compensation HTML 73K
Plan - Additional Information (Detail)
96: R79 Restructuring Costs (Detail) HTML 58K
97: R80 Restructuring Costs - Summary of Restructuring HTML 44K
Charges (Details)
98: R81 Related-Party Transactions - Additional HTML 58K
Information (Detail)
99: R82 Quarterly Information (Unaudited) - Consolidated HTML 70K
Statement of Income Data (Details)
100: R83 Segment Information - Additional Information HTML 32K
(Details)
101: R84 Segment Information - Summary of Segment HTML 65K
Information (Details)
102: R85 Segment Information - Summary of Segment HTML 52K
Percentages (Details)
103: R86 AutoMD (Details) HTML 54K
105: XML IDEA XML File -- Filing Summary XML 190K
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This Dissolution Agreement (this “Agreement”) is entered into as of March 6, 2017 (the “Effective Date”), by and between AutoMD, Inc., a Delaware corporation (“AutoMD”), with an address of 16941 Keegan Avenue, Carson, California90746, Oak Investment Partners XI, Limited Partnership
(“Oak”), with an address of 525 University Avenue, Suite 1300, Palo Alto, CA94301, and Sol Khazani Living Trust (the “Khazani Trust” and together with USAP and Oak, the “AutoMD Stockholders”), with an address of 578 Washington Blvd., #854, Marina Del Rey, CA90292. AutoMD
and the AutoMD Stockholders shall together be referred to herein as the “Parties”, and each may be referred to herein as a “Party”.
WHEREAS, the Board of Directors of AutoMD and the AutoMD Stockholders have evaluated various business and strategic options with respect to AutoMD, and following such evaluation, have determined that it is in the best interests of the AutoMD Stockholders to dissolve AutoMD.
WHEREAS, Oak and the Khazani Trust (the together, the “Sellers”) would have certain preferential stockholder rights upon a dissolution of the Company as set forth under the AutoMD Financing Documents (as defined below), and in consideration of the Redemptions (as
defined below), the Parties agree to terminate the AutoMD Financing Documents pursuant to the terms of this Agreement.
WHEREAS, prior to a dissolution of AutoMD, the Board of Directors of AutoMD and the AutoMD Stockholders deem it to be in the best interests of AutoMD to effect a redemption of the 1,500,000 shares of AutoMD common stock owned by Oak (the “Oak Shares”) and the 500,000 shares o AutoMD common stock owned by the Khazani Trust (the “Khazani Trust Shares, and together with the Oak Shares, the “Shares”) and to settle and compromise fully and finally any and all disputes, controversies, entitlements, and claims that the Sellers may have against AutoMD and its parent company, U.S. Auto Parts Network, Inc. (“USAP”), and their respective
directors and officers, on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the promises, covenants, and agreements contained herein, the Parties agree as follows:
1. Redemption.
1.1 Redemptions. Subject to the terms and conditions set forth in this Agreement, the Sellers agree to sell to AutoMD, and AutoMD agrees to purchase and redeem from the Sellers all of their respective shares (the “Shares”) of AutoMD common stock (the “Redemptions”):
1.2 Closing.
(a) The closing of the Redemptions (the “Closing”)
shall be effective as of the Effective Date.
(b) At Closing, each Seller shall deliver to AutoMD their respective share certificate evidencing the Shares, together with a stock power executed in blank; and
(c) At Closing, AutoMD shall deliver to Oak the sum of $895,500 by wire transfer of immediately available funds to an account or accounts designated by Oak.
(d) At Closing, AutoMD shall deliver to the Khazani Trust the sum of $298,500 by wire transfer of immediately available funds to an account or accounts designated by the Khazani Trust.
1.3 Termination of Obligations under Existing Agreements. From and after the Closing, except as otherwise set forth in this Agreement or any agreement, instrument, or document executed in connection herewith or
delivered at Closing, all of the Parties’ obligations (whether accrued or contingent) to each other under all agreements between each Seller, on the one hand, and USAP and/or AutoMD, on the other hand, shall cease and be of no further force and effect and such agreements shall be deemed terminated and of no further force or effect, including without limitation, the following agreements and the Parties’ obligations thereunder: (a) the Investor Rights Agreement, dated October 8, 2014, by and among AutoMD and the investors named therein, (b) the Voting Agreement, dated October 8, 2014, by and among AutoMD and the investors named therein, (c) the Right of First Refusal Agreement and Co-Sale Agreement, dated October 8, 2014, by and among
AutoMD and the investors named therein, and (d) the Common Stock Purchase Agreement, dated October 8, 2014, by and among AutoMD and the investors named therein (collectively, the “AutoMD Financing Documents”).
