BusinessCombinationAgreement商业联合条约.doc

Business Combination Agreement商业联合协议-EXHIBIT AANNEX OF DEFINED TERMS1.1 ACQUISITION AGREEMENT shall have the meaning set forth in Section 9.1(b).1.2 AFFILIATE of any person shall mean (except as otherwise specifically defined), as to any person, any other person which, directly or indirectly, controls, is controlled by, or is under common control with, such person, where control means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a person, whether through the ownership of securities or partnership or other ownership interests, by contract or otherwise.1.3 ADNs shall have the meaning set forth in Section 3.8.1.4 ADS CLOSING PRICE shall have the meaning set forth in Section2.6(a).1.5 AGREEMENT shall have the meaning set forth in the first paragraph.1.6 APB NO. 16 shall have the meaning set forth in Section2.5(f).1.7 BBB shall mean the corporate party to the Agreement identified in the first paragraph.1.8 BBB COMMON STOCK shall have the meaning set forth in Section2.4.1.9 BBB EMPLOYEE OPTIONHOLDER shall mean any person who holds a BBB Employee Stock Option.1.10 BBB EMPLOYEE STOCK OPTION shall mean an optionto purchase shares of BBB Common Stock granted pursuant to a BBB stock option plan and listed on Section 5.3(b) of BBB’s Disclosure Schedule or subsequentlygranted as permitted by Article VII(b)(2).1.11 BBB EXCHANGE shall mean the BBB Merger together with the _________(COUNTRY) Share Exchange.1.12 BBB MERGER shall mean the transaction contemplated by Section2.2.1.13 BBB MERGER CLOSING shall have the meaning set forth in Section2.9.1.14 BBB MERGER CLOSING DATE shall mean the date on which the BBB Merger Closing occurs.1.15 BBB MERGER SUB shall have the meaning set forth in Section2.1.1.16 BBB MERGER SUB BY-LAWS shall have the meaning set forth in Section2.11.1.17 BBB MERGER SUB CHARTER shall have the meaning set forth in Section2.10.1.18 BBB MERGER SUB COMMON STOCK shall have the meaning set forth in Section2.1.1.19 BBB PREFERRED STOCK shall have the meaning set forth in Section2.7.1.20 BBB RIGHTS AGREEMENT shall have the meaning set forth in Section 5.19(b).1.21 BBB STOCKHOLDER APPROV AL shall have the meaning set forth in Section 5.15(a).1.22 BBB STOCKHOLDERS MEETING shall have the meaning set forth in Section 9.2(c).1.23 BBB STOCK ISSUANCE shall have the meaning set forth in Section 9.3.1.24 CLOSING V ALUE shall have the meaning set forth in Section2.6(a).1.25 CODE shall have the meaning set forth in the sixth WHEREAS clause.1.26 COMMON SHARES TRUST shall have the meaning set forth in Section 3.10(c).1.27 COMPANY PERMITS shall have the meaning set forth in Section 5.1.1.28 CONFIDENTIAL INFORMATION shall have the meaning set forth in Section 9.6(b).1.29 COSTS shall have the meaning set forth in Section 9.8(c).1.30 CSFB shall mean Credit Suisse First Boston Corporation, financial advisor to BBB.1.31 AAA shall mean the corporate party to the Agreement identified in the first paragraph.1.32 AAA ADSs shall have the meaning set forth in Section 1.1.1.33 AAA EMPLOYEE OPTIONHOLDER shall mean any person who holds a AAA Employee Stock Option.1.34 AAA EMPLOYEE STOCK OPTION shall mean a convertible bond, nominal value DM 1,000, issued pursuant to the AAA stock option plans and listed on Section 5.3(b) of AAA’s Disclosure Schedule.1.35 AAA EXCHANGE AGENT shall have the meaning set forth in Section 1.2.1.36 AAA EXCHANGE OFFER shall mean the offer contemplated by Section 1.1.1.37 AAA EXCHANGE OFFER CONDITIONS shall have the meaning set forth in Section 1.1.1.38 AAA EXCHANGE OFFER EXPIRATION DATE shall have the meaning set forth in Section 1.1.1.39 AAA EXCHANGE OFFER RATIO shall have the meaning set forth in Section 1.1.1.40 AAA MERGER shall mean the transaction contemplated by Section 3.1.1.41 AAA MERGER CONSIDERATION shall have the meaning set forth in Section 3.3.1.42 AAA MERGER EXCHANGE RATIO shall have the meaning set forth in Section 3.3.1.43 AAA ORDINARY SHARES shall have the meaning set forth in Section 1.1.1.44 AAA STOCKHOLDER APPROV AL shall have the meaning set forth in Section 5.15(b).1.45 AAA STOCKHOLDERS MEETING shall have the meaning set forth in Section 9.2(c).1.46 DGCL shall mean the General Corporation Law of the State of _________(STATE).1.47 DISCLOSURE SCHEDULE shall mean the disclosure schedule delivered by each Representing Party to the other setting forth (organized by the number and letter of the corresponding section and paragraph in the Business Combination Agreement provided, that matters disclosed