STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (the "Agreement") dated as of March 30, 1998,
by and among DATA TRANSMISSION NETWORK CORPORATION, a Delaware corporation
("Buyer"), and the persons listed in Schedule 1 attached hereto (collectively,
the "Sellers" and individually, a "Seller").
WHEREAS, each Seller is the owner, beneficially and of record, of the
number of shares of the Common Stock of Xxxxxxxx, Inc., a Minnesota corporation
(the "Company"), set forth opposite his, her or its name on Schedule 1 attached
hereto, and Sellers are the owners, in the aggregate, of all of the issued and
outstanding capital stock of the Company; and
WHEREAS, Buyer wishes to purchase from Sellers and Sellers wish to sell
to Buyer all of the issued and outstanding capital stock of the Company upon and
subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties and agreements herein contained, Buyer and Sellers
agree as follows:
ARTICLE I
SALE OF SHARES
1.01 Sale of Shares. Subject to the terms and conditions herein stated,
each Seller agrees to sell, assign, transfer and deliver to Buyer on the Closing
Date (as defined herein), the respective shares of Common Stock of the Company
set forth opposite his, her or its name on Schedule 1 attached hereto (the
"Shares"), and Buyer agrees to purchase the Shares from Sellers on the Closing
Date. The certificates representing the Shares shall be duly endorsed in blank,
or accompanied by stock powers duly executed in blank, by Sellers, with all
signatures guaranteed by a state or national bank.
1.02 Price. In full consideration for the purchase by Buyer of the
Shares, Buyer shall pay to each Seller on the Closing Date, and each Seller
agrees to accept from Buyer as the entire purchase price for such Seller's
Shares, the amount set forth opposite such Seller's name in Schedule 1 attached
hereto, being an aggregate amount of Sixteen Million Four Hundred Thousand
Dollars ($16,400,000).
1.03 Closing. Subject to Section 7.01 hereof, the sale referred to in
Section 1.01 (the "Closing") shall take place at the offices of Faegre & Xxxxxx,
LLP, Minneapolis, Minnesota, on such date as the parties hereto shall by written
instrument designate, but no later than ten (10) days after the later to occur
of (i) the expiration or termination of all applicable waiting periods with
respect to each of the antitrust filings referred to in Section 5.01(b) hereof
(including any extensions thereof) or (ii) the receipt of all FCC approvals
referred to in Section 5.01(c). Such time and date are herein referred to as the
"Closing Date".
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLERS
As of the date hereof (except as otherwise specified herein and except
as set forth in the disclosure schedule accompanying this Agreement) (the
"Disclosure Schedule") each Seller severally represents and warrants to Buyer as
follows (provided, however, that each Seller so represents and warrants only
with respect to that Seller and not with respect to any other Seller):
2.01 Title to Stock.
Each Seller (i) has good and valid title, beneficially and of record,
to the respective Shares set forth opposite his, her or its name on Schedule 1
attached hereto, free and clear of all liens, encumbrances and rights of others,
(ii) is in rightful possession of duly and validly authorized and issued
certificates evidencing his, her or its ownership of record of the Shares, (iii)
has full right, power and authority to sell, transfer, convey and deliver to
Buyer, in accordance with the terms of this Agreement, good and valid title,
beneficially and of record, to all of such Shares being sold by such Seller to
Buyer hereunder, free and clear of all liens, encumbrances and rights of others
and (iv) does not own any other shares of capital stock of the Company other
than the shares set forth opposite his, her or its name on Schedule 1 attached
hereto and does not have the right to purchase or receive any additional shares
of capital stock of the Company. Except for the sale to Buyer as contemplated by
this Agreement, there are no outstanding options, warrants, calls or other
rights to subscribe for or purchase or acquire any capital stock of the Company
from the Sellers.
2.02 Authority Relative to the Transactions Contemplated by this
Agreement. Each Seller has all necessary power, capacity and authority
(corporate or otherwise) to execute and deliver this Agreement and to consummate
the transactions contemplated hereby. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have been
duly and validly authorized on behalf of all Sellers and no other proceedings on
behalf of Sellers are necessary to approve and authorize the execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby. This Agreement has been duly and validly executed and delivered by
Sellers, and (assuming the valid execution and delivery of this Agreement by
Buyer) constitutes a valid and binding agreement of Sellers, enforceable against
Sellers in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general applicability relating to
or affecting creditors' rights and to general principles of equity.