2. Release.
2.1 Seller Release.
(a) Each Seller hereby acknowledges that, in consideration for its respective Redemption and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, from and after the Closing, such Seller, on behalf of itself and its
respective subsidiaries, parents, affiliates, agents, legal representatives, predecessors, succesors and assigns (collectively, the “Other Releasing Parties”) hereby fully, finally, and completely releases each of AutoMD, USAP and their respective subsidiaries, affiliates, stockholders, officers, directors, employees, agents, attorneys, representatives and representatives of each of them (the “Released Parties”), of and from any and all claims, actions, demands, and/or causes of action, of whatever kind or character, whether now known or unknown, arising from, relating to, or in any way connected with such Seller’s investment in AutoMD, Seller’s rights as a stockholder of AutoMD, Seller’s rights
under the AutoMD Financing Documents, and/or any other facts or events occurring on or before the Closing; provided, however, that such Seller is not releasing any claims for (a) breach of any representation, warranty, covenant or agreement of this Agreement or any agreement, instrument, or document executed or delivered in connection with the Closing by any Released Parties, or (b) any director indemnification obligations owed by any Released Party pursuant to AutoMD’s or USAP’s certificate of incorporation or bylaws or any director indemnification agreement. Each Seller, on behalf of itself and the Other Releasing Parties, agree that this Agreement includes a release of any negligence claims, contractual claims for breach or default, and any claims for any alleged breach of fiduciary duties
owed by AutoMD, USAP, or any of the other Released Parties in any capacity, and any related attorneys’ fees and costs, if any, that such Seller or any of the Other Releasing Parties may have against AutoMD, USAP, or any of the other Released Parties. Each Seller, on behalf of itself and the Other Releasing Parties, waives and releases the Released Parties from each and every claim that this Agreement was procured by fraud or signed under duress or coercion so as to make this release not binding. Each Seller, on behalf of itself and the Other Releasing Parties, understands and agrees that by signing this Agreement it is giving up the right to pursue legal claims that it may have against any of the Released Parties.
(b) The release set forth in this Section 2.1 is intended as a release of all claims against the Released Parties, whether now known or unknown. In furtherance thereof, each Seller, on behalf of itself and the
Other Releasing Parties, expressly waives any right or claim of right to assert hereafter that any claim, demand, obligation and/or cause of action has, through ignorance, oversight, error or otherwise, been omitted from the terms of this Agreement. Each Seller, on behalf of itself and the Other Releasing Parties, make this waiver with full knowledge of its rights, after consulting with legal counsel, and with specific intent to release both their known and unknown claims.
(c) Each Seller hereby represents and warrants that neither it nor any Other Releasing Party has assigned or otherwise transferred to any other person or entity any interest in any claim, action, demand and/or cause of action it has, or may have, or may claim to have in connection with the matters released hereby and/or the persons and entities released herein, and hereby agrees to indemnify and hold harmless the Released Parties from any and all injuries,
harm, damages, penalties, costs, losses, expenses and/or liability or other detriment including all reasonable attorneys’ fees incurred as a result of any and all claims, actions, demands, and/or causes of action of whatever nature or character that may hereafter be asserted against any of the Released Parties by any person or entity claiming by, through or under such Seller or any Other Releasing Party by virtue of such an assignment or other transfer.
(d) In furtherance of such Seller’s intent to waive and release any and all claims against the Released Parties, on behalf of itself and the Other Releasing Parties, whether or not now known to such Seller, each Seller also expressly waives and releases, on behalf of itself and the Other Releasing Parties, any and all rights and benefits under Section 1542 of the Civil Code of the State of California,
which reads as follows:
A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him, must have materially affected his settlement with the debtor.
Each Seller, on behalf of itself and the Other Releasing Parties, acknowledge that it understands that this provision means that, if it later discover facts different from, or facts in addition to, those facts currently known by them, or believed by them to be true, the waivers and releases of this Agreement will remain effective in all respects-despite such different or additional facts and such Seller’s or any Other Releasing Party’s later discovery of such facts, and even if they would not have agreed to these waivers and releases if they had prior knowledge of such facts.
3. Representations
and Warranties of Seller. Each Seller represents and warrants to AutoMD as follows:
3.1 Ownership. Such Seller owns the Shares beneficially and of record free and clear of all liens, claims, encumbrances, proxies and restrictions of any kind or nature whatsoever and will convey to AutoMD valid and marketable title to its respective Shares. There are no outstanding options, warrants, subscriptions or other rights or obligations to purchase or acquire any of its respective Shares issued, created or otherwise made effective by such Seller, nor any outstanding securities convertible into or exchangeable for any of its respective Shares issued, created or otherwise made effective by such Seller.
