EXHIBIT 10.64
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") is entered into on this 27th
day of September, 2002 by and among RURAL/METRO CORPORATION, a company duly
organized and existing under the laws of the State of Delaware, United States of
America ("U.S.A."), with registered office at 0000 Xxxx Xxxxxx Xxxxxx Xxxx,
Xxxxxxxxxx, Xxxxxxx, 00000, X.X.X. ("Seller"),
AND
ALASIO BUSINESS INC., a company duly organized and existing under the laws of
the British Virgin Islands, with registered office at Pasea Estate, Road Town,
Tortola, British Virgin Islands, ("Buyer"), and XX. XXXXXX X. XXXXXXXXX, a
citizen of the U.S.A., residing at Barrio Las Palmes, Radial Castilla 000, Xxxxx
Xxxx xx xx Xxxxxx, Xxxxxxxx of Bolivia (hereinafter referred to as "TB"),
AND
RURAL/METRO OF ARGENTINA S.A., ECCO S.A., RURAL/METRO INVERSORA S.R.L., SAMTI
SALA MOVIL DE TERAPIA INTENSIVA S.R.L., INSTITUTO DE INVESTIGACIONES DEL CORAZON
"INICOR" S.A., and SCREEN MEDICA S.A., all of the foregoing entities being (i)
duly organized and existing under the laws of the Republic of Argentina
("Argentina") and (ii) subsidiaries of RURAL/METRO INTERNATIONAL, INC., a
company duly organized and existing under the laws of Delaware, with registered
office at 0000 Xxxx Xxxxxx Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxx, 00000, U.S.A., (the
"Company") and a wholly-owned subsidiary of Seller (except the Company,
altogether hereinafter referred to as the "Subsidiaries").
The Seller, the Buyer, the Subsidiaries and TB are hereinafter referred to
jointly as the "Parties."
R E C I T A L S
WHEREAS, As of the Closing Date, Seller is the owner of the totality of the
issued and outstanding shares of capital stock of the Company (the "Shares");
WHEREAS, TB is the legal representative of Buyer;
WHEREAS, TB, as the former Chief Operating Officer, Group President and
manager of the Subsidiaries for over one (1) year, has had full responsibility
for and has complete Knowledge of all aspects of the business, finances, assets,
Liabilities, Proceedings and operations of the Subsidiaries;
WHEREAS, Seller desires to sell, and Buyer desires to purchase, all of the
issued and outstanding Shares of the Company held by Seller, subject to the
terms and conditions herein;
WHEREAS, Buyer and the Subsidiaries acknowledge that the tradename
"RURAL/METRO" (the "Tradename") has acquired significant market value and
recognition and constitutes a substantial asset associated with the highest
standards in the fire protection services and the health care services provided
by the Subsidiaries in Argentina;
WHEREAS, the Subsidiaries desire to continue using, and enjoying the value
and benefits of, the Tradename in Argentina as such Tradename is used in the
business and operations of the Subsidiaries;
WHEREAS, the Buyer and the Subsidiaries acknowledge that the granting of
the right to the continued use of the Tradename by Seller represents a
substantial part of the consideration being received by Buyer and a significant
inducement for the Buyer and the Subsidiaries to enter into this Agreement;
WHEREAS, Seller is willing to grant Buyer and the Subsidiaries the right to
continue to use the Tradename in Argentina as such Tradename is presently being
used in the business and operations of the Subsidiaries, subject to the terms
and conditions of that certain Tradename Use Agreement dated as of even date
hereof (the "Tradename Use Agreement);
WHEREAS, Seller acknowledges certain Liabilities, including without
limitation net inter-company payable balances to the Subsidiaries as of the date
of this Agreement (the "Account Payable Obligations");
WHEREAS, Buyer is willing to assume the Account Payable Obligations and any
and all Liabilities related thereto, and Subsidiaries are willing to consent to
the assignment of the Account Payable Obligations and any and all Liabilities
related thereto, to Buyer and to fully release Seller and all Affiliates of
Seller, from the Account Payable Obligations and any and all Liabilities related
thereto;
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WHEREAS, Seller acknowledges that Buyer's assumption of the Account Payable
Obligations and any and all Liabilities related thereto, and the Subsidiaries'
consent and release in connection therewith represent a substantial part of the
consideration being received by Buyer and a significant inducement for the
Seller to enter into this Agreement;
NOW, THEREFORE, intending to be legally bound, and in consideration of the
representations, warranties, covenants and agreements contained herein, the
Parties hereby agree as follows:
1. DEFINITIONS
1.1 As used in this Agreement, the following terms or expressions shall
have the meaning hereinafter indicated.
"AFFILIATE" shall mean any Person, corporation, partnership, firm, joint venture
or other entity, which, directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control of one of
the Parties.
"ARGENTINA" shall have the meaning assigned to it in the Introduction to this
Agreement.
"ACCOUNT PAYABLE OBLIGATIONS" shall have the meaning assigned to it in the
Recitals above.
"ARGENTINEAN GAAP" shall mean generally accepted accounting principles for
financial reporting in Argentina.
"BUYER" shall have the meaning assigned to it in the Introduction to this
Agreement.
"BUYER'S CLOSING DOCUMENTS" shall have the meaning assigned to it in Section
3.1(b) of this Agreement.
"CLOSING" shall mean the delivery by the Parties of all certificates and
documents required to be delivered pursuant to this Agreement.
"CLOSING DATE" shall mean the date upon which the Closing occurs.
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"COMPANY" shall have the meaning assigned to it in the Introduction to this
Agreement.
"CONTRACT" shall mean any contract, agreement, commitment, understanding, lease,
license, franchise, warranty, guaranty, mortgage, note, bond, or other
instrument or consensual obligation (whether written or oral and whether express
or implied).
"CONTROL" shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of an entity,
whether through the ownership of a majority of the voting rights, by contract,
or otherwise.
"ENCUMBRANCE" shall mean any charge, claim, mortgage, servitude, easement, right
of way, community or other material property interest, covenant, equitable
interest, lien, option, pledge, security interest, preference, priority, right
of first refusal, or similar restriction.
"GENERAL RELEASE" shall have the meaning assigned to it in Section 2.2 (a) of
this Agreement.
"FOREIGN SUBSIDIARIES" shall have the meaning assigned to it in Section 5.2 (a)
of this Agreement.
"GOVERNMENTAL BODY" shall mean any:
(i) nation, region, state, county, city, town, village, district, or other
jurisdiction;
(ii) federal, state, local, municipal, foreign or other government;
(iii) governmental or quasi-governmental authority of any nature (including
any governmental agency, branch, department, or other entity and any
court or other tribunal);
(iv) multinational organization (to the exclusion of multinational
corporation or similar legal entity);
(v) body exercising, or entitled to exercise any administrative,
executive, judicial, legislative, policy, regulatory, or taxing
authority or power of any nature; and
(vi) official of any of the foregoing.
"KNOWLEDGE" - (i) an individual will be considered to have Knowledge of a fact
or matter if the individual is actually aware of the fact or matter or a prudent
individual could be expected to discover or otherwise become aware of the fact
or matter in the course of conducting a reasonable inquiry concerning the
existence of the fact or matter, (ii) an entity will be considered to have
knowledge of a fact or matter if any individual who is serving, or who has at
any time served, as officer, director or manager (or in similar capacity) has,
or at any time had, knowledge of the fact or matter, and (iii) Seller shall not
be considered to have knowledge of a fact or matter unless the Subsidiaries or
TB expressly brought, in writing, that fact or matter to the attention of the
Chief Executive Officer or General Counsel of Seller.
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"LEGAL REQUIREMENT" shall mean any constitution, law, statute, treaty, rule,
regulation, ordinance, binding case law or principle of common law, approval or
Order of any Governmental Body, and any Contract with any Governmental Body
relating to compliance with any of the foregoing.