2.03 Consents and Approval; No Violation. Neither the execution and
delivery of this Agreement by Sellers, nor the consummation by Sellers of the
transactions contemplated hereby, nor compliance by any Seller with the
provisions hereof, will (i) conflict with or breach any trust agreement (or
other similar governing documents) of any Seller; (ii) violate or breach a
provision of, or constitute a default (or an event which, with notice or lapse
of time or both would constitute a default) under, any of the terms, covenants,
conditions or provisions of any note, bond, mortgage, indenture, deed of trust,
license, franchise, permit, lease, contract, agreement or other instrument,
commitment or obligation to which any Seller is a party, or by which any Seller
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or any of their respective properties or assets may be bound, except for such
breaches or defaults which when considered together do not have a material
adverse effect on the transactions contemplated by this Agreement or on the
assets, liabilities, business or financial condition of the Company; or (iii)
assuming compliance with all antitrust laws, violate any order, writ,
injunction, decree, judgment, statute, law or ruling of any court or
governmental authority applicable to any Seller or any of their material assets,
except for violations which, when considered together, do not have a material
adverse effect on the transactions contemplated by this Agreement or on the
assets, liabilities, business or financial condition of the Company, taken as a
whole.
2.04 Brokers and Finders. No Seller has employed any broker or finder
and no broker or finder is entitled to any brokerage fees, commissions or
finder's fees arising from any act, representation or promise of any of them in
connection with the transactions contemplated hereby.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER
As of the date hereof, Buyer represents and warrants to Principal and
Sellers as follows:
3.01 Organization. Buyer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
3.02 Authority Relative to this Agreement. Buyer has all necessary
power, capacity and authority (corporate or otherwise) to execute and deliver
this Agreement and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by the
Board of Directors of Buyer and no other proceedings on the part of Buyer or its
stockholders are necessary to approve and authorize the execution and delivery
of this Agreement or the consummation of the transactions contemplated hereby.
This Agreement has been duly and validly executed and delivered by Buyer and
(assuming the valid execution and delivery of the Agreement by Sellers and
Principal) constitutes a valid and binding agreement of Buyer, enforceable
against Buyer in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general applicability relating to
or affecting creditors' rights and to general principles of equity.
3.03 Consents and Approvals; No Violation. Neither the execution and
delivery of this Agreement by Buyer nor the consummation by Buyer of the
transactions contemplated hereby, nor compliance by Buyer with any of the
provisions hereof, will (i) require Buyer to file or register with, notify, or
obtain any permit, authorization, consent, or approval of, any governmental or
regulatory authority except (A) for filings with the Federal Trade Commission
("FTC") and with the Antitrust Division of the United States Department of
Justice (the "Antitrust Division") pursuant to the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976 as amended (the "HSR Act") and the rules and
regulations thereunder or (B) for those requirements which become applicable to
Buyer as a result of the specific regulatory status of the Company or as a
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result of any other facts that specifically relate to the business activities in
which the Company is or proposes to be engaged; (ii) conflict with or breach any
provision of the Certificate of Incorporation or by-laws of Buyer; (iii) violate
or breach any provision of, or constitute a default (or an event which, with
notice or lapse of time or both, would constitute a default) under, any of the
terms, covenants conditions or provisions of any note, bond mortgage, indenture
deed of trust, license, franchise, permit, lease, contract, agreement or other
instrument, commitment or obligation to which Buyer is a party, or by which
Buyer or any of its properties or assets may be bound, except for such breach or
default which would not have a material adverse effect on the transactions
contemplated by this Agreement taken as a whole; or (iv) assuming compliance
with all antitrust laws (including the HSR Act) violate any order, writ,
injunction, decree, judgment, statute, law or ruling of any court or
governmental authority applicable to Buyer or any of its material assets, which
violation would have a material adverse effect on the transactions contemplated
by this Agreement taken as a whole.
3.04 Litigation; Compliance with Law. Buyer is not a party to any
action or proceeding which seeks, or is subject to, any outstanding order, writ,
injunction or decree, which restrains or enjoins consummation of the
transactions contemplated hereby or which otherwise challenges the transactions
contemplated hereby and (ii) there is no litigation, administrative, arbitral or
other proceeding, or petition or complaint or, to the knowledge of Buyer,
investigation before any court or governmental or regulating authority or body
pending or, to the knowledge of Buyer, threatened against or relating to Buyer
that would materially adversely affect Buyer's ability to perform its
obligations pursuant to this Agreement.
3.05 Brokers and Finders. Buyer has not employed any broker or finder
and no broker or finder is entitled to any brokerage fees, commissions or
finder's fees arising from any act, representations or promise of Buyer, in
connection with the transactions contemplated hereby.
3.06 Purchase for Investment. Buyer will acquire all of the outstanding
stock of the Company to be purchased by it hereunder for its own account for
investment and not with a view toward any resale or distribution thereof. Buyer
understands that the Shares have not been registered under the Securities Act of
1933, as amended, or the securities laws of any states and, accordingly, the
Shares may not be resold by Buyer unless registered under the 1933 Act and
applicable state securities laws, or sold in transactions which are exempt from
registration thereunder.