3.2 Authority.
Upon the execution and delivery by such Seller of this Agreement and the other agreements contemplated hereby, this Agreement and the other agreements contemplated hereby will constitute the legal, valid, and binding obligations of such Seller. Such Seller has the right, power, and authority to execute and deliver this Agreement and to perform its obligations under this Agreement and the other agreements contemplated hereby. Such Seller is not, nor will it be, required to obtain any consent from any person in connection with the execution and delivery of this Agreement and the other agreements contemplated hereby, the consummation or performance of any of the transactions contemplated hereby or thereby, or the sale and delivery of its respective Shares (other than consents obtained prior to, and in full force and effect as of, the Effective Date).
3.3 Investment Representations.
(a)
Such Seller is capable of evaluating and bearing the risks and merits of selling its respective Shares for the respective redemption price set forth above and pursuant to the terms of this Agreement.
(b) Such Seller has had, during the course of this transaction and prior hereto, the opportunity to ask questions of, and receive answers from, AutoMD and its management concerning AutoMD, its operations and prospects, and the terms and conditions of this Agreement.
(c) Such Seller believes that it has received all such information as it considers necessary for evaluating the risks and merits of selling the Shares for the redemption price and pursuant to the terms of this Agreement and for verifying the accuracy of any information furnished to it or to which it had access.
(d) Neither AutoMD, nor USAP, nor any of the other Released Parties has
made any representations or warranties, express or implied, regarding AutoMD, its management, operations and prospects, the value of the Shares or otherwise regarding any aspect of the transaction except as set forth in Section 4 of this Agreement, and such Seller is not relying on any such representation or warranty not contained in Section 4 of this Agreement, and shall have no claim or right against either AutoMD or USAP or any of their respective Released Parties with respect to any information, documents or materials furnished by either AutoMD or USAP or any of their respective Released Parties to such Seller or any of its respective affiliates, employees, attorneys, advisors or representatives in any data room, presentation, interview or in any other form or manner relating to the transactions contemplated hereby.
3.4 Acceptance of Risk. Each Seller, on behalf of itself
and the Other Releasing Parties, is entering into this Agreement freely and understand and expressly accept and assume the economic and market risk associated with such Seller selling its respective Shares for the respective redemption price set forth above (including that such redemption price may be less than the fair market value of the Shares or less than the price that the Shares might have been sold for in an alternative transaction), agree that this Agreement shall be in all respects effective and not subject to termination or rescission under any circumstances, and agree, on behalf of themselves and the other Releasing Parties, that they shall have no claim or right against AutoMD, USAP or any of the other Released Parties based on such redemption price being less than the fair market value of the Shares or less then the price that the Shares might have been sold for in an alternative transaction.
3.5 Tax
Consequences. Each Seller acknowledges that AutoMD is making no representation or warranty as to the tax consequences for such Seller in selling its respective Shares for the respective redemption price pursuant to this Agreement. Each Seller further acknowledges that it has had an opportunity to seek independent counsel and advisors with respect to tax and other matters relating to this Agreement, that it shall bear the full tax consequences, if any, of selling its respective Shares for the redemption price set forth above and pursuant to the terms of this Agreement in all circumstances.
3.6 Indemnification Covenant. Each Seller is aware that AutoMD is relying upon the truth of the foregoing representations, warranties and covenants in this Section 3 in connection with entering into this Agreement and the
transactions contemplated by this Agreement. Each Seller shall indemnify, protect, defend and hold free and harmless AutoMD and USAP from and against all losses resulting from the defense, settlement or compromise of a claim or demand or assessment incurred by them as a result of any breach by such Seller of any of its representations, warranties or covenants contained in this Agreement.
4. Representations and Warranties of the Company. AutoMD represents and warrants to Seller as follows:
4.1 Capital Structure.
AutoMD’s authorized capital stock (immediately prior to Closing) is 23,450,000 shares of common stock, of which 16,500,000 shares are currently issued and outstanding. In addition, there are 1,405,000 options to purchase shares of common stock outstanding. The 16,500,000 outstanding shares of common stock together with the 1,405,000 options represent all of the outstanding equity interests in AutoMD. There are no outstanding or authorized options, warrants, purchase rights, subscription rights, conversion rights, exchange rights or other contracts or commitments that require AutoMD to issue, sell or otherwise cause to become outstanding any of its capital stock, other than those set forth in the AutoMD Financing Documents. There are no outstanding stock appreciation, phantom stock or similar rights with respect to AutoMD. AutoMD has no obligation of any kind to issue any
additional equity interests in AutoMD to any person.
4.2 Authority. Upon the execution and delivery by AutoMD of this Agreement and the other agreements contemplated hereby, this Agreement and the other agreements contemplated hereby will constitute the legal, valid, and binding obligations of AutoMD. AutoMD has the right, power, and authority to execute and deliver this Agreement and the other agreements contemplated hereby and to perform its obligations under this Agreement and the other agreements contemplated hereby. Other than consents obtained prior to, and in full force and effect as of, the Effective Date, AutoMD is not, nor will be, required to obtain any consent from any person in connection with the execution and delivery of this Agreement and the other agreements contemplated hereby, the consummation or performance of any of the transactions contemplated hereby or
thereby, or the Redemptions.
