EXHIBIT 10.27
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of January 8, 1997 (the "Signing Date"),
by and among ALR REPORTING, INC., a Delaware corporation (the "Buyer"), XXXXXXX
XXXXXXX ("Xxxxxxx") and XXXXXX XXXXXXX ("Xxxxxx", and together with XXXXXXX, the
"Sellers").
Preliminary Statement
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Sellers are the sole shareholders of Xxxxx Reporting, Inc., a New York
corporation ("Xxxxx"), Herm Conversion and Duplicating Inc., a New York
corporation ("HCD"), and Twin Brothers Reporting, Inc., a New York corporation
("TBR", and together with Xxxxx and HCD, the "Companies"), as follows:
Xxxxxxx Xxxxxx Total
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Xxxxx 50 50 100 (the Xxxxx Shares)
HCD 50 50 100 (the HCD Shares)
TBR 100 100 200 (the TBR Shares) and
together with the Xxxxx
Shares and the HCD
Shares the Shares);
Buyer desires to acquire from Sellers, and Sellers desire to sell to
Buyer, the Shares, upon the terms and subject to the conditions hereinafter set
forth. Accordingly, in consideration of the premises, the parties agree as
follows:
1. Sale and Purchase of Shares. Upon the terms and subject to the
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conditions hereinafter set forth, at the Closing referred to in Section 3
hereof, each Seller agrees to sell and deliver to the Buyer, and Buyer agrees to
purchase from Sellers, all of the Shares owned by Sellers, free and clear of all
security interests, liens, pledges, claims, mortgages, encumbrances, options and
rights of first refusal (collectively "Liens") against payment of the purchase
price referred to in Section 2 hereof.
2. Purchase Price. The total purchase price (the "Purchase Price") to be
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paid by Buyer for the purchase of the Shares shall be an amount equal to the sum
of (i) $4,473,471 (the "Base Purchase Price") and (ii) the Additional Amount, as
defined in Section 2(b). The portion of the Purchase Price allocable to the
Xxxxx Shares, the HCD Shares and the TBR Shares is 90.4%, 8.8% and .8%,
respectively.
(a) The Buyer shall pay the Base Purchase Price to Sellers as follows:
(1) $2,023,471 in cash (the "Initial Cash Payment") at the Closing.
(2) Five monthly installments of $60,000 payable commencing one month
after Closing, as defined below and a sixth installment of $150,000 payable on
the first anniversary of the Closing (the "Installments, which in the aggregate
total $450,000) and secured as provided herein. A failure to make any such
payment shall result in the acceleration of all Installments due thereafter.
(3) Buyer's secured promissory notes in the aggregate principal amount of
$2,000,000, in the forms annexed hereto as Exhibits A-1 and A-2 (the "Promissory
Notes"). The principal amount of the Promissory Notes, together with interest
thereon at the rate of eight (8%) percent per annum, shall be self-amortizing
and payable in thirty-four (34) equal consecutive monthly installments of
$66,816.02, commencing three months following the date of the Closing (the
"Closing Date") and thereafter on the respective monthly anniversaries of the
Closing Date until the entire principal amount of the Promissory Notes, and
accrued interest thereon, has been paid in full; provided, however, that in the
event Buyer fails to pay principal or interest on the Promissory Notes or
Installment payments when due, and the Buyer fails to cure the default within
ten days after the receipt of a written notice thereof, then the amount due
under the promissory note shall become immediately due and payable, with accrued
interest thereon recalculated assuming a rate of interest (the "Default Rate")
equal to the higher of 12% per annum and 3% per annum over the Prime Rate in
effect from time to time as reported in The Wall Street Journal.
(b) In the event the total gross revenues of the Companies, calculated on
an accrual basis, and work-in-process, calculated on an accrual basis for the
fiscal year commencing January 1, 1997 and ending December 31, 1997 ("Gross
Revenues") (as the same may be adjusted in accordance with the provisions of
Section 7.1(i)(C) hereof), exceeds $4,500,000, the Buyer shall pay the Sellers
(50% to Xxxxxxx and 50% to Xxxxxx) an amount in cash (the "$300,000 Additional
Amount") equal to $300,000. Furthermore, to the extent Gross Revenues exceeds
$4,600,000, the Buyer shall pay the Sellers (50% to Xxxxxxx and 50% to Xxxxxx)
an amount equal to $5,000 for each $100,000 of Gross Revenues in excess of
$4,600,000 ("Incremental Additional Amount which together with the $300,000
Additional Amount, the "Additional Amount"). The Additional Amount shall be
payable to Sellers within 20 days after the computation of Gross Revenues. Such
computation shall be completed no later than March 31, 1998. The Sellers shall
have the opportunity, at their own cost, to review such calculations, provided,
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however, that if it is determined that the amount of actual Gross Revenues is 5%
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or greater of the amount reported by the Companies, the Buyer shall bear the
cost of such review. Anything to the contrary in the foregoing notwithstanding,
in the event of a Prohibited Event occurring prior to December 31, 1997,
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as defined below, Gross Revenues shall be the greater of (X) the actual Gross
Revenues for the fiscal year ending December 31, 1997 and (Y) the Gross Revenues
for the period commencing January 1, 1997 and ending on the Prohibited Event
redetermined on an annualized basis. As used herein, a "Prohibited Event" means
(i) the sale (involving stock or assets), liquidation, dissolution or other
transaction (including, without limitation, a merger or corporate
reorganization) as a result of which the identity of the Companies as separate
entities is no longer maintained or the nature of the business conducted by the
Companies prior to the Signing Date terminates or substantially terminates, (ii)
the acquisition by Buyer, directly or indirectly, of a Reporting Service (other
than the Target Reporting Service) in the Restricted Area or (iii) an initial
public offering (A) by the Buyer and/or the Companies, or (B) by an Affiliate
(as defined in Rule 405 under the Securities Act of 1933, as amended) of the
Buyer or the Companies in the court-reporting services business (in the case of
(A) or (B) of this clause (iii), a "Disqualifying IPO"). Anything to the
contrary notwithstanding, a Disqualifying IPO by an Affiliate will not
constitute a Prohibited Event, provided the Affiliate unconditionally assumes or
guarantees the obligations of Buyer hereunder. As used herein, the terms
"Reporting Service," "Restricted Area" and "Target Reporting Service" shall have
the meanings assigned to them in Section 7.1 hereof. The parties hereto
acknowledge that the ability of the Buyer to engage in a prohibited event is
limited by the rights granted to the Sellers under the Security Agreement, as
defined below.