ARTICLE IV
COVENANTS OF THE PARTIES
4.01 Expenses. Whether or not the transactions contemplated hereby are
consummated, all costs and expenses incurred in connection with this Agreement
and the transactions contemplated hereby will be paid by the respective party
that incurred such cost or expense.
4.02 Reasonable Best Efforts. Subject to the terms and conditions of
this Agreement and except as otherwise provided herein, all of the parties
hereto will use their reasonable best efforts to take, or cause to be taken, all
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action, and to do, or cause to be done, all things necessary, proper or
advisable under applicable laws and regulations to consummate and make effective
the transactions contemplated by this Agreement. In case at any time after the
Closing any further action is necessary or desirable to carry out the purposes
of this Agreement or to put Buyer in possession of all of the Shares of the
Company or the Company in possession of all of its assets, each party to this
Agreement will, or will cause its affiliates as the case may be, to take all
such necessary action including, without limitation, the execution and delivery
of such further instruments and documents as may reasonably be requested by the
parties hereto for such purposes or otherwise to complete or perfect the
transactions contemplated hereby.
4.03 Consents. Each of the parties hereto will use its reasonable best
efforts to obtain the written consents of all persons and governmental
authorities required to be obtained by each such party and necessary to the
consummation of the transactions contemplated by this Agreement.
4.04 Disclosure Supplements. From time to time prior to the Closing,
Sellers will promptly supplement or amend ("Disclosure Supplements") any
Schedule referred to in this Agreement with respect to any matter hereafter
arising which, if existing or occurring at or prior to the date of this
Agreement, such party determines would have been required to be set forth or
described in a Schedule or which is necessary to correct any information in a
Schedule or in any representation or warranty of any Seller which has been
rendered inaccurate thereby. The representations and warranties of Sellers shall
be amended by the Disclosure Supplements in all respects and for all purposes
other than for the purposes of determining satisfaction of the conditions to
Closing set forth in Article V.
4.05 Public Announcements. Between the date of this Agreement and the
earlier of the Closing Date or the termination of this Agreement pursuant to
Section 7.01 hereof, Trusts and Buyer will consult with each other before any of
them issues any press releases or otherwise makes any public statements
(including statements made to employees of the Company) with respect to this
Agreement and the transactions contemplated hereby.
4.06 Transfer Taxes. All transfer taxes (including all stock transfer
taxes, if any) incurred in connection with this Agreement and the transactions
contemplated hereby will be borne by the respective Sellers, and such Sellers
will, at their own expense, file all necessary tax returns and other
documentation with respect to all such transfer taxes, and, if required by
applicable law, the other parties hereto will (and will cause the Company to)
join in the execution of any such tax returns or other documentation.
4.07 No Solicitation. Between the date of this Agreement and the
earlier of the Closing Date or the termination of this Agreement pursuant to
Section 7.01 hereof, Sellers shall not initiate, solicit, encourage, or
participate in, any discussions with, or provide any information to, any
corporation, partnership, person, entity or group, other than Buyer and its
employees and agents, concerning any merger, consolidation, sale of assets or
similar transaction involving the Company, or any sale of Shares or capital
stock of the Company, including securities convertible into or exchangeable for
such securities, by the issuer (any such transaction being referred to herein as
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an "Acquisition Proposal"). Sellers will suspend any pre-existing discussions
involving any Acquisition Proposal and will immediately advise Buyer if any
Seller receives any Acquisition Proposal from any corporation, partnership,
person, entity or group.
ARTICLE V
CONDITIONS
5.01 Conditions to Each Party's Obligations to Effect the Transactions
Contemplated Hereby. The respective obligations of each party hereto to effect
the transactions contemplated hereby shall be subject to the fulfillment at or
prior to the Closing of each of the following conditions:
(a) No statute, rule, regulation, executive order, decree, injunction
or restraining order shall have been enacted, entered, promulgated or enforced
by any court of competent jurisdiction or governmental authority, nor shall any
action or proceeding brought by any governmental authority or agency be pending,
which (i) prevents, restricts or delays or seeks to prevent, restrict or delay
the consummation of the transactions contemplated by this Agreement or (ii)
seeks a material amount of monetary damages in connection with the consummation
of the transactions contemplated by this Agreement.
(b) Sellers and Buyer and any other person (as defined in the HSR Act)
required in connection with the transactions contemplated hereby to file a
Notification and Report Form for Certain Mergers and Acquisitions with the
Antitrust Division and the FTC pursuant to the HSR Act shall have made such
filings and all applicable waiting periods with respect to each such filing
(including any extensions thereof) shall have expired or been terminated.