"LIABILITIES" shall mean all manner and nature whatsoever of any past, present
or future claims, costs, losses, liabilities, obligations, deficiencies,
diminutions of value, expense, debts, sums of money, accounts, reckonings,
bonds, bills, covenants, contracts, agreements, promises, damages, actions,
proceedings, causes of action or suits, judgments, executions and demands,
including without limitation unpaid taxes, fees, levies, duties, tariffs, fines,
penalties and other charges of any kind imposed by any Governmental Body,
whether any of the foregoing arise in law or at equity, whether any of the
foregoing are known or unknown, absolute, accrued, contingent, xxxxxx, inchoate,
or otherwise, due or to become due, and whether any of the foregoing are or are
not required to be reflected on a balance sheet prepared in accordance with (i)
U.S. GAAP or (ii) Argentinean GAAP.
"LOSS" shall mean any Liability (including any penalty and any reasonable
professional and legal fees and costs) incurred or suffered by a Party (or a
person entitled to indemnification under this Agreement), whether or not
involving a third-party claim;
"MATERIAL ADVERSE EFFECT" - something would be considered to have a "Material
Adverse Effect" if it (i) materially adversely affects the financial or other
condition or results of operations, assets, Liabilities, equity, business or
prospects of the Subsidiaries, or (ii) materially adversely impedes the ongoing
business or operations of the Subsidiaries.
"ORDER" shall mean any order, injunction, judgement, decree, ruling, assessment
or arbitration award of any Governmental Body or arbitrator.
"ORGANIZATIONAL DOCUMENTS" shall mean any charter, articles, bylaws,
certificates, statement, statutes, or similar document adopted, filed or
registered in connection with the creation, formation, or organization of an
entity, and any Contract among the equity holders, partners or members of an
entity.
"PARTIES" shall have the meaning assigned to it in the Introduction to this
Agreement.
"PERSON" shall refer to an individual, or an entity, including a corporation,
share company, limited liability company, partnership, trust, association,
Governmental Body or any other body with legal personality separate from its
equity holders or members.
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"PROCEEDING" shall mean any action, arbitration, audit, hearing, investigation,
litigation, or suit (whether civil, criminal, administrative, judicial or
investigative, whether formal or informal, and whether public or private)
commenced, brought, conducted or heard by or before, or otherwise involving any
Governmental Body or arbitrator.
"PROCESS AGENT" shall have the meaning assigned to it in Section 10(4)(d) of
this Agreement.
"RELEASED PARTIES" shall mean Seller, and (excluding Releasors) each of its
past, present and future Affiliates, the respective past, present and future
officers, directors, employees, servants, stockholders, agents, representatives,
attorneys, insurers, lenders, creditors, subsidiaries, parents, divisions and
other corporate affiliates of each of the foregoing, and the beneficiaries,
heirs, executors, administrators, predecessors, successors and assigns of each
of the foregoing, and all Persons or entities acting by, through, under, or in
concert with any of the foregoing.
"RELEASORS" shall mean each of TB, the Subsidiaries and Buyer, and (excluding
any Released Parties) each of their past, present and future Affiliates, and the
respective past, present and future officers, directors, employees, servants,
stockholders, agents, representatives, attorneys, insurers, lenders, creditors,
subsidiaries, parents, divisions and other corporate affiliates of each of the
foregoing, and the beneficiaries, heirs, executors, administrators,
predecessors, successors and assigns of each of the foregoing, and all Persons
or entities acting by, through, under, or in concert with any of the foregoing.
"SHARES" shall have the meaning assigned to it in the Recitals of this
Agreement.
"SELLER" shall have the meaning assigned to it in the Introduction to this
Agreement.
"SELLER'S CLOSING DOCUMENTS" shall have the meaning assigned to it in Section
3.1 (a) of this Agreement.
"SUBSIDIARIES" shall have the meaning assigned to it in the Introduction to this
Agreement.
"TB" shall have the meaning assigned to it in the Introduction to this
Agreement.
"TRADENAME USE AGREEMENT" shall have the meaning assigned to it in the Recitals
above.
"U.S.A." shall have the meaning assigned to it in the Introduction to this
Agreement.
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"U.S. GAAP" shall mean generally accepted accounting principles for financial
reporting in the U.S.A.
"U.S.A. SUBSIDIARIES" shall have the meaning assigned to it in Section 8 (e) of
this Agreement.
1.2 PRINCIPLES OF INTERPRETATION
Capitalized terms used in this Agreement and in the Appendices hereto have
the meanings set forth in this Agreement. In this Agreement, unless otherwise
indicated and unless otherwise required by the context, the singular includes
the plural and plural the singular; words importing any gender include each
other gender; references to statutes or regulations are to be construed as
including all statutory or regulatory provisions consolidating, amending or
replacing the statute or regulation referred to; references to "writing" include
printing, typing and other means of reproducing words in a tangible visible
form; the words "including," "includes" and "include" shall be deemed to be
followed by the words "without limitation"; the words "will" and "shall" shall
be deemed to be interchangeable; references to articles, sections (or
subdivisions of sections), exhibits, annexes, appendices or schedules are to
this Agreement; references to agreements and other contractual instruments shall
be deemed to include all subsequent amendments, extensions and other
modifications to those instruments; and references to persons include their
respective permitted assigns and successors. The division of this Agreement into
Articles and Sections shall not affect the construction or interpretation of
this Agreement. The terms "this Agreement", "herein", "hereof", "hereunder" and
similar expressions refer to this entire Agreement, including the Recitals and
attachments hereto, and not to any particular Article, Section, paragraph,
Appendix, Schedule or other portion hereof and include any agreement
supplemental hereto. Unless otherwise provided, all references to "Articles",
"Sections", "paragraphs" "Appendices" and "Schedules" are to Articles, Sections
and paragraphs of, and attachments to this Agreement, each of which is made a
part of this Agreement for all purposes.
2. SALE AND TRANSFER OF SHARES; CLOSING
2.1 SHARES
Subject to the terms and conditions of this Agreement, at the Closing,
Seller shall sell and transfer the Shares to Buyer, and Buyer shall purchase the
Shares from Seller.
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2.2 CONSIDERATION
In consideration for (i) the purchase of the Shares, (ii) the granting of
the right to continue to use the Tradename pursuant to the Tradename Use
Agreement, and (iii) any other transactions contemplated hereunder:
(a) TB, the Buyer, the Subsidiaries and the other Releasors hereby
irrevocably, jointly and severally, knowingly and voluntarily, fully and
forever, release and discharge Seller, and the other Released Parties from any
and all Liabilities and Proceedings (whether or not a Proceeding has been
commenced), which Releasors may have had or may now or hereafter have or claim
or otherwise assert against or with respect to any one or more of the Released
Parties for, upon or by reason of any matter, cause or thing whatsoever at any
time on or before the date of this Agreement, including, without limitation, any
claim relating to, referring to, arising out of, or in connection with (i) the
Account Payable Obligations, (ii) the condition or value of the stock, financial
statements, general ledgers, books of accounting, balances, capitalization,
equity holdings, and any and all of the assets and Liabilities of the
Subsidiaries, (iii) any and all Contracts, agreements, understandings or
relationships of any the Released Parties with any of the Releasors, (iv) any
and all rights or entitlements as a shareholder, officer, director, employee,
agent, creditor or otherwise of the Released Parties, as may have been at any
time applicable to Releasors, (v) the Subsidiaries or their respective
operations or Seller's ownership of the Company or the Subsidiaries, or (vi) any
and all other dealings between or among the Parties, or any other claims,
demands and Liabilities arising under any Legal Requirement. The foregoing
release does not extend to any obligations established by this Agreement. TB,
Buyer and the Subsidiaries further agree to execute on the Closing Date a
general release in the form attached hereto as Appendix A (the "General
Release").
(b) TB, Buyer and the Subsidiaries hereby agree that (i) any
Liabilities, Proceedings and Account Payable Obligations released and discharged
pursuant to the terms of Section 2.2(a) above shall expressly include any and
all of Seller's Account Payable Obligations and any and all Liabilities related
thereto and (ii) the execution of this Agreement by TB, Buyer and the
Subsidiaries shall constitute TB's, Buyer's and the Subsidiaries' express,
irrevocable and unconditional consent to such release and discharge.
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(c) Buyer and the Subsidiaries shall, jointly and severally indemnify,
defend and hold harmless the Released Parties and each of them, for, from and
against any and all Liabilities (whether or not a Proceeding has been commenced)
and Proceedings directly or indirectly arising out of or connected in any way
whatsoever with the Account Payable Obligations and/or this Agreement and the
transactions contemplated hereunder. Buyer and the Subsidiaries each
acknowledges and agrees that its indemnity and hold harmless obligations include
but are not limited to the indemnity and hold harmless obligations set forth in
Section 7.3 hereof.