(c) The Installments, all payments of principal and interest on the
Promissory Notes, the Additional Amount and the payments required under the
Employment agreements, as defined below (collectively, the "Obligations") shall
be secured by (X) a pledge of the Shares, (Y) the guarantee of Buyer's parent,
EquiMed, Inc., of payment of the last $1,000,000 of the Obligations (the
"Guarantee") and (Z) a valid and enforceable perfected first security interest
on all the assets of the Companies (the assets set forth in (X), (Y) and (Z)
above, together with the proceeds therefrom collectively referred to as the
"Collateral"), pursuant to a Security Agreement in the form annexed hereto as
Exhibit B-1, the Stock Pledge Agreements annexed hereto as Exhibits B-2 and the
Guarantee attached hereto as Exhibit B-3 (collectively the "Security
Documents"). Buyer and EquiMed, Inc. agree to execute and deliver to Sellers for
filing with the appropriate governmental authorities Uniform Commercial Code
financing statements so that Sellers may perfect their security interest in the
Collateral. In the event Buyer defaults in the payment, when due, of the
Obligations, for a period of ten days after written notice thereof, the Sellers
shall have the option, in its sole and absolute discretion, to pursue one or
more of its remedies under the Security Documents, including but
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not limited to enforcing its rights with respect to the Guarantee, the
Collateral and/or the Shares.
3. Closing. The closing of the transactions contemplated by this Agreement
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(the "Closing") shall take place at the offices of SNOW XXXXXX XXXXXX P.C., 000
Xxxxx Xxxxxx, 00xx xxxxx, Xxx Xxxx, Xxx Xxxx at 5:00 p.m. on January 8, 1997
(the "Effective Time"). At Closing:
(a) The Buyer will deliver to a mutually acceptable escrow agent (the
"Escrow Agent"), pursuant to the Stock Pledge Agreement referred to above, stock
certificates evidencing the number of Shares transferred by Seller to Buyer at
Closing duly endorsed in blank or with stock powers attached and in proper form
for transfer, and evidence of payment of, or agreement to pay, any stock
transfer taxes as may be required. The Escrow Agent shall hold the Shares to
secure payment of the Obligations. The Escrow Agent shall deliver the Shares (x)
to Buyer upon receipt of joint written instructions from Buyer and Sellers or
other evidence acceptable to the Escrow Agent that Buyer has paid the
Obligations (provided the notice provisions of Section 14(b) hereof are complied
with), or (y) to Seller upon receipt of joint written instructions from Buyer
and Sellers or other evidence acceptable to the Escrow Agent that Buyer has
defaulted in the payment of the Obligations (provided the notice provisions of
Section 14.2 hereof are complied with). In the event of a bona fide dispute
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concerning whether payment of the Obligations has occurred, the Escrow Agent
shall continue to hold the Shares until the issue has been finally determined,
or it may commence an interpleader action in a court of competent jurisdiction,
and in connection therewith deposit the Shares. The Escrow Agent shall not be
liable for any action(s) taken, or the failure to take action(s), in good faith,
except for gross negligence or willful misconduct of the Escrow Agent. Sellers
and Buyer acknowledge that the Escrow Agent is merely a stakeholder. Upon
delivery of the Shares in accordance with the joint written instruction of the
parties or a final determination, the Escrow Agent shall be released from all
liability and obligations with respect to the Shares.
(b) Buyer will deliver to the Sellers:
(i) certified checks of Buyer or official bank cashier's check
payable to Sellers in the amount of the Initial Cash Payment (50% to Xxxxxxx and
50% to Xxxxxx); and
(ii) Buyer's Promissory Notes (in the aggregate principal amounts of
$1,000,000 to Xxxxxxx and $1,000,000 to Xxxxxx.