in any section of the Disclosure Schedule shall be deemed to be disclosed for all purposes of suchdisclosure schedule) the Representing Party’s exceptions to the representations and warranties of such Representing Party contained in Article V and to the covenants set forth in Article VII, and provided further that inclusion of an item in a disclosure schedule shall not be construed to mean that the item is required to be disclosed or is material.1.48 DM BES shall have the meaning set forth in Section 3.8.1.49 EFFECTIVE TIME shall have the meaning set forth in Section2.9.1.50 80% MINIMUM shall have the meaning set forth in Section 1.1.1.51 ELIGIBLE RETIREE shall have the meaning set forth in Section 8.3(c).1.52 ENCUMBRANCE shall mean any mortgage, pledge, lien, charge, encumbrance, defect, security interest, claim, option or restriction of any kind.1.53 ERISA shall mean the Employee Retirement Income Security Act of 1974, as amended.1.54 ERISA AFFILIATE shall have the meaning set forth in Section 5.11(a).1.55 EXCESS SHARES shall have the meaning set forth in Section 3.10(b).1.56 EXCHANGE ACT shall have the meaning set forth in Section 5.6(b).1.57 EXCHANGE OFFER DOCUMENTS shall have the meaning set forth in Section 1.4(b).1.58 EXECUTIVE OFFICE OF THE TAKEOVER COMMISSION shall have the meaning set forth in Section 1.1.1.59 EXERCISE PRICE shall have the meaning set forth in Section2.6(a).1.60 F-4 REGISTRATION STATEMENT shall mean the Registration Statement on Form F-4 of CCC registering Newco Ordinary Shares and Newco ADSs to be issued in the BBB Merger and the Exchange Offer.1.61 FSE shall have the meaning set forth in Section 9.11(a).1.62 FULLY DILUTED BASIS shall mean a basis that takes into account all outstanding AAA Ordinary Shares (including all outstanding AAA ADSs) and the maximum aggregate number of AAA Ordinary Shares and AAA ADSs that may be issued in respect of any warrants, options, convertible instruments or other rights pursuant to which the holder thereof may acquire AAA Ordinary Shares or AAA ADSs, regardless of whether currently exercisable or convertible. For this purpose, the number of AAA Ordinary Shares or ADSs into which the Notes (including Notes represented by ADNs and DM BESs) may be converted shall be deemed to be the higher of (i) the maximum aggregate number of AAA Ordinary Shares and AAA ADSs into which the Notes can be converted and (ii) a number of AAA Ordinary Shares equal to 120% of the marketvalue of the Notes on the AAA Exchange Offer Expiration Date divided by the per share closing price of a AAA Ordinary Share or AAA ADS, as applicable, as reported by the FSE or The Wall Street Journal, as applicable, on such date.1.63 _________(COUNTRY) EFFECTIVE TIME shall have the meaning set forth in Section 3.2.1.64 _________(COUNTRY) EXCHANGE OFFER DOCUMENTS shall have the meaning set forth in Section 1.3.1.65 _________(COUNTRY) MERGER AGREEMENT shall have the meaning set forth in Section 3.1.1.66 _________(COUNTRY) PROSPECTUS shall have the meaning set forth in Section 1.3.1.67 _________(COUNTRY) SHARE EXCHANGE shall have the meaning set forth in Section 1.1.1.68 _________(COUNTRY) STOCK CORPORATION LAW (AKTIENGESETZ) shall have the meaning set forth in Section 3.1.1.69 _________(COUNTRY) SURVIVING CORPORATION shall have the meaning set forth in Section 3.1.1.70 _________(COUNTRY) TAKEOVER CODE shall have the meaning set forth in Section 1.1.1.71 GOLDMAN SACHS shall mean Goldman, Sachs Co., financial advisor to AAA.1.72 GOVERNMENTAL ENTITY shall mean any court, tribunal or administrative, governmental or regulatory body, agency, commission, division, department, public body or other authority, whether federal, state, local or foreign.1.73 GSCL shall have the meaning set forth in Section 3.1.1.74 HSR ACT shall mean the Hart-Scott-Rodino AntitrustImprovements Act of 1976, as amended.1.75 INDEMNIFIED PARTY shall have the meaning set forth in Section 9.8(c).1.76 INITIAL PERIOD shall have the meaning set forth in Section 8.3(a).1.77 IRS shall mean the United States Internal Revenue Service.1.78 MATERIAL ADVERSE EFFECT with respect to AAA, BBB or CCC shall mean any event or state of facts that is or would reasonably be expected to be materially adverse to the business, assets, results of operations or financial condition of such Party and its Subsidiaries, taken as a whole, except for any events or states of facts relating to (i) the automotive and automotive finance industry in general, and not relating specifically to the business