2.3 CLOSING
The Closing shall take place on September 27, 2002. Failure to consummate
the purchase and sale provided for in this Agreement on the date determined by
the previous sentence shall not result in the termination of this Agreement and
shall not relieve any Party of any obligation under this Agreement.
3. CLOSING OBLIGATIONS
3.1 On the Closing Date:
(a) Seller shall deliver to Buyer the documents ("Seller's Closing
Documents") more fully described in Appendix B attached hereto, and
(b) Buyer shall deliver to Seller the documents ("Buyer's Closing
Documents") more fully described in Appendix C attached hereto.
4. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Buyer as follows:
4.1 ORGANIZATION, GOOD STANDING AND ENFORCEABILITY
(a) Seller is duly incorporated, duly organized and validly existing
under the laws of its jurisdiction and has the requisite corporate power to
carry on its businesses as presently conducted, and to perform all its
obligations under this Agreement.
(b) Seller has delivered to Buyer copies of the Organizational
Documents of the Company and Subsidiaries, as currently in effect.
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(c) This Agreement constitutes the legal, valid, and binding
obligation of Seller, enforceable against Seller in accordance with its terms.
4.2 CAPITALIZATION
The Shares represent all of the issued and outstanding shares in the
Company. Seller is and will be on the Closing Date the record and beneficial
owner and holder of the Shares, free and clear of all Encumbrances. All of the
Shares have been duly authorized and validly issued and are fully paid and
nonassessable.
4.3 FEES
Seller represents that there are no finder's fees, brokerage fees or
commissions, or similar related fees payable or reimbursable to any Person by
Seller in connection with this Agreement or the transactions contemplated
hereunder.
5. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to and Seller as follows:
5.1 ORGANIZATION, GOOD STANDING AND ENFORCEABILITY
(a) Buyer is a corporation duly organized, validly existing and in
good standing under the laws of its jurisdiction. Buyer has the necessary power
and authority to enter into and deliver this Agreement and all documents
contemplated hereby, to perform its obligation hereunder and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and all documents contemplated hereby and the consummation of the transactions
contemplated hereby by Buyer shall be duly authorized by all necessary corporate
actions on or prior to the Closing Date.
(b) This Agreement and all documents contemplated hereby have each
been duly and validly authorized, executed and delivered by Buyer and constitute
the legal, valid, and binding obligation of Buyer, enforceable against Buyer in
accordance with their respective terms.
(c) All consents, approvals, authorizations and orders necessary for
the execution, delivery and performance of this Agreement have been obtained. No
permission, approval, determination, consent or waiver by, or any declaration,
filing or registration with, any governmental or regulatory authority is
required in connection with the execution, delivery and performance of this
Agreement.
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(d) There is no legal action, suit, arbitration, governmental
investigation or other legal or administrative proceeding, nor any order, decree
or judgment in progress, pending or in effect, or to the Knowledge of Buyer
threatened, in connection with or relating to the transactions contemplated by
this Agreement, and Buyer does not know or has any reason to be aware of any
basis for the same.
(e) Upon consummation of the transactions contemplated by this
Agreement, Buyer and the Subsidiaries shall have capital sufficient to carry on
their respective businesses and transactions in which they engage and shall be
able to pay their debts as they mature, and shall own property and assets having
a present fair saleable value on a going concern basis greater than the amount
required to pay their then-probable Liabilities (including contingencies).
5.2 DUE DILIGENCE; "AS IS"
(a) Buyer conducted a full due diligence review (the "Due Diligence
Review") with respect to all matters associated with the Company, the
Subsidiaries, the foreign subsidiaries (including the U.S.A. Subsidiaries as
defined in Section 8 (e) below, all such foreign and U.S.A. Subsidiaries
hereinafter referred to as the "Foreign Subsidiaries," as such are more fully
described in Appendix D attached hereto and the transactions contemplated by
this Agreement, including but not limited to (i) the completion by Buyer, and to
Buyer's complete satisfaction, of the Due Diligence Review, and (ii) a complete
legal and financial review of the Company and the Subsidiaries. Buyer further
represents that, through TB's role as Chief Operating Officer, Group President
and manager of the Subsidiaries for over one (1) year or otherwise, Buyer and
its legal and financial advisors have had, to their complete satisfaction, full
and free access to the Company's and Subsidiaries' personnel, properties,
Contracts, books and records, tax filings including any and all other documents
and data deemed necessary by Buyer.
(b) Buyer acknowledges and accepts that the purchase of the Shares as
contemplated by this Agreement shall imply the transfer of the Company (and
thereby the Foreign Subsidiaries, the Subsidiaries and their respective assets
and Liabilities, known and unknown) "as is", with all assets and Liabilities as
they stand on the Closing Date, regardless of value or condition, and that (i)
none of the Seller's representations and warranties included herein shall limit
in any way the meaning of the term "as is" as used herein, and (ii) Seller does
not furnish any representation or warranty other than the ones provided in this
Agreement.
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5.3 ORGANIZATIONAL DOCUMENTS AND CORPORATE BOOKS
Buyer is in possession of all the corporate books and records of the
Company and the Subsidiaries as such may be required for the purpose of
continuing the business of the Company and the Subsidiaries as such is presently
being conducted.
5.4 NO ADDITIONAL REPRESENTATIONS AND WARRANTIES FROM SELLER
Buyer hereby acknowledges that, as of and up to the Closing Date, TB is the
Chief Operating Officer, Group President and manager of the Subsidiaries and
managed the business and operations of the Subsidiaries for over one (1) year.
By virtue of the relationship between Buyer, the Subsidiaries, the Company and
TB, Buyer has full Knowledge of all aspects and issues, whether legal, financial
or otherwise, associated with the business and operations of the Company and the
Subsidiaries, and does not require any further representations and/or warranties
whatsoever from Seller other than those representations and warranties made in
Article 4 of this Agreement. Buyer further represents and warrants that it has
full Knowledge as of the Closing Date of any and all issues, including
Liabilities of the Company and the Subsidiaries and existing Proceedings against
the Company and the Subsidiaries, which could have a Material Adverse Effect on
the Company and/or Subsidiaries and/or their business and operations.
5.5 NO PROHIBITION
Neither the consummation nor the performance of the terms of this Agreement
shall, directly or indirectly (with or without notice or lapse of time)
contravene, or cause Buyer, Seller, the Company or the Subsidiaries to suffer
any Material Adverse Effect under (i) any applicable Legal Requirement or Order,
or (ii) any Legal Requirement or Order that has been published, introduced, or
otherwise formally proposed by or before any Governmental Body.
5.6 FEES
Buyer represents that there are no finder's fees, brokerage fees or
commissions, or similar related fees payable or reimbursable to any Person by
Buyer in connection with this Agreement or the transactions contemplated
hereunder.
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6. REPRESENTATIONS AND WARRANTIES OF TB
6.1 TB represents and warrants to Seller, the Company, Buyer and the
Subsidiaries that, as the Chief Operating Officer, Group President and manager
of the Subsidiaries' business for over one (1) year, (i) TB is fully aware of
all aspects and issues, whether legal, financial or otherwise, associated with
the business and operations of the Subsidiaries, (ii) that, as of the Closing
Date, TB has full Knowledge of any and all issues, including Liabilities of the
Subsidiaries and existing Proceedings against the Subsidiaries, which could have
a Material Adverse Effect on the Subsidiaries and/or their business and
operations, that (iii) TB and/or his advisors thoroughly completed the Due
Diligence Review to their full satisfaction, and that (iv) TB hereby
acknowledges and agrees to the sale and purchase of the Shares and transfer of
the Company and the Subsidiaries contemplated by this Agreement on an "as is"
basis.
6.2 TB represents that there are no finder's fees, brokerage fees,
commissions or other similar related fees payable or reimbursable to any Person
by TB (and, for purpose of this Section 6.2, payable by the Subsidiaries) in
connection with this Agreement and the transactions contemplated hereunder.