(c) Buyer shall elect each of the Sellers as directors of Buyer and the
Companies until the Obligations are paid in full
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and enter into indemnity agreements (the "Indemnity Agreements") with Sellers
pursuant to which Buyer agrees to indemnify each of Sellers to the fullest
extent permitted by the laws of the jurisdiction in which Buyer is incorporated
and any other applicable jurisdictions, from and against any and all damages,
expenses and liabilities arising from or in connection with the breach of duty
as a director, except for gross negligence or wilful misconduct. Each of the
Sellers may resign as a director of Buyer at any time.
(d) EquiMed, Inc. shall deliver its Guarantee.
(e) Sellers, Buyer and EquiMed, Inc. shall execute the respective
Employment Agreements and the Security Documents to which they are parties.
4. Representations and Warranties of Sellers. Sellers, jointly and
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severally, represent and warrant to Buyer as follows, except as stated with
respect to a specific representation or warranty in a disclosure letter dated
the date of this Agreement, delivered by Sellers to Buyer simultaneously with
the execution and delivery of this Agreement (the "Disclosure Letter"):
4.1 Organization. Standing and Corporate Power. Each of the Companies is a
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corporation, duly organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation, has full corporate power and
authority to carry on its business, and to own or lease its properties as and in
the places where such business is now conducted and such properties are now
owned, leased or operated; and is qualified to transact business as a foreign
corporation in the jurisdictions listed in the Disclosure Letter. No proceedings
for the bankruptcy or insolvency of any of the Companies are pending or, to the
Sellers' knowledge, are contemplated.
4.2 Ownership. The authorized capital stock and the number of issued and
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outstanding shares of each of the Companies is as set forth in the Disclosure
Letter, and all such issued and outstanding shares are owned by the Sellers and
are validly issued and outstanding, fully paid and nonassessable, and no third
person holds any proxy or similar right with respect thereto. Each of the
Sellers is the lawful owner, of record and beneficially, of the number of shares
of each of the Companies set forth above in the Preliminary Statement and has,
and will transfer to the Buyer at the Closing, good and marketable title to such
Shares, free and clear of any Liens and with no restriction on the voting rights
and other incidents of record and beneficial ownership pertaining thereto. No
stock transfer tax is imposed in connection herewith. There are no outstanding
options, warrants or rights to purchase or acquire any shares of the capital
stock or other securities of any of the Companies,
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and there are no agreements or understandings between any Seller and any other
person with respect to the voting of any of the Shares or any other matters.
None of the Companies has any subsidiaries or owns, directly or indirectly,
shares or other securities in any other corporation, or any interest in any
partnership, joint venture or other business entity.
4.3 Authorization and Binding Effect: No Governmental Consents Required.
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This Agreement constitutes a valid and binding agreement of each of the Sellers,
enforceable in accordance with its terms, and neither the execution and delivery
of this Agreement nor the consummation by the Sellers of the transactions
contemplated hereby, nor compliance with any of the provisions hereof, will (i)
conflict with or result in a breach of the Certificate of Incorporation or the
By-Laws of any of the Companies, each as in effect as of the date hereof
(including amendments, if any, thereto), true and complete copies of which have
previously been delivered to Buyer or its representatives, (ii) to the Sellers'
knowledge, violate any statute, law, rule or regulation or any order, writ,
injunction or decree of any court or governmental authority, or (iii) violate or
conflict with or constitute a default under (or give rise to any right of
termination, cancellation or acceleration under) the terms or conditions or
provisions of any note, bond, lease, mortgage, obligation, agreement,
understanding, arrangement or restriction of any kind to which the Company or
any of the Sellers is a party or by which the Company or any of the Sellers or
their respective assets or properties may be bound (it being understood that
with respect to any leases which require the consent of, or an assignment from,
the lessor (other than with respect to the lease of the premises where the
Company conducts business) in connection with the sale of the Shares
contemplated hereby, the representation and warranty of the Sellers contained in
this clause (iii) shall not be deemed to be breached as a result of the
execution and delivery of this Agreement or the consummation of the transactions
contemplated hereby). To the Sellers' knowledge, no consent or approval by any
governmental authority is required in connection with the execution and delivery
by the Sellers of this Agreement or the consummation of the transactions
contemplated hereby.