5. Choice of Law. This Agreement shall be governed by and construed under the laws of the State of Delaware in all respects as such laws are applied to agreements among Delaware residents entered into and performed entirely within Delaware, without giving effect to conflict of law principles thereof. The parties agree that any action brought by any Party under or in relation to this Agreement, including without limitation to interpret or enforce any provision of this Agreement, shall be brought in, and each Party agrees to and does hereby submit to the jurisdiction and venue of, any state or federal court located in the State of Delaware.
6. Terms Confidential. The Parties shall keep the terms, amounts and facts of this Agreement completely confidential to avoid
disclosure hereafter of any information concerning this Agreement to anyone except their respective attorneys, accountants, or other professional advisors. Notwithstanding the foregoing prohibition, (a) the Parties shall not be prohibited from disclosing the terms, amounts and facts of this Agreement or this Agreement itself as may be requested by governmental entities or as may be required by law, including any Federal or state securities laws or regulations, (b) AutoMD shall not be prohibited from disclosing the terms, amounts and facts of this Agreement or this Agreement itself as may be requested by any person or entity with whom AutoMD is engaged in discussions with concerning any investment in AutoMD or any financing, recapitalization, reorganization, or sale of the capital stock of AutoMD (or any rights thereto) or all or substantially all of the assets of AutoMD and (c) USAP shall not be prohibited from disclosing the terms, amounts and facts of this Agreement
or this Agreement itself as may be requested by any person or entity with whom USAP is engaged in discussions with concerning any investment in USAP or any financing, recapitalization, reorganization, or sale of the capital stock of AutoMD (or any rights thereto) or all or substantially all of the assets of USAP.
7. Entire Agreement. This Agreement, and the other agreements, instruments, or documents executed in connection herewith or delivered at Closing, constitute the entire agreement among the parties with respect to the subject matter hereof and thereof, and supersede any other agreement with respect hereto and thereto, and there are no other or continuing agreements or understandings between each Seller, on one hand, and AutoMD and/or USAP, on the other hand, except as expressly recited herein or therein.
8. Execution
in Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall constitute an original, but such counterparts together shall constitute but one and the same Agreement. The exchange of copies of this Agreement and of signature pages by facsimile transmission or PDF shall constitute effective execution and delivery of this Agreement as to the Parties and may be used in lieu of the original Agreement for all purposes. Signatures of the Parties transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
9. Legal Advice. Each Party hereto acknowledges that such Party has had the advice of independent counsel selected by such Party in connection with the terms of this Agreement and the other agreements executed in connection herewith, and that no offer, promise,
inducement or consideration of any kind or degree, except as expressly stated in this Agreement, has been provided or promised to such Party by any other Party or person in connection with such Party’s entry into this Agreement and the other agreements executed in connection herewith.
10. Severability. Should any provision of this Agreement be declared and/or be determined by any court to be illegal or invalid, the validity of the remaining parts, terms or provisions shall not be affected thereby.
11. Expenses. Except as otherwise provided in this Agreement, each Party to this Agreement will bear its respective fees and expenses incurred in connection with the preparation, negotiation, execution and performance of this Agreement and the transactions
contemplated
by this Agreement, including all fees and expenses of its agents and representatives. If any Party hereto institutes a proceeding to enforce such Party’s rights in accordance with the provisions of this Agreement, the prevailing Party shall be entitled to recover its reasonable expenses, including attorneys’ fees, in connection with any such action.
12. Further Assurances. At any time and from time to time, upon the reasonable request of a Party hereto, each other Party hereto shall promptly execute and deliver all such further agreements, documents, and instruments and take such further action as may be necessary or appropriate to carry out the provisions and purposes of this Agreement or any other agreement executed in connection herewith.
13. Miscellaneous. This Agreement shall be binding
upon, and inure to the benefit of the Parties hereto and their respective heirs, successors and assigns. A modification or waiver of any of the provisions of this Agreement shall be effective only if made in writing and signed by each of the Parties hereto. The failure of any Party to insist upon the strict performance of any of the provisions of this Agreement shall not be construed as a waiver of any subsequent default of the same or any other provision.
14. Notices. Any notices required to be given pursuant to the provisions hereof shall be given in writing to the parties below by certified mail, return receipt requested, as follows:
15. Third
Party Beneficiary. For avoidance of doubt, USAP and the other Released Parties are third party beneficiaries under this Agreement and shall be entitled to the rights and benefits hereunder and may enforce the provisions hereof as if they were parties hereto.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed and entered into as of the day and year first above written.