7. INDEMNIFICATION; REMEDIES; RELEASE
7.1 SURVIVAL; RIGHT TO INDEMNIFICATION
All representations, warranties, covenants, and obligations in this
Agreement and any other certificate or document delivered pursuant to this
Agreement shall survive the Closing Date. The right to indemnification, payment
of damages or other remedy based on such representations, warranties, covenants,
and obligations shall not be affected by any investigation conducted with
respect to, or any Knowledge acquired (or capable of having been acquired) at
any time, whether before or after the execution and delivery of this Agreement
or the Closing Date, with respect to the accuracy or inaccuracy of or compliance
with, any such representation, warranty, covenant, or obligation. The waiver of
any condition based on the accuracy of any representation or warranty, or on the
performance of or compliance with any covenant or obligation, shall not affect
the right to indemnification, payment of damages, or other remedy based on such
representations, warranties, covenants, and obligations.
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7.2 INDEMNIFICATION BY SELLER; NO LIABILITIES
Seller shall indemnify and hold harmless Buyer and its representatives,
equity owners, controlling persons and Affiliates (collectively with Buyer, the
"Buyer Indemnified Persons") for, and shall pay to the Buyer Indemnified Persons
the amount of, any Loss arising, directly or indirectly, from or in connection
with:
(a) any breach of any representation or warranty made by Seller in
this Agreement or in any certificate delivered by Seller pursuant to this
Agreement;
(b) any breach by Seller of any covenant or obligation of Seller in
this Agreement; and
(c) any and all Proceedings, demands or assessments, costs and
expenses incidental to any of the foregoing matters set forth in Section 7.2 (a)
and (b).
The remedies provided in this Section 7.2 shall be exclusive and in limitation
of any other remedies that might otherwise be available to the Buyer Indemnified
Persons.
7.3 INDEMNIFICATION BY BUYER AND SUBSIDIARIES
7.3.1 Buyer and Subsidiaries, jointly and severally, shall indemnify and
hold harmless Seller, and each of its respective representatives, equity owners,
controlling persons, and Affiliates (collectively with Seller, the "Seller
Indemnified Persons"), and shall pay to the Seller Indemnified Persons the
amount of any Loss arising, directly or indirectly, from or in connection with:
(a) any breach of any representation or warranty made by Buyer or TB
in this Agreement or in any certificate delivered by Buyer pursuant to this
Agreement;
(b) any breach by Buyer, Subsidiaries or TB of any covenant or
obligation of Buyer, Subsidiaries or TB in this Agreement;
(c) any Liabilities of the Company or the Subsidiaries whether prior
to, on or after the Closing Date; and
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(d) any and all Proceedings, demands or assessments, and costs and
expenses incidental to any of the foregoing matters set forth in Section 7.3.1
(a) through (c).
7.3.2 With respect to the matters for which any Buyer Indemnified Person is
required to provide indemnification pursuant to Section 7.3, a Buyer Indemnified
Person shall not have, and shall not be entitled to exercise or assert, or
attempt to exercise or assert, any right of contribution or right of indemnity
or any other right or remedy against any Seller Indemnified Person.
7.3.3 Notwithstanding anything to the contrary contained in this Agreement
or otherwise (including, without limitation, the terms of the General Release),
(a) in the event that any Seller Indemnified Person becomes liable to
any Buyer Indemnified Person, whether under Section 7.2 or otherwise, in no
event shall the aggregate amount of such liability of the Seller Indemnified
Persons (including but not limited to any and all Liabilities of Seller
Indemnified Persons for costs, expenses and attorneys' fees) exceed the amount
of US$50,000.00 (Fifty Thousand U.S.A. Dollars).
(b) In the event that any Buyer Indemnified Person becomes liable to
any Seller Indemnified Person, whether under Section 7.3 or otherwise, the
aggregate amount of such liability of the Buyer Indemnified Persons (including
but not limited to any and all Liabilities of Buyer Indemnified Persons for
costs, expenses and attorneys' fees) shall not be subject to any maximum amount.
8. COVENANT NOT TO COMPETE
(a) For a period of seven (7) years from the Closing Date, Buyer, the
Company, the Subsidiaries and TB each agrees that they or he shall not:
(i) directly or indirectly, and whether as a principal, agent,
employee or otherwise, or alone or in association with any Person own,
share in the earnings of, invest in the stock, bonds or other
securities of, manage, operate, finance (whether as a lender, investor
or otherwise), Control, participate in the ownership, management,
operation, or Control of, be employed by, associated with, or in any
manner connected with, lend money to, render services or advice to, be
engaged or employed by, or take part in, or, consult or advise, any
other Person that is engaged in any business that the Seller or any of
its respective Affiliates conduct as of the Closing Date within the
U.S.A.;
15
(ii) directly or indirectly: (A) cause or induce, or attempt to
cause or induce, any present or future employee of Seller, or any of
its Affiliates to terminate his or her employment with Seller or such
Affiliate as such employment exists following the Closing Date; (B) in
any way interfere with the relationship between Seller or any such
Affiliate and any such employee; (C) employ, or otherwise engage as an
employee, independent contractor, or otherwise, any employee of Seller
or any such Affiliate; or (D) solicit the business of any Person known
to be a customer of Seller or any of its Affiliates.
Each of the obligations set out in Section 8 (a) is severable and
independent so that if Section 8 (a) or any part or provision of it is
unenforceable then that part shall be deemed eliminated or modified to the
minimum extent necessary to make this Agreement or that part enforceable.
(b) Buyer, the Company, Subsidiaries and TB each recognizes,
acknowledges and agrees that if Buyer, the Company, Subsidiaries or TB breach
any of the covenants, duties or obligations set forth in Section 8 (a), Seller,
or any of its Affiliates would encounter extreme difficulty in attempting to
prove the actual amount of damages suffered by them as a result of such breach,
and that Seller, or any of its respective Affiliates would not be reasonably or
adequately compensated in damages in any action at law. In addition to any other
remedy Seller, or any of its Affiliates may have at law, in equity, by statute
or otherwise, if Buyer, the Company, Subsidiaries or TB breach any of their
covenants, duties or obligation set forth in Section 8(a), Seller, or any of its
Affiliates shall be entitled to seek and receive temporary, preliminary and
permanent injunctive and other equitable relief to enforce any of the rights of
Seller, or any of its Affiliates without the necessity of proving the amount of
any actual damage resulting therefrom; provided, however, that nothing contained
herein shall be deemed or construed in any manner whatsoever as a waiver by
Seller, or any of its Affiliates of any of the rights that they may have against
Buyer, the Company, Subsidiaries or TB at law, equity, by statute or otherwise
arising out of, in connection with or resulting from the breach by Buyer, the
Company, Subsidiaries or TB of any of their covenants, agreements, duties or
obligations under this Agreement.
(c) Buyer, the Company, Subsidiaries and TB each acknowledges that:
(i) the covenants given in Section 8(a) are material to Seller's
decision to enter into this Agreement; and
16
(ii) the restraints contained in Section 8 (a) are fair and
reasonable regarding the subject matter, area and duration and are
reasonably required by Seller, or any of its Affiliates to protect
their respective business, financial and proprietary interests.
(d) Buyer, the Company, Subsidiaries and TB hereby acknowledge that,
except as expressly set forth in the Tradename Use Agreement, nothing in this
Agreement is intended to grant a license or any rights of any nature whatsoever
to any of the intellectual property rights of Seller or any of its Affiliates,
which include, but are not limited to, any of their patents, mask work rights,
trademarks, trade names, service marks, logos, copyrights, derivatives, software
or any other intellectual property rights.
(e) Buyer and TB hereby agree that immediately following the Closing
Date and without any delay, they (i) shall proceed to change the Company's name,
including any and all of the Company's subsidiaries' organized and existing
under the law of the U.S.A. (the "U.S.A. Subsidiaries") and containing the
Tradename or any part thereof in their corporate name, so that the new corporate
name of any such U.S.A. Subsidiaries shall not include in any way or manner
whatsoever, whether directly or indirectly, any reference to the Tradename, and
(ii) shall take any and all necessary additional steps to avoid any possibility
of Buyer, TB, the U.S.A. Subsidiaries and/or the Company (as renamed pursuant to
the terms of this provision) being considered in any way or manner whatsoever,
as an agent, legal representative, partner or joint venturer of Seller.