4.4 Balance Sheet; No Undisclosed Liabilities; Absence of Changes; Signing
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Date Asset Schedule; Revenues. (a) Sellers have previously delivered to the
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Buyer unaudited balance sheets of the Companies as at December 31, 1995 (the
"Balance Sheets") and profit and loss statements for the year ended December 31,
1995. The amount of the tangible assets and liabilities of the Companies set
forth on the Balance Sheets are true and correct. Except as set forth on the
Balance Sheets, as of December 31, 1995, the Companies did not have any claims,
liabilities or obligations of any material nature, fixed of contingent, matured
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or unmatured, liquidated or unliquidated, which were not shown or otherwise
provided for in the Balance Sheets, it being understood that no representation
or warranty is hereby made concerning any tax liability of the Companies for
which the Sellers have agreed to indemnify Buyer as provided in Section 10.1
hereof. Except as set forth on the Balance Sheets or in the Disclosure Letter,
or for changes reflected in the Signing Date Asset Schedule (as hereinafter
defined), subsequent to December 31, 1995, there has been no:
(i) Material and adverse change in the business, properties, assets or
liabilities, operations, condition (financial or otherwise) or prospects of the
Companies, nor has any event occurred or been threatened, which may have a
material and adverse effect on the Companies;
(ii) Sale, transfer or other disposition of any assets owned or used by
Companies (whether or not capitalized or expensed for tax or financial statement
purposes);
(iii) Claim, obligation or liability incurred by the Companies other than
in the ordinary course of business and consistent with past practice;
(iv) Transaction not in the ordinary course of business;
(v) Write-off as uncollectible of any notes or accounts receivable of the
Companies or any portion thereof, except in the ordinary course of business;
(vi) Dividend declared, paid or set aside for payment or other
distribution on the Companies' capital stock, or any redemption, purchase or
other acquisition by the Companies of any capital stock, except as contemplated
by the Signing Date Asset Schedule or consistent with past practice;
(vii) Issuance or sale of any shares of capital stock, or any securities
convertible into or exchangeable for capital stock of the Companies;
(viii) General uniform increase in the compensation (including bonuses and
other employee benefits) of employees, any increase in any such compensation
payable to any officer, employee, consultant or agent thereof having an annual
salary or remuneration in excess of $35,000, or loans made by any of the
Companies to any of their respective stockholders, directors, officers or
employees;
(ix) Capital expenditures or commitments in excess of $10,000 in the
aggregate for additions to property, plant or equipment of the Companies;
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(x) Change in the accounting methods or practices followed by any of
the Companies or any depreciation or amortization policies or rates theretofore
adopted;
(xi) Agreement or commitment, whether or not in writing, to do any of
the foregoing.
(b) The unaudited asset schedule of the Companies dated as of the Signing
Date (the "Signing Date Asset Schedule") annexed as Exhibit C hereto, which
reflect the assets of the Companies as of the Signing Date, without giving
effect to reserves for bad debts but after giving effect to the transactions
contemplated hereby, is true and correct in all material respects.
(c) The Companies' ledger accounts, as adjusted through the Closing, for
its taxable year ended December 31, 1995 allocates to one or more of the
accounts set forth on Exhibit B hereto, the recurring portion of the accrued
expenses of the Companies for such year. A recurring accrued expense means for
purposes hereof an item of expense contemplated to be incurred by the Companies
on a continuing basis after Closing, other than salaries and benefits payable to
Sellers and their Affiliates.
(d) Total gross revenues of the Companies in the aggregate, calculated on
a cash basis, for the fiscal years ended December 31, 1994 and 1995 and the
three quarters ending September 30, 1996 were $5,301,587, $4,881,009 and
$3,548,773, respectively.
4.5 Consents Required. Except as set forth in the Disclosure Letter, no
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consent of any party to any agreement, contract, instrument, lease, license,
note, bond, mortgage, indenture or other obligation to which the Companies or
Sellers is a party, or by which the Companies or Sellers, or any of the assets
of the Companies or Sellers, is subject, is required for the execution, delivery
and performance of this Agreement and the consummation of the transactions
contemplated hereby.
4.6 Account Receivable. (a) The Signing Date Asset Schedule sets forth the
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accounts receivable of the Companies as of the Signing Date, on an aging basis
of 30-day intervals, including the name of the account debtor and the amount of
the receivable. At the Effective Time, the Companies aggregate accounts
receivable prior to deducting the usual and ordinary reserves for bad debts,
shall not be less than $1,786,695 (the "Accounts Receivable"). All Accounts
Receivable are for services actually provided in the ordinary course of
business. The aforementioned Accounts Receivable are collectible in full. To the
extent of any breach of this Section 4.6 and any resulting breach of Section
4.4(b) above, the sole remedy of Buyer shall be the reduction of the Purchase
Price by an amount ("Maximum Offset") not to exceed $446,674. The determination
of whether a breach has occurred
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under this Section 4.6 and the amount and the manner of applying any such offset
shall be made as follows: (X) upon the first anniversary of the Closing, the
Buyer may offset against the last Installment an amount equal to 25% of the
uncollected Accounts Receivable, but not to exceed 16.75% of the Maximum Offset
and (Y) upon the thirty second month from the Closing, the Buyer may offset
against the Promissory Notes the remainder of the Maximum Offset not otherwise
offset pursuant to (X) above. Notwithstanding the above, 25% of any such
Accounts Receivable collected by Buyer or an affiliate thereof after application
of such shortfall against the last Installment and/or 100% of such Accounts
Receivable with respect to Promissory Notes, shall be paid to the Sellers within
10 days after payment is received as a reinstatement of a portion of the
aforementioned reduction in the Purchase Price.
(b) The Signing Date Asset Schedule sets forth the clients of the
Companies for whom the Companies are providing stenographic-based court
reporting services as of the Signing Date, exclusive of any carrying value for
the Companies' work-in-process as at such date.