of BBB or AAA, as the case may be, or (ii) the economy of the United States of America, the _________(COUNTRY) or the world, in general, and not relating specifically to the business of BBB or AAA, as the case may be or in the case of CCC, CCC and its Subsidiaries immediatelyafter the Effective Time, taken as a whole.1.79 MERGERS shall mean the AAA Merger and the BBB Merger, collectively.1.80 MINIMUM CONDITION shall have the meaning set forth in Section 1.1.1.81 CCC shall mean the corporate party to the Agreement identified in the first paragraph.1.82 NEWCO ADS shall have the meaning set forth in Section 1.1.1.83 NEWCO ORDINARY SHARES shall have the meaning set forth in Section 1.1.1.84 NEWCO SATZUNG shall have the meaning set forth in Section 4.1.1.85 NOTES shall have the meaning set forth in Section 3.8.1.86 NYSE shall have the meaning set forth in Section 3.10(b).1.87 OLD BBB CERTIFICATES shall have the meaning set forth in Section2.5(b).1.88 OLD AAA ADRS shall have the meaning set forth in Section 3.4(a).1.89 OPTION SHARES shall have the meaning set forth in Section2.6(a).1.90 PBGC shall mean the Pension Benefit Guaranty Corporation.1.91 PERFORMANCE SHARES shall have the meaning set forth in Section2.6(b).1.92 PERSON shall mean an individual, corporation, partnership, association, trust, or any other entity or organization, including, without limitation, a Governmental Entity.1.93 PLANS shall have the meaning set forth in Section 5.11(a).1.94 PROXY STATEMENT/PROSPECTUS shall mean the proxy statement of BBB to be used in connection with the solicitation of proxies by BBB for the BBB Stockholders Meeting and the prospectus of CCC for the Newco ADSs being issued in connection with the transactions contemplated by the Agreement, which Proxy Statement/Prospectus forms a part of the F-4 Registration Statement.1.95 REPRESENTING PARTY shall have the meaning set forth in the first paragraph of Article V.1.96 REPRESENTING PARTY’S FILINGS shall have the meaning set forth in Section 5.6(b).1.97 REPRESENTING PARTY’S FINANCIAL STATEMENTS shall have the meaning set forth in Section 5.6(a).1.98 REPRESENTING PARTY’S PRE-AGREEMENT FILINGS shall have the meaning set forth in Section 5.6(b).1.99 RESTRAINTS shall have the meaning set forth in Section 10.1(f).1.100 RESTRICTED STOCK UNITS shall have the meaning set forth in Section2.6(d).1.101 RIGHTS shall mean the rights to purchase new AAA Ordinary Shares distributed to holders of the AAA Ordinary Shares pursuant to the Rights Offering.1.102 RIGHTS OFFERING shall have the meaning set forth in Section2.4(c).1.103 SCHEDULE 14D-1 shall have the meaning set forth in Section 1.4(a).1.104 SCHEDULE 14D-9 shall have the meaning set forth in Section 1.4(b).1.105 SEC shall have the meaning set forth in Section 1.4(a).1.106 SECURITIES ACT shall have the meaning set forth in Section 5.6(b).1.107 SIGNIFICANT SUBSIDIARY shall mean have the meaning set forth in Rule 1.02(w) of Regulation S-X promulgated by the SEC under the Exchange Act.1.108 SPECIAL DISTRIBUTION shall mean the special distribution by AAA of DM 20 per AAA Ordinary Share/AAA ADS as proposed to the Annual General Meeting of AAA stockholders to be held on _________,_________,_________(M,D,Y).1.109 STOCK EXCHANGE ADMISSION BOARD shall have the meaning set forth in Section 9.11(a).1.110 SUBSIDIARY shall mean with respect to AAA or BBB, as the case may be, any person (i) of which fifty percent or more of either the equity interests in, or the voting control of, such person is directly or indirectly beneficially owned by AAA or BBB, or (ii) AAA or BBB has the ability to elect fifty percent or more of the directors or members of the governing board of such person, and in either such case, such person is a consolidated entity in the consolidated financial statements of such Representing Party.1.111 SUPERIOR PROPOSAL shall have the meaning set forth in Section 9.1(b).1.112 SURVIVING CORPORATION COMMON STOCK shall have the meaning set forth in Section2.4(c).1.113 TAKEOVER PROPOSAL shall have the meaning set forth in Section 9.1(a).1.114 TAXES shall mean any and all taxes, duties, levies, imposts or other governmental charges of any kind (together with any and all interest, penalties, additions to tax and additional amounts imposed with respect thereto) imposed by any taxing authority, including without limitation, taxes or other charges on or with respect to income, net assets, franchises, windfall or other profits, gross receipts, property, sales, use, capital