9. TERMINATION
The Parties agree that this Agreement is not subject to termination and
that the non-performance by any of the Parties of any of the obligations imposed
on them shall not give rise to any of the other Parties' right to terminate this
Agreement, which right is hereby expressly waived by the Parties. In the event
of such non-performance, strict compliance with the terms of this Agreement may
be demanded together with the recovery of any damages otherwise sustained as a
consequence of such non-performance.
10. OTHER TERMS
10.1 EXPENSES; COSTS AND FEES
Except as otherwise expressly provided in this Agreement, the Parties shall
bear their respective expenses, costs and fees incurred in connection with the
preparation, execution, and performance of this Agreement.
17
10.2 CONFIDENTIALITY
(a) The Parties undertake that they shall treat as strictly
confidential all information received or obtained by them or their employees,
agents or advisers as a result of entering into or performing this Agreement
including information relating to the provisions of this Agreement, the
negotiations leading up to this Agreement or the subject matter of this
Agreement, and subject to the provisions of Section 10.2 (b) that they shall not
at any time hereafter make use of or disclose or divulge to any Person any such
information and shall use their best efforts to prevent the publication or
disclosure of any such information.
(b) The restrictions contained in Section 10.2 (a) shall not apply so
as to prevent Seller from making any disclosure pursuant to any Legal
Requirement or required by any Governmental Body, including any securities laws
or regulations to which the Seller is subject or from making any disclosure to
any professional advisors for the purpose of obtaining advice and/or opinion
(provided always that the provisions of this Section 10.2 shall apply to such
professional advisors) nor shall the restrictions apply in respect of any
information which comes into the public domain otherwise than by a breach of
this Section 10.2.
10.3 NOTICES
All notices, consents, waivers, and other communications required to be
given under this Agreement must be in writing and shall be deemed to have been
duly given when actually received, and may be (i) delivered by hand (with
written confirmation of receipt), (ii) delivered by registered letter (with
return receipt), (iii) sent by facsimile or e-mail with proper evidence of
receipt, or (iv) sent by an internationally recognized overnight delivery
service (receipt requested), in each case to the appropriate addresses set forth
below (or to such other address as either of the Parties may designate by notice
to the other Party):
(a) If to Seller:
Attention: RURAL/METRO CORPORATION (DELAWARE)
Xxxx X. Xxxxx, III
Address: Legal Department
0000 Xxxx Xxxxxx Xxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Facsimile No.: 000-000-0000
E-mail Address: xxxx_xxxxx@xxxxxx.xxx
18
With a copy to:
Attention: SQUIRE, XXXXXXX & XXXXXXX
Xxxx X. Xxxxx
Address 00 X. Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Facsimile No.: 602-253.8129
E-mail Address: xxxxxx@xxx.xxx
(b) If to Buyer:
Attention: ALASIO BUSINESS INC.
Mr. Diego Licio
Address: Plaza Independencia 811
Montevideo
Republic of Uruguay
Facsimile No.: 0058-82-902-5454
E-mail Address: dlicio@xxxxx.xxx.xx
(c) If to Subsidiaries:
Attention: RURAL/METRO OF ARGENTINA S.A.
Xx. Xxxxxx Xxxxxxx Xxxxxxxxx
Address: Bvd. Illia 000, 0xx, Xxxxx
Xxxx xx Xxxxxxx - Xxxxxxxx of Cordoba
Republic of Argentina
Facsimile No.: 0054-351-446-6688 extension 1541
E-mail Address: xxxxxxxxx@xxxxx.xxx.xxx
Attention: ECCO S.A.
Xx. Xxxxxx Xxxxxxx Xxxxxxxxx
Address: Rioja 0000, 0xx Xxxxx
Xxxx xx Xxxxxxx, Xxxxxxxx of Santa Fe
Republic of Argentina
Facsimile No.: 0054-351-446-6688 extension 1541
E-mail Address: xxxxxxxxx@xxxxx.xxx.xxx
Attention: RURAL/METRO INVERSORA S.R.L.
Xx. Xxxxxx Xxxxxxx Xxxxxxxxx
Address: Bvd. Illia 000, 0xx, Xxxxx
Xxxx xx Xxxxxxx - Xxxxxxxx of Cordoba
Republic of Argentina
Facsimile No.: 0054-351-446-6688 extension 1541
E-mail Address: xxxxxxxxx@xxxxx.xxx.xxx
19
Attention: SAMTI SALA MOVIL DE TERAPIA INTENSIVA S.R.L.
Xx. Xxxxxx Xxxxxxx Xxxxxxxxx
Address: Bvd. Illia 000, 0xx, Xxxxx
Xxxx xx Xxxxxxx - Xxxxxxxx of Cordoba
Republic of Argentina
Facsimile No.: 0054-351-446-6688 extension 1541
E-mail Address: xxxxxxxxx@xxxxx.xxx.xxx
Attention: INSTITUTO DEL INVESTIGACIONES DEL CORAZON
"INICOR" S.A.
Xx. Xxxxxx Xxxxxxx Xxxxxxxxx
Address: Bvd. Illia 000, 0xx, Xxxxx
Xxxx xx Xxxxxxx - Xxxxxxxx of Cordoba
Republic of Argentina
Facsimile No.: 0054-351-446-6688 extension 1541
E-mail Address: xxxxxxxxx@xxxxx.xxx.xxx
Attention: SCREEN MEDICA S.A.
Xx. Xxxxxx Xxxxxxx Xxxxxxxxx
Address: Bvd. Illia 000, 0xx, Xxxxx
Xxxx xx Xxxxxxx - Xxxxxxxx of Cordoba
Republic of Argentina
Facsimile No.: 0054-351-446-6688 extension 1541
E-mail Address: xxxxxxxxx@xxxxx.xxx.xxx
(d) If to TB:
Attention: XXXXXX X. XXXXXXXXX
Address: Independencia 000, 00xx Xxxxx, Xxx. "X"
Xxxx xx Xxxxxxx - Xxxxxxxx of Cordoba
Republic of Argentina
Facsimile No.: 0054-351-446-6688 extension 1541
E-mail Address: xxxxxxxxx@xxxxx.xxx.xxx
10.4 GOVERNING LAW AND JURISDICTION; JURY WAIVER; APPOINTMENT OF AGENT FOR
SERVICE OF PROCESS
(a) This Agreement shall be governed by and construed in accordance
with the laws of the State of Arizona without regard to its principles of
conflict of laws.
(b) Buyer, TB, the Subsidiaries and/or any other Person or entity
claiming rights hereunder, hereby consent that any suit or other legal
proceeding initiated by Buyer, TB, the Subsidiaries and/or any Person or entity
claiming any right under this Agreement against Seller shall be brought solely
in the courts located in Maricopa County, State of Arizona, U.S.A.
20
(c) Buyer, TB, and the Subsidiaries hereby waives all right to trial
by jury in any court, suit, action, or proceeding arising out of this Agreement
or related to any of the transactions contemplated hereunder.
(d) Buyer, TB and the Subsidiaries hereby irrevocably designate,
appoint, authorize and empower CT Corporation System with offices currently
located at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Process Agent"), as
his/its agent to receive on behalf of himself/itself and his/its property,
service of copies of the summons and complaint and any other process which may
be served in any suit, action or proceeding brought in the courts located in
Maricopa County, State of Arizona, U.S.A.. Such service may be made by mailing
or delivering a copy of such process to the relevant party in care of the
Process Agent at its address specified above, and each of TB, the Buyer, and the
Subsidiaries hereby authorize and direct the Process Agent to accept such
service on his/its behalf.
10.5 WAIVER
Neither the failure nor any delay by any of the Parties in exercising any
right, power, or privilege under this Agreement or the documents referred to in
this Agreement shall operate as a waiver of such right, power, or privilege, and
no single or partial exercise of any such right, power, or privilege shall
preclude any other or further exercise of such right, power, or privilege or the
exercise of any other right, power, or privilege. To the maximum extent
permitted by applicable law, (i) no claim or right arising out of this Agreement
or the documents referred to in this Agreement can be discharged by one of the
Parties, in whole or in part, by a waiver or renunciation of the claim or right
unless in writing signed by the other Party; (ii) no waiver that may be given by
a Party shall be applicable except in the specific instance for which it is
given; and (iii) no notice to or demand on one of the Parties shall be deemed to
be a waiver of any obligation of such Party or of the right of the Party giving
such notice or demand to take further action without notice or demand as
provided in this Agreement or the documents referred to in this Agreement.