4.7 Material Contracts. True and complete copies of all contracts,
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agreements, instruments and leases to which the Companies are a party or by
which the Companies or their respective assets or properties are bound and which
are material to the Companies' business, each as in effect as of the date hereof
(including all amendments thereto, if any), have previously been furnished to
Buyer or its representatives and are identified in the Disclosure Letter (the
"Material Contracts"). Each of the Material Contracts is in full force and
effect and is, to Sellers' knowledge, the legal, valid and binding obligation of
the parties thereto and is enforceable as to them in accordance with its terms.
None of the Companies has given or received notice of, and Sellers do not know
that there exists, any default or event of default under any of the Material
Contracts, or any event or condition which with or without notice or passage of
time or both would constitute an event of default under any of the Material
Contracts by the Companies or by any other party thereto. Each of the Companies
has performed in all material respects all obligations required to be performed
by it under the Material Contracts to which it is a party.
4.8 Title to Assets; Liens. Each of the Companies has good and marketable
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title to all the properties and assets reflected as being owned by it on the
Signing Date Asset Schedule, free and clear of all Liens, except liens for
current taxes not yet due and payable. To Sellers' knowledge, the machinery and
equipment of the Companies is in reasonable working condition and repair,
without any material defects, and without need of maintenance or repairs, except
for ordinary, routine maintenance and repairs
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which are not material in nature or cost, and all of the machinery and equipment
of the Companies is adequate for its use.
4.9 Litigation. There are no actions, suits, claims or legal,
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administrative or arbitration proceedings or investigations pending, or to
Sellers' knowledge threatened, against, involving or affecting the Companies,
which if adversely determined could individually or in the aggregate materially
and adversely affect the business, operations, condition (financial or
otherwise), or prospects of the Companies. To Sellers' knowledge, there are no
outstanding orders, writs, injunctions or decrees of any court, governmental
agency or arbitration tribunal against, involving or affecting the Companies.
4.10 Taxes. Each of the Companies has filed with appropriate Federal,
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state and local authorities all tax returns required by law, regulation, or
otherwise to be filed by it for all taxable periods ending on or prior to the
date hereof, for which returns have become due, and will continue to file such
tax returns as they become due for tax periods ending on or prior to the Closing
Date. Sellers shall be responsible for the preparation of income tax returns
required to be filed with respect to taxable years ending on or prior to the
Closing Date, and the Companies will reimburse the Sellers for the preparation
of such returns. Sellers and the Companies shall mutually prepare income tax
returns for the taxable year in which the Closing occurs. Sellers shall have the
right to represent the Companies with respect to the audit of any tax returns of
the Companies relating to the aforementioned periods. Except as set forth in the
Disclosure Letter, none of the tax returns filed by the Company have been
audited by the relevant governmental tax authorities. All deficiencies proposed
as a result of such audits having been paid, reserved against, settled or as
described in the Disclosure Letter, are being contested in good faith by
appropriate proceedings. None of the Companies has executed or filed with any
taxing authority any agreement which is still in effect extending the period for
assessment or collection of any income or other taxes for which it may be
directly or indirectly liable, and no claim for assessment or collection of
taxes for which it may be directly or indirectly liable has been asserted or
threatened against it. Sales taxes have been withheld or collected and remitted,
to the extent required, in all jurisdictions in which the Companies are required
to pay sales taxes and none of the Companies nor either of the Sellers has
received any claim or notice, and Sellers do not have any knowledge that any of
the Companies have not withheld or collected and paid all required sales taxes.
4.11 Compliance with Law. To Seller's knowledge, the Companies are in
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substantial compliance in all material respects with all applicable Federal,
state and local laws, rules,
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regulations and orders (collectively, "Laws"), including without limitation, all
Laws relating to occupational health and safety standards, employment
discrimination and sexual harassment.
4.12 Labor Relations. Except as set forth in the Disclosure Letter, none
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of the Companies have in effect with any employee or other person an employment
contract or other arrangement relating to the length or terms and conditions of
such employee's or other person's employment, and other commitments imposed by
applicable law which is not terminable within thirty (30) days. The Companies
have paid in full to their employees all wages, salaries, commissions, bonuses
and other direct compensation for all services performed by them, other than
amounts that have not yet become payable in accordance with the Companies'
customary practices. None of the Companies is liable for any severance pay or
other payments on account of termination of any former employee. Furthermore, if
after Closing, the Company lawfully terminates any person who was an employee or
independent contractor of the Company at Closing, the Company will not be liable
to pay any such person commissions not accrued at the date of termination,
provided the Company does not otherwise agree after Closing or termination of
engagement to pay same. Except as set forth in the Disclosure Letter, (a) each
of the Companies is in substantial compliance in all material respects with all
applicable laws respecting employment and employment practices, terms and
conditions of employment and wages and hours, and none of the Companies is or
has been engaged in any unfair labor practice, (b) there is no unfair labor
practice complaint against any of the Companies pending before the National
Labor Relations Board, (c) there is no labor strike, dispute, slowdown or
stoppage actually pending or threatened against or affecting any of the
Companies, (d) no representation question exists respecting the employees of any
of the Companies, (e) no grievance or arbitration proceeding arising out of or
under collective bargaining agreements relating to employees of any of the
Companies is pending and no claim therefor exists, (f) the Company is not a
party to any collective bargaining agreement with any union representing its
employees or independent contractors, and (g) no collective bargaining agreement
relating to employees of any of the Companies is currently being negotiated.