(c) Buyer and the Company shall have filed with the FCC all requisite
applications in connection with the transfer of control of all FCC-licensed
satellite earth station facilities, experimental FCC authorizations, and
equipment authorizations currently held by the Company pursuant to the FCC
Rules, and each such application shall have been approved by the FCC.
(d) Each condition to closing set forth in that certain Agreement
Regarding Stock Acquisition (the "Agreement Regarding Stock Acquisition") among
Xxxxxxx X. Xxxxxxxx, Buyer and the trusts listed on Schedule 1 as Sellers, dated
of even date herewith, shall have been fulfilled at or prior to Closing, or such
condition shall have been waived by the party whose obligations under the
Agreement Regarding Stock Acquisition were contingent upon such condition.
5.02 Conditions to the Obligations of Sellers to Effect the
Transactions Contemplated Hereby. The obligations of Sellers to effect the
transactions contemplated hereby shall be further subject to the fulfillment at
or prior to the Closing of each of the following conditions, any one or more of
which may be waived in whole or in part by a majority of Sellers in writing:
(a) Buyer shall have performed and complied in all material respects
with all agreements, obligations, conditions and covenants contained in this
Agreement required to be performed and complied with by it at or prior to the
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Closing and all representations and warranties of Buyer contained in this
Agreement shall be true and correct in all material respects as of the date of
this Agreement and as of the Closing Date (as if the Closing Date was the date
of this Agreement), and Sellers shall have received certificates to that effect
signed by the President or any Vice President of Buyer together with such other
documents, instruments and writings required to be delivered by Buyer at or
prior to the Closing pursuant to this Agreement or otherwise reasonably required
by Buyer in connection herewith.
(b) Buyer shall have delivered to Sellers (i) a copy of the Certificate
of Incorporation of Buyer, including all amendments thereto, certified by the
Secretary of State of the State of Delaware and (ii) a certificate from the
Secretary of the State of Delaware to the effect that Buyer is in good standing
in such State.
(c) No actions or proceedings which have a material likelihood of
success shall have been instituted or, to the knowledge of Buyer, threatened by
any governmental body or authority to restrain or prohibit any of the
transactions contemplated hereby.
(d) All material consents, waivers, authorizations, licenses and
approvals, if any, necessary to permit Sellers to consummate the transactions
contemplated by this Agreement shall have been received.
(e) All documents and instruments to be delivered at Closing or
otherwise in connection with the transactions contemplated by this Agreement
shall be reasonably satisfactory in form and substance to Sellers and their
counsel.
5.03 Conditions to the Obligations of Buyer to Effect the Transactions
Contemplated Hereby. The obligations of Buyer to effect the transactions
contemplated hereby shall be further subject to the fulfillment at or prior to
the Closing of each of the following conditions, any one or more of which may be
waived in whole or in part by Buyer in writing:
(a) Sellers shall have performed and complied in all material respects
with all agreements, obligations, conditions and covenants contained in this
Agreement required to be performed and complied with by them at or prior to the
Closing and all representations and warranties of Sellers set forth in this
Agreement shall be true and correct in all material respects as of the date of
this Agreement and as amended by any Disclosure Supplements as of the Closing
Date (as if the Closing Date was the date of this Agreement), and Buyer shall
have received certificates to that effect signed by Sellers, in the form
attached hereto as Exhibit A, together with such other documents, instruments
and writings required to be delivered by Sellers or by the Company at or prior
to the Closing pursuant to this Agreement or otherwise required in connection
herewith, provided, however, that if the Disclosure Supplements reveal a
material change from the Schedules attached hereto at the date hereof that is
unacceptable to Buyer, Buyer shall not be obligated to effect the transactions
contemplated hereby.
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(b) No action or proceedings which have a reasonable likelihood of
success shall have been instituted or, to the knowledge of Sellers, threatened
by any governmental body or authority to restrain or prohibit any of the
transactions contemplated hereby.
(c) Each party hereto shall have received all material consents,
waivers, approvals, licenses or other authorizations required from any
governmental or non-governmental entity for the execution, delivery and
performance of this Agreement by the parties hereto.
(d) No injunction or other court order requiring that any part of the
business or assets of the Company be held separate or divested or that any
business or assets of Buyer or any affiliate of Buyer be divested, or imposing
or involving any conditions on Buyer or its affiliates or the Company, which
could be reasonably expected to have a material adverse effect on the assets,
liabilities, business, financial condition, prospects or results of operations
of either Buyer or any affiliate of Buyer on the one hand, or the Company on the
other hand, shall be in effect and no proceedings shall be pending by or before,
or threatened in writing by or before, any governmental body or court of
competent jurisdiction with respect thereto.