stock, payroll, employment, social security, workers’ compensation, unemployment compensation, or net worth, and taxes or other charges in the nature of excise, withholding, ad valorem or value added.1.115 TAX RETURNS shall mean any return, report or similar statement required to be filed with respect to any Taxes, including, without limitation, any information return, claim for refund, amended return or declaration of estimated Taxes.1.116 _________(COUNTRY) EXCHANGE AGENT shall have the meaning set forth in Section2.1.1.117 _________(COUNTRY) EXCHANGE FUND shall have the meaning set forth in Section2.5(a).1.118 _________(COUNTRY) EXCHANGE OFFER DOCUMENTS shall have the meaning set forth in Section 1.4(b).1.119 _________(COUNTRY) EXCHANGE RATIO shall have the meaning set forth in Section2.4(b).1.120 US GAAP shall have the meaning set forth in the eighth WHEREAS clause.1.121 _________(COUNTRY) MERGER CONSIDERATION shall have the meaning set forth in Section2.4(b).1.122 _________(COUNTRY) PERSON shall mean (i) a citizen or resident of the United States, (ii) a corporation, partnership or other entity created or organized in or under the laws of the United States or any political subdivision thereof, (iii) an estate whose income is subject to United States Federal Income taxation regardlessof its source or (iv) a trust if (a) a court within the United States is able to exercise primary supervision over the administration of the trust and (b) one or more _________(COUNTRY) Persons have the authority to control all substantial decisions of the trust.1.123 _________(COUNTRY) SHARE EXCHANGE shall have the meaning set forth in Section2.3.1.124 _________(COUNTRY) SURVIVING CORPORATION shall have the meaning set forth in Section2.2.1.125 WARRANTS shall mean the warrants issued by AAA in connection with the 4 1/8% Deutsche Mark Bearer Notes of _________(YEAR) issued by AAA Capital (Luxembourg) AG.Business Opportunities Agreement商机协议-This BUSINESS OPPORTUNITIES AGREEMENT (this Agreement ), dated as of _________,_________,_________(M,D,Y), is entered into by AAA, a _________(PLACENAME)corporation ( AAA ), BBB, Inc., a newly formed _________(PLACENAME)corporation and wholly owned CCCsidiary of AAA (the Company ), CCC, Inc., a newly formed _________(PLACENAME) corporation and a wholly owned CCCsidiary of the Company ( CCC ), and DDD, Inc., a _________(PLACENAME) corporation ( DDD ).This Agreement is being executed and delivered simultaneously with the execution and delivery of the Agreement and Plan of Merger dated _________,_________,_________(M,D,Y)(the Merger Agreement ) among AAA, the Company, CCC and DDD. Pursuant to the Merger Agreement, CCC will be merged with and into DDD, which will be the Surviving Corporation. All capitalized terms used and not defined herein (as well as the terms affiliate and person ) have the meanings attributable to them in the Merger Agreement. As a result of the Merger, AAA will own a majority of the outstanding capital stock of the Company, and the Company will own all of the outstanding capital stock of the Surviving Corporation.DDD believes that it and its stockholders will benefit from the Merger and that the Merger is in its best interest and in the best interest of its stockholders. AAA, however, is unwilling to enter into the Merger Agreement unless DDD and the Company enter into this Agreement because AAA engages in the exploration for and the development, production and marketing of natural gas and crude oilin the United States. The businesses in which AAA engages are similar to those in which DDD and its CCCsidiaries engage and in which the Company and its CCCsidiaries, including the Surviving Corporation, will engage following the Merger.As the owner of a controlling interest in the Company following the Merger, AAA may owe certain duties to the Company. Pursuant to a Stockholders Agreement entered into simultaneously with the execution and delivery of this Agreement, AAA will have the right to nominate certain persons ( Designees ) to serve on the board of directors of the Company following the Merger. Certain of the Designees may be directors of or employed by AAA or companies in which AAA has an interest, other than the Company and its CCCsidiaries. These Designees will have duties to the Company and duties to AAA or such other companies.The law relating to duties that AAA or its Designees may owe to the Company is not clear. The application of such law to particular circumstances is often difficult to predict, and if a court were