4.13 Employee Benefit Plans; ERISA. Except as set forth in the Disclosure
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Letter, none of the Companies has, none of its employees are covered by, and
none of the Companies has any obligation with respect to, any bonus, deferred
compensation, pension, profit-sharing, retirement, insurance, stock purchase,
stock option, or other fringe benefit plan, arrangement or practice, or any
other employee benefit plan, as defined in section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), whether formal or
informal
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(collectively "Plans"). The Disclosure Letter contains an accurate and complete
description of, and sets forth the annual amount payable pursuant to, each of
those Plans. The Balance Sheets reflect in the aggregate an accrual of all
amounts accrued but unpaid under such Plans as of the date thereof. The
Companies have performed and complied with all of their obligations under or
with respect to such Plans and such Plans have operated in accordance with their
terms. Except as set forth in the Disclosure Letter, there are no accrued but
unpaid contributions to any of the Plans. The Plans have operated in accordance
with the applicable requirements of ERISA and the Internal Revenue Code of 1986,
as amended (the "Code"). No reportable event (as defined in section 4043(e) of
ERISA), prohibited transaction (as defined in section 406 of ERISA or section
4975 of the Code), accumulated funding deficiency (as defined in section 302 of
ERISA) or plan termination (as defined in Title IV of ERISA or section 411(d) of
the Code) has occurred with respect to any of the Plans. None of the Plans is a
multi-employer plan (as defined in section 3(37) of ERISA) and none of the
Companies has any actual or potential liability with respect to any multi-
employer plan or a past or present withdrawal therefrom. All of the Plans that
are pension plans (as defined in Section 3(2) of ERISA) are qualified under
section 401(a) of the Code and conform in all respects with the requirements of
the Code and ERISA. The present value or accrued benefits (valued on a
termination basis as of the Closing Date under Pension Benefit Guaranty
Corporation Regulations) under any of the Plans that is covered by Title IV of
ERISA does not exceed the value of the assets of such Plan. Except as set forth
in the Disclosure Letter, no filing, application or other matter with respect to
any of the Plans is pending with the Internal Revenue Service, Pension Benefit
Guaranty Corporation, United States Department of Labor or other governmental
agency or body, none of the Plans (other than a profit sharing plan) has been
terminated, the Pension Benefit Guaranty Corporation has not taken action to
terminate any of the Plans and no trustee has been appointed by any court to
administer any of the Plans. None of the Plans has been amended since the date
of the Balance Sheets or will be amended prior to the Closing Date.
4.14 Liabilities. As at the date of Closing, the Companies shall not have
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any unpaid accrued expenses, whether contingent or non-contingent, other than
any accrued taxes for the 1996 and 1997 taxable years, the loans payable to
Sellers, amounts owed ZAGAT and the amount referred to in Section 7.7.
5. Representations and Warranties of Buyer. Buyer represents and warrants
---------------------------------------
to Sellers as follows:
12
5.1 Organization and Standing. Buyer is a corporation duly organized,
-------------------------
validly existing and in good standing under the laws of the jurisdiction of its
incorporation.
5.2 Corporate Power. Buyer has full corporate power and authority to enter
---------------
into this Agreement and to consummate the transactions contemplated by this
Agreement and to perform its obligations under this Agreement.
5.3 Authorization; Binding Effect. The execution and delivery by Buyer of
-----------------------------
this Agreement, and the consummation by Buyer of the transactions contemplated
by this Agreement and the performance by Buyer of its obligations under this
Agreement, including without limitation, the execution and delivery of the
Employment Agreements, have been duly and validly authorized by all necessary
corporate action on the part of Buyer. This Agreement has been duly executed and
delivered by Buyer and constitutes, and the Employment Agreement when executed
and delivered at Closing in accordance with the terms hereof will constitute, a
legal, valid and binding obligation or agreement, as the case may be, of Buyer,
enforceable against Buyer in accordance with its terms.
6. Covenants of Sellers.
--------------------
6.1 Third Party Consents. Sellers will use their best efforts to obtain
--------------------
and deliver to Buyer all written consents of, or assignments from, third parties
which are required in connection with the sale of the Shares and the other
transactions contemplated by this Agreement.
6.2 Access. Prior to the Closing, Sellers will allow Buyer and its
------
representatives reasonable access to the books, records and properties of the
Companies and furnish such information concerning the Companies as Buyer
reasonably may request from time to time, subject to Buyer entering into
confidentiality agreements acceptable to Sellers.