(e) Other than as disclosed in the Disclosure Schedule, there shall not
be in effect at the Closing Date any contractual provisions restricting the
ability of the Company or any affiliate thereof to conduct any business or
compete with any person or restricting the area in which it may conduct any
business.
(f) Buyer and its counsel shall have approved (which approval shall not
be unreasonably withheld) (i) the form of stock power or other instruments of
transfer to be delivered to Buyer at the Closing and (ii) all other documents
and instruments to be delivered at the Closing or otherwise in connection with
the transactions contemplated by this Agreement.
ARTICLE VI
SURVIVAL AND INDEMNIFICATION
6.01 Survival of Representations, Warranties and Covenants. All
covenants and agreements of any party hereto set forth herein shall survive the
Closing for the period provided for in such covenant or, if not so provided, for
a period of one year. The representations and warranties set forth herein shall
survive the Closing and shall remain in effect for a period of one year from the
Closing Date.
6.02 Post-Closing Indemnification. (a) From and after the Closing Date,
Buyer shall defend, indemnify and hold harmless Sellers and their heirs,
trustees, successors and assigns against and in respect of any and all losses,
actions, suits, proceedings, claims, liabilities, damages, causes of action,
demands, assessments, judgments, and investigations and any and all costs and
expenses paid to third parties, including without limitation, reasonable
attorneys' fees and expenses, suffered by any of them as a result of, or arising
from, any inaccuracy in or breach of or omission from any of the representations
or warranties made by Buyer in Article III of this Agreement or pursuant hereto,
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or any non-fulfillment, partial or total, of any of the covenants or agreements
made by Buyer in this Agreement to the extent not waived by Sellers in writing.
(b) From and after the Closing Date, each Seller shall defend,
indemnify and hold harmless the Buyer and its subsidiaries (including the
Company) and each of their successors, assigns, officers, directors and
employees (the "Buyer Indemnitee Group") against and in respect of any and all
losses, actions, suits, proceedings, claims, liabilities, damages, causes of
action, demands, assessments, judgments, and investigations and any and all
costs and expenses paid to third parties, including without limitation,
reasonable attorneys' fees and expenses suffered by any of them as a result of,
or arising from, any inaccuracy in or breach of or omission from any of the
representations or warranties made by such Seller in Article II of this
Agreement or pursuant hereto, or any non-fulfillment, partial or total, of any
of the covenants or agreements made by such Seller in this Agreement.
(c) If a claim by a third party is made against an indemnified party,
and if such party intends to seek indemnity with respect thereto under this
Article VI, the indemnified party shall promptly (and in any case within ten
days of such claim being made) notify the indemnifying party of such claim,
provided, however, that the failure to so notify the indemnifying party shall
not discharge the indemnifying party of its obligations hereunder except that
the indemnifying party shall not be liable for default judgments or any amounts
related thereto if the indemnified party shall not have so notified the
indemnifying party. Subject to the following sentence, the indemnifying party
shall have thirty days after receipt of such notice to undertake, conduct and
control, through counsel of its own choosing (which is satisfactory to the
indemnified party) the settlement or defense thereof, and the indemnified party
shall cooperate with it in connection therewith (provided that the indemnifying
party shall permit the indemnified party to participate in such settlement or
defense through counsel chosen by the indemnified party, provided that the fees
and expenses of such counsel shall be borne by the indemnified party) and the
indemnifying party shall promptly reimburse the indemnified party for the full
amount of any loss resulting from such claim and all related expenses as
incurred by the indemnified party within limits of this Article VI.
Notwithstanding anything herein to the contrary, the indemnified party shall
have the right to conduct and control the defense of any such claim in the event
that such claim (including a claim for equitable relief) or the continuation of
such claim could reasonably be expected to materially adversely affect the
business, results of operations, prospects or financial condition of the
indemnified party or any of its affiliates, provided, however, that (i) in such
event the indemnified party's selection of counsel shall be subject to the
approval of the indemnifying party, which approval shall not be unreasonably
withheld, and (ii) the indemnified party may not settle any claim for an amount
in excess of $25,000 or consent to any settlement which imposes equitable
remedies on the indemnifying party or its affiliates without the prior consent
of the indemnifying party, which consent shall not be unreasonably withheld,
unless the indemnified party agrees to waive any right to indemnity therefor by
the indemnifying party. If the indemnifying party does not notify the
indemnified party within thirty days after the receipt of the indemnified
party's notice of a claim of indemnity hereunder that it elects to undertake the
defense thereof or if the indemnifying party is not reasonably contesting the
claim in good faith, the indemnified party shall have the right to contest,
settle or compromise the claim in the exercise of its reasonable judgment, and
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all losses incurred by the indemnified party, including all fees and expenses of
counsel for the indemnified party, shall be paid by the indemnifying party.