to hold that AAA or one of its Designees breached any such duty AAA or such Designee could be held liable for damages in a legal action brought on behalf of the Company.In order to induce AAA to enter into the Merger Agreement, DDD and the Company are willing to enter into this Agreement in order to renounce, effective upon consummation of the Merger, any interest or expectancy either of them or their CCCsidiaries may have in the classes or categories of business opportunities specified herein that are presented to or identified by AAA or any of its Designees, as more fully described herein. As a result of this Agreement, AAA may continue to conduct its business and to pursue certain business opportunities without an obligation to offer such opportunities to the Company or any of its CCCsidiaries, and any Designee may continue to discharge his or her responsibilities as a director or employee of AAA or any company in which AAA has an interest.In consideration of the foregoing, the mutual covenants, rights, and obligations set forth in this Agreement, and the benefits to be derived herefrom, and other good and valuable consideration, the receipt and the sufficiency of which each of the parties hereto acknowledges and confesses, the parties hereto agree as follows:1. Scope of Business of the Company and its CCCsidiaries Following the Merger. The Company and DDD covenant and agree that, following consummation of the Merger, except with the consent of AAA (which it may withhold in its sole discretion), the Company and its CCCsidiaries will not engage in any business other than the EP Business and will not pursue any business opportunity that involves any direct or indirect ownership interest in any properties located outside the areas onshore shown on the map attached hereto (collectively, the Designated Areas ). The Company and DDD hereby renounce, effective upon consummation of the Merger, any interest or expectancy in any business opportunity that does not consist exclusively of the E P Business within the Designated Areas.E P Business means the oil and gas exploration, exploitation, development and production business and includes without limitation (a) the ownership of oil and gas property interests (including working interests, mineral fee interests and royalty and overriding royalty interests), (b) the ownership and operation of real and personal property used or useful in connection with exploration for Hydrocarbons, development of Hydrocarbon reserves upon discovery thereof and production of Hydrocarbons from wells located on oil and gas properties and (c) debt of or equity interests in corporations, partnerships or other entities engaged in the exploration for Hydrocarbons, the development of Hydrocarbon reserves and the production and sale of Hydrocarbons from wells located on oil and gas properties in which the entity conducting the E P Business owns an interest; but such term does not include the oilfield service business. Hydrocarbons means oil, gas or other liquid or gaseous hydrocarbons or other minerals produced from oil and gas wells. CCCsidiaries means all entities controlled, directly or indirectly, by the Company. Notwithstanding the foregoing, nothing in this Agreement shall prohibit the Company and its CCCsidiariesfrom purchasing securities of any class registered under Section 12 of the Securities Exchange Act of 1934 (regardless of the types or locations of businesses in which the issuer thereof engages) if following any such purchase the Company and its CCCsidiaries own, in the aggregate, less than 5% of such class.2. Corporate Opportunities. The Company and DDD recognize that AAA and its Designees (i) participate and will continue to participate in the E P Business, directly and through affiliates, (ii) may have interests in, participate with, and maintain seats on the boards of directors of or serve as officers or employees of other companies engaged in the E P Business and (iii) may develop business opportunities for AAA and its affiliates and such other companies. The Company and DDD recognize that AAA, its Designees and such affiliates and other companies may be engaged in E P Business in competition with the Company and/or its CCCsidiaries. The Company and DDD (a) acknowledge and agree that neither AAA, its affiliates nor its Designees nor any such company shall be restricted or proscribed by the relationship between AAA and the Company, or otherwise, from engaging in the E P Business or any other business, regardless of