6.3 Conduct of Business Until Closing. Except as set forth in the
---------------------------------
Disclosure Letter, Sellers agree that until the Closing Date they will:
(a) Operate the business of the Companies only in the usual, regular and
ordinary course, consistent with reasonable business practice;
(b) Use their best efforts to preserve the Companies' present relationship
with their respective suppliers, customers and others with which they have
business dealings;
13
(c) Not permit the Companies to modify or change in any material respect
or terminate any Material Contract to which they are party;
(d) Not permit the Companies to incur any indebtedness for money borrowed;
(e) Not permit the Companies to make any loans or extensions of credit,
except to trade purchasers in the ordinary course of business consistent with
past practice;
(f) Continue all policies of insurance in full force and effect up to and
including the Closing Date;
(g) Not permit the Companies to declare or pay any dividend or other
distribution on their capital stock, or effect any redemption, purchase or other
acquisition of such capital stock, other than as contemplated by the Signing
Date Asset Schedule; or
(h) Not permit the Companies to issue or sell, or enter into any contract
for the issuance or sale, of any shares of capital stock, or securities
convertible or exchangeable for shares of capital stock.
(i) No change will be made in the Companies Articles of Incorporation or
By-laws, except as may be first approved in writing by Buyer.
(j) No change will be made affecting personnel, compensation payments, or
banking or safe deposit arrangements without the Buyer's written approval.
(k) No contract of commitment will be entered into by or on behalf of the
Companies extending beyond December 31, 1996, except normal commitments for the
purchase of materials and supplies which in any single case will not involve
payment by the Companies of more than $5,000.00.
(l) Except as otherwise requested by the Buyer, the Sellers will cause the
Companies to preserve the Companies' business organizations intact, to keep
available to the Companies the services of its present officers and employees,
and to preserve for the Companies the goodwill of its suppliers, customers, and
other having business relations with the Companies.
6.4 Updating of Representations and Warranties. Between the date of this
------------------------------------------
Agreement and the Closing Date, Sellers shall as necessary or appropriate update
the Disclosure Letter and give notice to Buyer promptly upon becoming aware of
(i) any inaccuracy of a representation or warranty set forth in Section 4 hereof
or in the Disclosure Letter, or (ii) any event or state of
14
facts that, if it had occurred or existed on or prior to the date of this
Agreement, would have caused any such representation and warranty to be
inaccurate, any such notice to describe such inaccuracy, event or state of facts
in reasonable detail.
7. Covenants of Buyer.
------------------
7.1 Restrictions on Buyer Purchasing Competitive Companies. Through April
------------------------------------------------------
10, 1998, Buyer shall not establish, purchase or otherwise acquire, directly or
indirectly, a stenography-based court reporting service (the "Reporting
Service"), or a controlling interest in a Reporting Service, located in, or
which has an Affiliate located in, the Restricted Area. As used herein,
"Restricted Area" means the five boroughs of New York City; Westchester,
Rockland, Xxxxxx, Nassau and Suffolk Counties in New York; and Passaic, Union,
Sussex, Warren, Essex, Bergen and Xxxxxx Counties in New Jersey. Notwithstanding
the foregoing, through April 10, 1998, within the Restricted Area (i) Buyer or
an Affiliate of Buyer (the "Acquiring Entity") may purchase the stenography-
based New York Reporting Service for which Buyer is currently negotiating (the
"Target Reporting Service"), provided that (A) prior to the execution of this
Agreement, the name of the Target Reporting Service is disclosed and is
acceptable to the Sellers, (B) the Acquiring Entity shall not solicit the
personnel of the Companies for employment or the law firms that have been
clients of the Companies at any time through December 31, 1997 as prospective
clients, (C) if the annual gross revenues of the Target Reporting Service
("Target Gross Revenues") following the acquisition by the Acquiring Entity (the
"Acquisition") on an annualized basis for the period commencing on January 1,
1997 and ending December 31, 1997 (the "Measuring Period") exceeds Target Gross
Revenues for the fiscal year ending on the last day of the month prior to the
Acquisition ("Base Target Gross Revenues") by more than 25%, then the excess of
the highest amount of Target Gross Revenues for the Measuring Period over 125%
of Base Target Gross Revenues shall be added to Gross Revenues of the Companies
for the purposes of calculating the Contingent Payments; (ii) if Sellers
introduce Buyer to a Reporting Service as a prospective acquisition, and Buyer
and the Sellers agree upon the terms of compensation for such introduction,
Buyer may acquire such Reporting Service; and (iii) Buyer may acquire any
electronic-based court reporting service.
7.2 Restricted Payments. Buyer agrees that until the Obligations are paid
-------------------
in full, that it will not, or will not permit the Companies to:
(i) Declare dividends or make any other distributions in respect of
the Shares or any shares of its capital stock;
15
(ii) Redeem, purchase or otherwise acquire any shares of its capital
stock;
(iii) Guarantee, directly or indirectly, any obligations of Buyer or
the Affiliates of the Companies;
(iv) Make any advances or similar payments to Affiliates;
(v) Assign or otherwise encumber the revenues of the Companies; or
(vi) Pay remuneration to all officers and directors in an amount in
excess of $200,000 in the aggregate, excepting herefrom remuneration paid
to Sellers.
7.3 Accounts Receivable and Work In Process. Buyer agrees to use its best
---------------------------------------
efforts to collect the Accounts Receivable. No Account Receivable shall be
written-off, settled or compromised without the written consent of Sellers and
Buyer.