(d) Claims for indemnification made under this Section 6.02 shall be
made within a period of one year from the Closing Date.
6.03 Limitation on Indemnification. (a) Notwithstanding the provisions
of Section 6.02(a) hereof, Buyer shall not be obligated to indemnify and hold
harmless Sellers until the aggregate of all claims for which indemnification is
sought against Buyer under Section 6.02(a) of this Agreement and Section 6.02(b)
of the Agreement Regarding Stock Acquisition exceeds, in the aggregate, Eighty
Thousand Dollars ($80,000), and then only as to the amount by which aggregate
claims thereunder exceed $80,000. Buyer's aggregate liability with respect to
the indemnification contained in Section 6.02(a) of this Agreement and Section
6.02(b) of the Agreement Regarding Stock Acquisition shall not exceed
$2,000,000, and each party hereto waives (on its own behalf, and on behalf of
all indemnified persons named hereunder benefiting from such party's
indemnification) any and all rights, claims and causes of action that it or such
persons may have against the indemnifying party under such indemnification
provisions to the extent such rights, claims and causes of action would or could
result in aggregate liability of the indemnifying party in excess of $2,000,000.
(b) Notwithstanding the provisions of Section 6.02(b) hereof, the
aggregate liability under this Agreement of each Seller shall not exceed the
amount set forth opposite such Seller's name in Schedule 1 attached hereto,
being the purchase price for such Seller's Shares.
(c) Except for liability provided for in Section 7.02(b) hereof and the
remedy of specific performance provided for in Section 8.12 hereof, each party
hereto acknowledges and agrees that his, her or its sole and exclusive remedy
with respect to any and all claims relating to the subject matter of this
Agreement shall be pursuant to the indemnification provisions set forth in this
Article VI. In furtherance of the foregoing, each party waives, to the fullest
extent permitted under applicable law, any and all rights, claims and causes of
action that it may have against the other party arising under or based upon any
federal, state or local statute, law, ordinance, rule or regulation, or arising
under or based upon common law or otherwise, except to the extent provided in
this Article VI.
ARTICLE VII
TERMINATION AND ABANDONMENT
7.01 Termination. This Agreement may be terminated at any time prior to
the Closing:
(a) by the mutual consent of Buyer and a majority of Sellers; or
(b) by either Buyer or a majority of Sellers if the Closing shall not
have occurred on or before December 31, 1998 or such later date as may be agreed
upon by Buyer, and a majority of Sellers; or
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(c) upon the termination of the Agreement Regarding Stock Acquisition.
7.02 Procedure and Effect of Termination. In the event of termination
of this Agreement and abandonment of the transactions contemplated hereby by any
or all of the parties pursuant to Section 7.01, written notice thereof shall
forthwith be given to the other parties to this Agreement and this Agreement
shall terminate and the transactions contemplated hereby shall be abandoned,
without further action by any of the parties hereto. If this Agreement is
terminated as provided herein:
(a) the parties hereto will promptly redeliver to the Sellers or Buyer,
as the case may be, all documents, work papers and other materials of any other
party relating to the transactions contemplated hereby, whether obtained before
or after the execution hereof; and
(b) no party hereto shall have any liability or further obligation to
any other party to this Agreement pursuant to this Agreement except (i) with
respect to Section 4.01, and (ii) solely with respect to terminations pursuant
to Section 7.01(b), any party whose material breach of any covenant or agreement
hereunder shall have resulted in the failure of the transactions contemplated by
this Agreement to close, shall be liable for breach of contract or otherwise, to
the extent provided by law (it being understood, however, that any matter set
forth on a Disclosure Supplement hereunder shall not be construed as a breach or
default of this Agreement); provided, however, that this subsection (b) (ii)
shall not be construed to limit the remedies otherwise available with respect to
such defaulting party.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
8.01 Amendment and Modification. This Agreement may be amended,
modified or supplemented only by written agreement of Buyer and Sellers.
8.02 Waiver of Compliance; Consents. Except as otherwise provided in
this Agreement, any failure of any of the parties to comply with any obligation,
covenant, agreement or condition herein may be waived by the party or parties
entitled to the benefits thereof only by a written instrument signed by the
party granting such waiver, but such waiver or failure to insist upon strict
compliance with such obligation, covenant, agreement or condition shall not
operate as a waiver of, or estoppel with respect to, any subsequent or other
failure. Whenever this Agreement requires or permits consent by or on behalf of
any party hereto, such consent shall be given in writing in a manner consistent
with the requirements for a waiver of compliance as set forth in this Section
8.02.
8.03 No Third Party Beneficiaries. Except as provided in this
Agreement, nothing in this Agreement shall confer any rights upon any person or
entity which is not a party or a permitted assignee of a party to this
Agreement.