10.6 ENTIRE AGREEMENT
This Agreement supersedes any and all prior agreements among the Parties
with respect to its subject matter and this Agreement, including the Recitals,
constitutes a complete and exclusive statement of the terms and conditions of
the agreement between the Parties with respect to its subject matter.
21
10.7 ASSIGNMENT, SUCCESSORS, AND NO THIRD-PARTY RIGHT
None of the Parties may assign or otherwise transfer any of its rights
under this Agreement without the express prior written consent of the other
Parties, and any attempted assignment without such consent shall be null and
void. Nothing expressed or referred to in this Agreement shall be construed to
give any Person, other than the Parties, any legal or equitable right, remedy,
or claim under or with respect to this Agreement or any provision of this
Agreement. This Agreement and all of its provisions and conditions are for the
sole and exclusive benefit of the Parties to this Agreement. This Agreement
shall apply to, be binding in all respects upon, and inure to the sole benefit
of the respective heirs, executors, administrators, successors and permitted
assigns of the Parties, the other Releasors, the other Released Parties, the
other Seller Indemnified Persons and the other Buyer Indemnified Persons.
10.8 HEADINGS
The headings of the various sections and paragraphs of this Agreement are
provided for convenience of reference only and shall not be deemed to be part of
this Agreement nor affect its construction or interpretation.
10.9 COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
10.10 FURTHER ASSURANCES
The Parties agree (a) to furnish upon request to each other such further
information, (b) to execute and deliver to each other such other documents, and
(c) to do such other acts and things as may be reasonably requested by another
Party for the purpose of carrying out the intent of this Agreement and the
contemplated transactions.
10.11 USE OF THE ENGLISH LANGUAGE
This Agreement has been executed in the English language and the Parties
hereby expressly agree that the English version of this Agreement shall, at all
time and for all purposes, control and govern the meaning and interpretation of
the matter set forth herein, and that any Spanish version of this Agreement has
been prepared for Buyer's and Subsidiaries' convenience only.
22
IN WITNESS WHEREOF, the Parties executed this Agreement in six (6)
counterparts, in the City of Phoenix, Arizona, U.S.A., on this 27th day of
September 2002.
By: Rural/Metro Corporation By: Alasio Business, Inc.
/s/ Xxxx X. Xxxxx, III /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------ ------------------------------------
Name: Xxxx X. Xxxxx, III Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President and Title: Attorney in Fact
General Counsel
By: Rural/Metro of Argentina S.A. By: ECCO S.A.
/s/ Xxxxxx X. Xxxxxxxxx /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------ ------------------------------------
Name: Xxxxxx X. Xxxxxxxxx Name: Xxxxxx X. Xxxxxxxxx
Title: President Title: President
By: Rural/Metro Inversora S.R.L. By: Samti Sala Movil
de Terapia Intensiva S.R.L.
/s/ Xxxxxx X. Xxxxxxxxx /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------ ------------------------------------
Name: Xxxxxx X. Xxxxxxxxx Name: Xxxxxx X. Xxxxxxxxx
Title: Manager Title: Manager
By: Instituto del Investigaciones
del Corazon "Inicor" S.A. By: Screen Medica S.A.
/s/ Xxxxxx X. Xxxxxxxxx /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------ ------------------------------------
Name: Xxxxxx X. Xxxxxxxxx Name: Xxxxxx X. Xxxxxxxxx
Title: President Title: President
By: Rural/Metro International, Inc. By: Xxxxxx X. Xxxxxxxxx
/s/ Xxxx X. Xxxxx, III /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------ ------------------------------------
Name: Xxxx X. Xxxxx, III Name: Xxxxxx X. Xxxxxxxxx
Title: Secretary
23
APPENDIX A
FORM OF GENERAL RELEASE
For good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, ALASIO BUSINESS INC., a company duly organized and existing
under the laws of British Virgin Islands ("Alasio"), XX. XXXXXX X. XXXXXXXXX, an
individual ("Xxxxxxxxx"), RURAL/METRO OF ARGENTINA S.A., ECCO S.A., RURAL/METRO
INVERSORA S.R.L., SAMTI SALA MOVIL DE TERAPIA INTENSIVA S.R.L., INSTITUTO DE
INVESTIGACIONES DEL CORAZON "INICOR" S.A., and SCREEN MEDICA S.A., all companies
duly organized and existing under the laws of the Republic of Argentina
(collectively referred to as the "Companies"), on behalf of themselves (Alasio,
Xxxxxxxxx and the Companies collectively referred to as the "Releasing
Entities") and each of their respective past, present and future Affiliates
(excluding the Released Parties), and the respective past, present and future
officers, directors, employees, servants, stockholders, agents, representatives,
attorneys, insurers, lenders, creditors, subsidiaries, parents, divisions and
other corporate affiliates of each of the foregoing, and the beneficiaries,
heirs, executors, administrators, predecessors, successors and assigns of each
of the foregoing, and all Persons or entities acting by, through, under, or in
concert with any of the foregoing (collectively, the "Releasors"), hereby
irrevocably, jointly and severally, knowingly and voluntarily, fully and
forever, release and discharge:
(a) RURAL/METRO CORPORATION, a company duly organized and existing under
the laws of the State of Delaware, United States of America, (the
"Entity Releasee"); and
(b) each of the Entity Releasee's past, present and future Affiliates
(excluding the Releasing Entities), and the respective past, present
and future officers, directors, employees, servants, stockholders,
agents, representatives, attorneys, insurers, lenders, creditors,
subsidiaries, parents, divisions and other corporate affiliates of
each of the foregoing, and the beneficiaries, heirs, executors,
administrators, predecessors, successors and assigns of each of the
foregoing, and all Persons or entities acting by, through, under, or
in concert with any of the foregoing (collectively with the Entity
Releasee, the "Released Parties"),
from any and all Liabilities and Proceedings, which Releasors may have had or
may now or hereafter have or claim or otherwise assert against or with respect
to any one or more of the Released Parties for, upon or by reason of any matter,
cause or thing whatsoever at any time on or before the date of this Agreement,
including, without limitation, any claim relating to, referring to, arising out
of, or in connection with (i) the Account Payable Obligations, (ii) the
condition or value of the stock, financial statements, general ledgers, books of
accounting, balances, capitalization, equity holdings, and any and all of the
assets, operations, business or properties and Liabilities of the Companies,
(iii) any and all Contracts, agreements, understandings or relationships of any
the Released Parties with any of the Releasors, (iv) any and all rights or
entitlements as a shareholder, officer, director, employee, agent, creditor or
otherwise of the Released Parties, as may have been at any time applicable to
Releasors, (v) the Companies or their respective operations or the Entity
Releasee's ownership of the Companies, or (vi) any and all other dealings
between or among the parties, or any other claims, demands and Liabilities
arising under any Legal Requirement, including, but not limited to, breach of
contract, express or implied; slander, libel, or defamation of any kind or
nature; tortious interference with contract; public policy torts of any kind or
nature; breach of the covenant of good faith and fair dealing, express or
implied; promissory estoppel; fraudulent concealment of material facts; breach
of warranty, express or implied; breach of implied warranty of merchantability
24
or fitness for a particular purpose; unjust enrichment; tort claims of any kind
whatsoever; any other common-law or statutory claims whatsoever; compensatory,
consequential or economic damages of any kind; liquidated or statutory damages;
exemplary or punitive damages; litigation expenses; attorneys' fees; and any and
all other damages directly or indirectly arising out of or connected in any way
whatsoever with such Liabilities or Proceedings.
For purposes of this General Release, the following definitions apply:
"ACCOUNT PAYABLE OBLIGATIONS" shall mean certain Liabilities, including without
limitation any net inter-company payable balances to the Subsidiaries as of the
date of this Agreement;
"AFFILIATE" shall mean any Person, which, directly or indirectly, through one or
more intermediaries, has control over or is under the control of one of the
Parties.
"ARGENTINEAN GAAP" shall mean generally accepted accounting principles for
financial reporting in the Republic of Argentina.