whether such business activity is in direct or indirect competition with the business or activities of the Company and its CCCsidiaries, on any basis other than that which is inconsistent with the standards set forth in Section 3 hereof, (b) acknowledge and agree that, as long as their activitiesare conducted in accordance with the standards set forth in Section 3 hereof, neither AAA nor any Designee or affiliate of AAA nor any such other company shall have any obligation to offer the Company or any of its CCCsidiaries any business opportunity, (c) renounce any interest or expectancy in any business opportunity pursued by AAA, any affiliate of AAA, any Designee or any such company in accordance with the standards set forth in Section 3 hereof and (d) waive any claim that any business opportunity pursued by AAA, any affiliate of AAA, any Designee or any such company constitutes a corporate opportunity of the Company or any of its CCCsidiaries that should have been presented to the Company, unless such business opportunity was pursued in violation of the standards set forth in Section 3 hereof.3. Standards for Separate Conduct of Business. AAA, any affiliate of AAA, any Designee or any other company in which AAA has an interest or of which a Designee is a director, officer or employee shall be deemed to meet the standards set forth in this Section 3 if its businesses are conducted through the use of its own personnel and assets and not with the use of any personnel or assets of the Company. Without limiting the foregoing, such standards will be met with respect to a business opportunity only if (a) it is identified by or presented to personnel of AAA, such affiliate of AAA, such Designee or such other company and developed and pursued solely through the use of their personnel and assets (and notbased on confidential information disclosed by or on behalf of the Company in or duri ng the course of such Designee’s relationship with the Company), and (b) it did not come to the attention of such Designee solely in, and as a direct result of, his or her capacity as a director of the Company; provided that (i) if such opportunity is separately identified by AAA or one of its affiliates or such other company or separately presented to AAA or one of its affiliates or such other company by a person other than such Designee, AAA, such affiliate or such company shall be free to pursue such opp ortunity even if it also came to the Designee’s attention solely as a result of and in his or her capacity as a director of the Company and (ii) if such opportunity is presented to or identified by a Designee other than solely as a result of and in his or her capacity as a director of the Company, AAA or such affiliate or such other company shall be free to pursue such opportunity even if it also came to the Designee’s attention as a result of and in his or her capacity as a director of the Company. Nothing in this Agreement will allow a Designee to usurp a corporate opportunity solely for his or her personal benefit (as opposed to pursuing, for the benefit of AAA, an affiliate or AAA or any such other company, an opportunity in accordance with the standards set forth in this Section 3).4. Termination of Section 1. Section 1 of this Agreement will terminate at such time as AAA no longer owns, directly or indirectly,capital stock of the Company representing at least 35% of the ordinary voting power for the election of directors of the Company.5. Waiver. If the Company seeks a waiver of provisions of this Agreement, the Company shall CCCmit to AAA a written request, accompanied with materials that provide a basis for the request and assist AAA in considering the request. AAA shall respond to the request within five business days of its receipt of the request, unless it determines that it requires additional information before responding, in which case it shall notify the Company of its request for additional information. Within five business days of receipt of the Company’s response to its request for additional information, AAA shall notify the Company of its decision as to the request for a waiver. AAA may withhold such waiver in its sole discretion or grant a conditional or limited waiver, and AAA shall have no duty, fiduciary or otherwise, to grant any such waiver.6. Miscellaneous.This Agreement may be signed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and such counterparts together shall constitute one instrument. This Agreement shall be governed by and construed in。