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8.04 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered in person, by cable, telegram or telex, telecopy,
courier, express mail delivery service, or by registered or certified mail
(postage prepaid, return receipt requested) to the respective parties as
follows:
(a) if to Sellers, to their respective addresses
set forth on Schedule 1 of this Agreement;
(b) if to Buyer, to:
Data Transmission Network Corporation
0000 Xxxx Xxxxx Xxxx
Xxxxx 000
Xxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxx, President
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxxx Xxxxxx & Xxxxxxx
0000 Xxxx Xxxxx Xxxx
Xxxxx 000
Xxxxx, Xxxxxxxx 00000
Attn: R. Xxxxx Xxx
Facsimile: (000) 000-0000
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above
(provided that notice of any change of address shall be effective only upon
receipt thereof).
8.05 Assignment. This Agreement and all of the provisions hereof shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. Neither this Agreement nor any of
the rights, interests or obligations hereunder shall be assigned by any party
hereto without the prior written consent of the other parties, except as
provided in Section 8.13.
8.06 Governing Law; Consent to Jurisdiction. This Agreement shall be
governed by the law of the State of Nebraska as to all matters, including, but
not limited to, matters of validity, construction, effect, performance and
remedies without giving effect to the principles of choice of law thereof.
8.07 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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8.08 Interpretation. The article and section headings contained in this
Agreement are solely for the purpose of reference, are not part of the agreement
of the parties and shall not in any way affect the meaning or interpretation of
this Agreement.
8.09 Entire Agreement. This Agreement, including the Exhibits hereto
and the agreements (including the Agreement Regarding Stock Acquisition),
documents, schedules, certificates and instruments referred to herein embodies
the entire agreement and understanding of the parties hereto in respect of the
transactions contemplated by this Agreement. There are no restrictions,
promises, representations, warranties, covenants or undertakings, other than
those expressly set forth or referred to herein or therein. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such transactions.
8.10 Certain Definitions.
(a) An "affiliate" of a person shall mean any person which, directly or
indirectly, controls, is controlled by, or is under common control with, such
person.
(b) The term "control" (including, with correlative meaning, the terms
"controlled by" and "under common control with"), as used with respect to any
person, means the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of such person, whether
through the ownership of voting securities or by contract or otherwise.
(c) The term "person" shall mean and include an individual, a
partnership, a limited liability company, a joint venture, a corporation, a
trust, an unincorporated organization and a government or any department or
agency thereof.
(d) The term "day" shall mean a calendar day unless otherwise stated.
(e) The term "subsidiary" when used in reference to any other person
shall mean any corporation of which outstanding securities having ordinary
voting power to elect a majority of the Board of Directors of such corporation
are owned directly or indirectly by such other person.
(f) Whenever any representation or warranty contained in this Agreement
is qualified by reference to the knowledge, information or belief of a party,
such party confirms that it has made due and diligent inquiry as to the matters
that are the subject of such representation and warranty.
8.11 Severability. The parties hereto acknowledge that the provisions
of this Agreement are reasonable under the circumstances. Any provision of this
Agreement that is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provisions in any other
jurisdiction.
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8.12 Specific Performance. Each of the parties hereto acknowledges and
agrees that the other parties hereto would be irreparably damaged in the event
any of the provisions of this Agreement are not performed in accordance with
their specific terms or are otherwise breached. Accordingly, each of the parties
hereto agrees that they each shall be entitled to an injunction or injunctions
to prevent breaches of the provisions of this Agreement and to enforce
specifically this Agreement and the terms and provisions hereof in any action
instituted in any court of the United States or any state thereof having
personal and subject matter jurisdiction, in addition to any other remedy to
which such party may be entitled at law or in equity. In the event of any action
or proceeding to enforce the terms and conditions of this Agreement, the
prevailing party shall be entitled to an award of reasonable attorneys' and
expert's fees and costs in addition to such other relief as may be granted.
8.13 Effectiveness. This Agreement shall not become effective unless
all Sellers named herein (other than Xxxx Xxxx and his spouse) have executed and
delivered this Agreement prior to the Closing. If Xxxx Xxxx does not become a
party prior to Closing, then the aggregate purchase price for the Shares shall
be reduced by the amount set forth opposite his name on Schedule 1 attached
hereto and, at the option of Buyer in its sole discretion, Buyer may assign this
Agreement to a wholly-owned subsidiary of Buyer immediately prior to Closing;
provided, however, that such assignment shall not release Buyer from any of its
obligations and liabilities under this Agreement.
IN WITNESS WHEREOF, Sellers and Buyer have signed, or caused this
Agreement to be signed by their respective representatives, as the case may be,
as of the date first above written.