"CONTRACT" shall mean any contract, agreement, commitment, understanding, lease,
license, franchise, warranty, guaranty, mortgage, note, bond, or other
instrument or consensual obligation (whether written or oral and whether express
or implied).
"GOVERNMENTAL BODY" shall mean any:
(i) nation, region, state, county, city, town, village, district, or other
jurisdiction;
(ii) federal, state, local, municipal, foreign or other government;
(iii) governmental or quasi-governmental authority of any nature (including
any governmental agency, branch, department, or other entity and any
court or other tribunal);
(iv) multinational organization (to the exclusion of multinational
corporation or similar legal entity);
(v) body exercising, or entitled to exercise any administrative,
executive, judicial, legislative, policy, regulatory, or taxing
authority or power of any nature; and
(vi) official of any of the foregoing.
"LEGAL REQUIREMENT" shall mean any constitution, law, statute, treaty, rule,
regulation, ordinance, binding case law or principle of common law, approval or
Order of any Governmental Body, and any Contract with any Governmental Body
relating to compliance with any of the foregoing.
"LIABILITIES" shall mean all manner and nature whatsoever of any past, present
or future claims, costs, losses, liabilities, obligations, deficiencies,
diminutions of value, expense, debts, sums of money, accounts, reckonings,
bonds, bills, covenants, contracts, agreements, promises, damages, actions,
proceedings, causes of action or suits, judgments, executions and demands,
including without limitation unpaid taxes, fees, levies, duties, tariffs, fines,
penalties and other charges of any kind imposed by any Governmental Body,
whether any of the foregoing arise in law or at equity, whether any of the
foregoing are known or unknown, absolute, accrued, contingent, xxxxxx, inchoate,
or otherwise, due or to become due, and whether any of the foregoing are or are
not required to be reflected on a balance sheet prepared in accordance with (i)
U.S. GAAP or (ii) Argentinean GAAP.
"ORDER" shall mean any order, injunction, judgement, decree, ruling, assessment
or arbitration award of any Governmental Body or arbitrator.
25
"PERSON" shall refer to an individual, or an entity, including a corporation,
share company, limited liability company, partnership, trust, association,
Governmental Body or any other body with legal personality separate from its
equity holders or members.
"PROCEEDING" shall mean any action, arbitration, audit, hearing, investigation,
litigation, or suit (whether civil, criminal, administrative, judicial or
investigative, whether formal or informal, and whether public or private)
commenced, brought, conducted or heard by or before, or otherwise involving any
Governmental Body or arbitrator.
"U.S. GAAP" shall mean generally accepted accounting principles for financial
reporting in the United States of America.
The Releasing Entities (excluding Xxxxxxxxx) hereby irrevocably, jointly
and severally, knowingly and voluntarily, agree to indemnify, defend and hold
harmless the Released Parties and each of them, for, from and against any and
all Liabilities (whether or not a Proceeding has been commenced) (i) arising
from any matter released herein; and/or (ii) in connection with any Proceeding
contrary to the provisions of this General Release. In this connection, the
Releasing Entities agree that this General Release may be pleaded as a defense
and/or a cross-complaint, counterclaim, cross-claim or third-party complaint in,
and may serve as the basis for an abatement of or injunction against, each such
lawsuit or proceeding.
The Releasing Entities hereby agree that if Releasors, or any Person acting
on behalf of, or in a representative capacity for, Releasors, initiates any
action, proceeding or suit against any Released Party that challenges the
legality, validity or enforceability of any of the terms or provisions of this
General Release, Releasing Entities (excluding Xxxxxxxxx) shall reimburse such
Released Party, if and to the extent such Released Party enforces or defends
this General Release or such Released Party's rights hereunder against such
challenge, for all legal and other costs and expenses incurred by such Released
Party and for all payments made by such Released Party, if any, in connection
with or in satisfaction of any judgment, decree or settlement resulting from any
such action, proceeding or suit.
This General Release is not to be construed as an admission of liability on
the part of any Released Party. This General Release may be modified only by
written agreement of the Releasing Entities and the Entity Releasee. The
provisions of this General Release shall be severable in the event that any
provision hereof (including any provision within a single paragraph or sentence)
is held by a court of competent jurisdiction to be invalid, void or otherwise
unenforceable, and the remaining provisions shall remain enforceable to the
fullest extent permitted by law. This General Release shall be governed by and
construed in accordance with the domestic substantive laws of the State of
Arizona.
This General Release shall be governed by and construed in accordance with the
laws of the State of Arizona without regard to its principles of conflict of
laws. Releasors and/or any other Person claiming rights hereunder, hereby
consent that any suit or other legal proceeding initiated by any of Releasors
and/or any Person claiming any right under this General Release against any
Released Parties shall be brought solely in the courts located in Maricopa
County, State of Arizona, U.S.A. Each of Releasors hereby waives all right to
trial by jury in any court, suit, action, or proceeding arising out of this
General Release or related to any of the transactions contemplated hereunder.
Each of Releasors hereby irrevocably designate, appoint, authorize and empower
CT Corporation System with offices currently located at 0000 Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 (the "Process Agent"), as his/its agent to receive on behalf of
himself/itself and his/its property, service of copies of the summons and
complaint and any other process which may be served in any suit, action or
proceeding brought in the courts located in Maricopa County, State of Arizona,
U.S.A. Such service may be made by mailing or delivering a copy of such process
26
to the relevant Party in care of the Process Agent at its address specified
above, and each of the Releasing Entities hereby authorizes and directs the
Process Agent to accept such service on his/its behalf.
Releasors expressly assume the risk of any mistake of fact in connection
with the true facts involved in the foregoing matters, and with respect to any
facts which are now unknown to Releasors or to Releasors' agents or
representatives relating thereto.
In executing this General Release, Releasors are not relying and have not
relied upon any oral representation or statement made by any Released Party.
Releasors hereby represent and warrant that: (i) Releasors have read each and
every provision of this General Release; (ii) Releasors fully understand the
nature and consequences of the terms of this General Release and agree to be
legally bound by them; (iii) Releasors execute this General Release with full
knowledge of any and all rights which Releasors have and may have; (iv)
Releasors have received or have had the opportunity to receive independent legal
advice from Releasors' attorney with respect to Releasors' rights herein waived;
and (v) Releasors have full and complete authority and legal capacity to execute
this General Release on behalf of themselves or himself and each of Releasors'
Affiliates.
[Intentionally Left Blank]
27
Wherefore, the authorized representatives of the undersigned Releasing Entities
have executed this Agreement as of ___________ __, 2002.
By: Alasio Business Inc. By: Xxxxxx X. Xxxxxxxxx
------------------------------------ ------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Attorney in Fact Name: Xxxxxx X. Xxxxxxxxx
By: Rural/Metro of Argentina S.A. By: ECCO S.A.
------------------------------------ ------------------------------------
Name: Xxxxxx X. Xxxxxxxxx Name: Xxxxxx X. Xxxxxxxxx
Title: President Title: President
By: Rural/Metro Inversora S.R.L. By: Samti Sala Movil
de Terapia Intensiva S.R.L.
------------------------------------ ------------------------------------
Name: Xxxxxx X. Xxxxxxxxx Name: Xxxxxx X. Xxxxxxxxx
Title: Manager Title: Manager
By: Instituto del Investigaciones By: Screen Medica S.A.
del Corazon "Inicor" S.A.
------------------------------------ ------------------------------------
Name: Xxxxxx X. Xxxxxxxxx Name: Xxxxxx X. Xxxxxxxxx
Title: President Title: President
00
XXXXXXXX X
SELLER'S CLOSING DOCUMENTS DELIVERED PURSUANT TO SECTION 3.1 (A)
ANNEX B.1 Stock power and assignment representing the transfer of the Shares of
Rural/Metro International, Inc., duly endorsed in blank.
ANNEX B.2 Board of Directors' Resolution approving the sale of the Shares of
Rural/Metro International, Inc. as adopted by:
* Rural/Metro Corporation (Delaware)
ANNEX B.3 Statutory and other books (and any other papers or documents in its
possession) of:
* Comercial Ecoico, S.A.
* Ecco S.A.
* Line of Duty Ltda.
* Rural/Metro Argentina, L.L.C.