DATA TRANSMISSION NETWORK
CORPORATION
By: /s/ Xxxx X. Xxxxx
----------------------------
Xxxx X. Xxxxx, President
XXXXXXX X. XXXXXXXX REVOCABLE
TRUST UNDER AGREEMENT DATED
SEPTEMBER 13, 1995
By: /s/ Xxxxxxx X. Xxxxxxxx, Trustee
--------------------------------
Xxxxxxx X. Xxxxxxxx, Trustee
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IRREVOCABLE GST TRUST FOR XXXXXXX
X. XXXXXXXX UNDER AGREEMENT
DATED JULY 29, 1997
By ______________________________
Xxxxxxx X. Xxxxxxxx, Trustee
And ____________________________
Xxxxx Xxxxxx, Trustee
---------------------------------
Xxxxxx X. Xxxxx
---------------------------------
Xxxxxx X. Xxxxxx
---------------------------------
Xxxxx Xxxxxx
---------------------------------
Mrs. Michael Govotas
---------------------------------
Xxxxxx Xxxxxx Xxxxxxxx
---------------------------------
Xxxxx Xxxxxx Xxxxxxxx
---------------------------------
Xxxxxxxx X. Xxxxxxxx
---------------------------------
Xxxxx Hjermstead, Xx.
00
- 000 -
---------------------------------
Xxxxxxx Hjermstead
---------------------------------
Xxxx Xxxx
---------------------------------
__________ Post
---------------------------------
Xxxxxx X. Xxxxxxx
---------------------------------
Xxxx X. Xxxxxxx
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SCHEDULE 1
Name and Number of Portion of
Address Of Seller Shares Owned Purchase Price
Xxxxxxx X. Xxxxxxxx, 100 $10,552,278
Trustee of the Xxxxxxx
X. Xxxxxxxx Revocable
Trust under Agreement
dated September 13, 1995
00000 Xxxx Xxxxx
Xxxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxxx and 30 $ 3,165,683
Xxxxx Xxxxxx, as Trustees
of the Irrevocable GST
Trust for Xxxxxxx X.
Xxxxxxxx under Agreement
dated July 29, 1997
00000 Xxxx Xxxxx
Xxxxxxxxxx, XX 00000
Xxxxxx X. Xxxxx, Ph.D., CCM 7 $ 738,660
00000 Xxxx Xxxxxx Xxxx 00
Xx. Xxxxxxx, XX 00000
Xxxxxx X. Xxxxxx 5 $ 527,614
0000 Xxxxx Xxxx Xxxx
Xxxxx, XX 00000
Xxxxxx and Xxxxx Xxxxxx 1/3 $ 35,174
0000 Xxxxx Xxxx Xxxx
Xxxxx, XX 00000
Mrs. Michael Govotas 4 422,091
000 Xxxxxxx Xxxxx
Xxxxxx Xxxxxx, XX 00000
Xxxxxx Xxxxxx Xxxxxxxx 2 $ 211,046
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
00
- 000 -
Xxxxx Xxxxxx Xxxxxxxx 0 $ 211,046
0000 X. 000xx Xxxx
Xxxxxxx, XX 00000
Xxxxxxxx X. Xxxxxxxx 2 $ 211,046
00 Xxxxx Xxxx Xxxx
Xxxxxxx, XX 00000
Xxxxx and Xxxxxxx 1 1/12 $ 114,316
Hjermstead, Jr.
0000 Xxxxxxxx Xxxxx, X.X.
Xxxxxx Xxxx, XX 00000
Xxxx Xxxx 1 $ 105,523
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Xxxxxx X. and Xxxx X. Xxxxxxx 1 $ 105,523
--- -----------
00000 Xxxxxxxxxxx Xxxx X
Xxxxxxxx, XX 00000
TOTALS 155 5/12 $16,400,000
18
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EXHIBIT A
CLOSING CERTIFICATE
The undersigned, being a Seller under that certain Stock Purchase Agreement
(the "Stock Purchase Agreement") dated March ___, 1998, among the shareholders
of Xxxxxxxx, Inc. (the "Company"), and Data Transmission Network Corporation
(the "Buyer"), do hereby certify to the Buyer as follows:
1. The undersigned has performed and complied in all material respects
with all agreements, obligations, conditions and covenants contained in the
Stock Purchase Agreement required to be performed and complied with by the
undersigned at or prior to the date hereof and all representations and
warranties of the undersigned set forth in the Stock Purchase Agreement are true
and correct in all material respects as if made on and as of this date, as
amended by any Disclosure Supplements.
2. This certificate is given pursuant to Section 5.03(a) of the Stock
Purchase Agreement.
DATED as of ______________, 1998
SELLER:
---------------------------------
Printed Name:_____________________
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