* Rural/Metro of Argentina, Inc.
* Rural/Metro of Argentina S.A.
* Rural/Metro Brasil, L.L.C.
* Rural/Metro of Brasil, Inc.
* Rural/Metro Netherlands Holdings, B.V.
* Rural/Metro International, Inc.
* Rural/Metro Inversora S.R.L.
* Samti Sala Movil S.R.L.
* Screen Medica S.A.
The delivery of all of the above documents shall be evidenced by an
acknowledgement of receipt of such documents.
ANNEX B.4 Revocation of all existing Powers of Attorney from:
* Comercial Ecoico, S.A.
* Line of Duty Ltda.
* Rural/Metro Argentina, L.L.C.
* Rural/Metro of Argentina, Inc.
* Rural/Metro Brasil, L.L.C.
* Rural/Metro of Brasil, Inc.
* Rural/Metro International, Inc.
* Rural/Metro Netherlands Holdings, X.X.
XXXXX X.0 Resignation Letter of each of the Directors, or, as applicable,
Managers, of:
* Comercial Ecoico, S.A.
* Line of Duty Ltda.
* Rural/Metro Argentina, L.L.C.
* Rural/Metro of Argentina, Inc.
* Rural/Metro Brasil, L.L.C.
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* Rural/Metro of Brasil, Inc.
* Rural/Metro International, Inc.
* Rural/Metro Netherlands Holdings, B.V.
ANNEX B.6 Minutes of Shareholders' Meetings held prior to the Closing Date (a)
approving and ratifying the (i) resignation of certain Directors, and
(ii) the actions and duties of such resigning Directors, and (b)
designating the new Directors, as adopted by:
* Ecco S.A.
* Instituto de Investigaciones del Corazon "Inicor" S.A.
* Rural/Metro of Argentina S.A.
* Screen Medica S.A.
ANNEX B.7 Board of Directors' Resolution adopted prior to the Closing Date
revoking all existing Powers of Attorney except for those specified
in such Resolution, as adopted by:
* Ecco S.A.
* Instituto de Investigaciones del Corazon "Inicor" S.A.
* Rural/Metro of Argentina S.A.
* Screen Medica S.A.
ANNEX B.8 Quotaholders' Resolutions adopted prior to the Closing Date (a)
approving and ratifying the (i) resignation of certain Managers, and
(ii) the actions and duties of such Manager, (b) appointing the new
Managers, and (c) revoking all existing Powers of Attorney except for
those specified in such Resolutions, as adopted by:
* Rural/Metro Inversora S.R.L.
* Samti Sala Movil S.R.L.
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APPENDIX C
BUYER'S CLOSING DOCUMENTS DELIVERED PURSUANT TO SECTION 3.1 (B)
ANNEX C.1 Powers of Attorney or Board of Directors or Managers Meetings'
Minutes evidencing the legal authority to execute and deliver the
Stock Purchase Agreement for the signatories of the following
entities:
* Alasio Business Inc.
* Ecco S.A.
* Instituto de Investigaciones del Corazon "Inicor" S.A.
* Rural/Metro Inversora S.R.L.
* Rural/Metro of Argentina S.A.
* Samti Sala Movil SRL.
* Screen Medica S.A.
ANNEX C.2 Board of Directors' Resolution or, as applicable, Quotaholders'
Resolution approving and ratifying the terms and conditions of the
General Release referred to in Section 2.2 (a) of the Stock Purchase
Agreement, as such were adopted, respectively, by:
* Ecco S.A.
* Instituto de Investigaciones del Corazon "Inicor" S.A.;
* Rural/Metro of Argentina S.A.
* Rural/Metro Inversora S.R.L.
* Samti Sala Movil S.R.L.
* Screen Medica S.A.
ANNEX C.3 Minutes of Shareholders' Meetings held on the Closing Date (a)
approving and ratifying the (i) transfer and registration of the
Shares, and (i) resignation of the Board of Directors, (ii) the
actions and duties of the Board of Directors as discharged up to and
as of the Closing Date, (b) electing the new Board of Directors, and
(d) approving the change of the company's (i) registered corporate
office, and (ii) registered corporate name, as adopted by:
* Rural/Metro International, Inc.
ANNEX C.4 Board of Directors' Resolutions (a) acknowledging the transfer of the
Shares, and (b) approving the issuance of new share certificate in
the name of Alasio Business, Inc., as such Board Resolutions were
adopted on the Closing Date by:
* The formerly named "Rural/Metro International, Inc."
(Resolution adopted under the its newly registered corporate
name pursuant to Resolutions adopted as per Annex C.3).
ANNEX C.5 Minutes of Shareholders' Meetings held on the Closing Date (a)
approving and ratifying the (i) resignation of the Board of
Directors, and (ii) the actions and duties of the Board of Directors
as discharged up to and as of the Closing Date, (b) electing the new
Board of Directors, and (c) approving the change of the company's (i)
31
registered corporate office, and (ii) registered corporate name, as
such Resolutions were adopted, respectively, by:
* Rural/Metro of Argentina, Inc.
* Rural/Metro of Brasil, Inc.
ANNEX C.6 Minutes of the Shareholders' Meetings held on the Closing Date, (a)
approving and ratifying the (i) resignation of the Board of
Directors, and (ii) the actions and duties of the Board of Directors
as discharged up to and as of the Closing Date, and (b) electing the
new Board of Directors, as such were adopted, respectively, by:
* Comercial Ecoico, S.A.
* Rural/Metro Netherlands Holdings, B.V.
ANNEX C.7 Quotaholders' Resolutions adopted on the Closing Date (a) approving
and ratifying the (i) resignation of the Managers, and (ii) the
actions and duties of such Managers as discharged up to and as of the
Closing, Date, and (b) approving the change of the company's (i)
registered corporate office, and (ii) registered corporate name, as
adopted, respectively, by
* Rural/Metro Argentina, L.L.C.
* Rural/Metro Brasil, L.L.C.
ANNEX C.8 Quotaholders' Resolutions adopted on the Closing Date (a) approving
and ratifying the (i) resignation of the Manager, and (ii) the
actions and duties of the such Manager as discharged up to and as of
the Closing, and (b) appointing the new Manager, as such Resolutions
were adopted by:
* Line of Duty Ltda.
ANNEX C.9 Minutes of the Shareholders Meetings held on the Closing Date with
respect to the Resolutions adopted at the last Shareholders' Meeting,
ratifying and approving (a) the resignation of certain members of the
Board of Directors, and (ii) the actions and duties of such resigning
Board Members as discharged up to and as of the Closing Date, and (b)
electing new Members to the Board of Directors, as such Minutes were
respectively adopted by:
* Ecco S.A.
* Instituto de Investigaciones del Corazon "Inicor" S.A.
* Rural/Metro of Argentina S.A.
* Screen Medica S.A.
ANNEX C.10 Board of Directors' Resolutions adopted on the Closing Date and
ratifying prior Board's Resolutions revoking all existing Powers of
Attorney, and other Resolutions as adopted by:
* Ecco S.A.
* Instituto de Investigaciones del Corazon "Inicor" S.A.
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* Rural/Metro of Argentina S.A.
* Screen Medica S.A.
ANNEX C.11 Quotaholders or Managers' Resolutions adopted on the Closing Date
and ratifying prior Quotaholders' or Manager's Resolutions approving
and ratifying the (i) resignation of certain Managers as specified in
such Resolutions, (ii) the actions and duties of such Manager as
discharged up to and as of the Closing, and (iii) the revocation of
all existing Powers of Attorney, and other Resolutions, as such
resolutions were adopted by:
* Rural/Metro Inversora Sociedad de Responsabilidad Limitada
* Samti Sala Movil S.R.L.
00
XXXXXXXX X
XXXXXXX XXXXXXXXXXXX
0 - XXXXX/XXXXX XXXXXXXXX, L.L.C.
2 - RURAL/METRO BRASIL, L.L.C.
3 - RURAL/METRO OF ARGENTINA, INC.
4 - RURAL/METRO OF BRASIL, INC.
5 - LINE OF DUTY LTDA.
0 - XXXXXXXXX XXXXXX, X.X.
0 - XXXXX/XXXXX XXXXXXXXXXX HOLDING, B.V.
34