7.4 Access. Following the Closing and until such time as the Obligations
------
have been paid in full, Buyer will allow Sellers and their representatives
reasonable access to the books, records and properties of the Companies and
furnish such information concerning Buyer as Sellers reasonably may request.
7.5 Taxes. The Companies shall notify Sellers of any correspondence or
-----
other communication received by a taxing authority with respect to any period
ending on or before the Closing. Buyer agrees not to file any amended tax return
for any taxable year ending on or before December 31, 1996 without the prior
written consent of Sellers. Buyer shall reimburse Sellers for any after-tax
benefit the Companies may realize from any net operating loss of the Companies
for the period 1/1/97 to Closing.
7.6. Confidentiality. Prior to the Closing Date, Buyer shall maintain the
---------------
confidentiality of all confidential information furnished to it by Sellers
concerning the Companies and shall not disclose such information to others, or
use any such information for any purpose, except in furtherance of the
transactions contemplated by this Agreement and except as such information may
be required to be disclosed by subpoena or other court order or upon advice of
counsel that such disclosure is required by law or is necessary in connection
with the prosecution or defense of any judicial proceeding or any application
to, or proceeding before, any governmental body. As used herein, "confidential
information" does not include that (i) which was in the public domain prior to
receipt from Sellers, or (ii) which Buyer can demonstrate was in its possession
prior to receipt, or (iii) which subsequently becomes known to Buyer from third
parties not subject to any restriction on disclosure, or
16
(iv) which subsequently comes into the public domain through no fault of
Buyer, or (v) which was specifically approved for disclosure by written consent
of Sellers.
7.7 Reimbursement of Fees. Buyer will cause Xxxxx to reimburse Sellers for
---------------------
expenses incurred by Sellers on Xxxxx'x behalf, the sum of $2,000 each
immediately after the Closing.
8. Conditions Precedent to Obligations of Buyer. The obligations of Buyer
--------------------------------------------
under this Agreement are subject to the satisfaction at or prior to Closing of
each of the following conditions (which may be waived by Buyer):
8.1 Representations and Warranties Correct. The representations and
--------------------------------------
warranties made by Sellers in this Agreement shall be true and correct in all
material respects as of the Closing Date as though such representations and
warranties were restated and made at and as of the Closing Date, and Sellers and
shall have furnished Buyer with a certificate to that effect.
8.2 Compliance with Obligations. All of the terms, covenants and
---------------------------
conditions of this Agreement required to be complied with by Sellers at or prior
to the Closing, in connection with the sale of the Shares contemplated hereby,
shall have been duly complied with and Sellers shall have furnished Buyer with a
certificate to that effect and such other evidence of compliance as Buyer may
reasonably request.
8.3 No Action or Litigation. There shall be no order of any court or
-----------------------
governmental body restraining or prohibiting the transactions contemplated by
this Agreement, nor shall any litigation or other proceeding be pending or
threatened against the Companies, the Sellers or Buyer seeking to prohibit or
otherwise challenge the consummation of the transactions contemplated by this
Agreement or to obtain substantial damages in respect thereof.
8.4 Third Party Consents. Sellers shall have obtained all consents and
--------------------
assignments, if any, required for the consummation of the transactions
contemplated by this Agreement.
9. Conditions Precedent to Obligations of Sellers. The obligations of
----------------------------------------------
Sellers under this Agreement are subject to the satisfaction at or prior to
Closing of each of the following conditions (which may be waived by Sellers):
9.1 Representations and Warranties Correct. The warranties and
--------------------------------------
representations made by Buyer in this Agreement shall be true and correct in all
material respects as of the Closing Date, as though such warranties and
representations were restated and made as and at the Closing Date, and Buyer
shall have furnished
17
Sellers with a certificate executed by its Chief Executive Officer to that
effect.
9.2 Compliance With Obligations. All of the terms, covenants and
---------------------------
conditions of this Agreement required to be complied with by Buyer at or prior
to Closing shall have been duly complied with and Buyer shall have furnished
Sellers with a certificate executed by its Chief Executive Officer to that
effect and such other evidence of compliance as Sellers may reasonably request.
9.3 Appointment of Sellers as Directors of Buyer. Buyer shall have
----------------------------------------------
appointed each of the Sellers as a director of the Buyer, and shall have entered
into the Indemnity Agreements.
9.4 Employment Agreements. Buyer shall have entered into the employment
---------------------
agreements with each of the Sellers, substantially in the forms annexed hereto
as Exhibit D-l and D-2, respectively (the "Employment Agreements"), pursuant to
which Buyer will employ the Sellers for a period of fifteen months, unless
terminated earlier by one or both of the Sellers upon the first anniversary
hereof (the "Term"), commencing on the Closing Date. During the Term, the
Sellers shall each devote an average of 32 hours per week to the affairs of the
Companies, provided that in no event will they be required, in the aggregate, to
be at Buyer's or the Companies' offices for more than four days per week, with
maximum hours (unless otherwise agreed to by Sellers) of 10:15 a.m. to 3:15 p.m.
per day (hereinafter referred to as "Full-Time Employment"). Notwithstanding the
above, to the extent feasible, the Sellers may perform executive services on
behalf of the Companies from their home, provided one of the two of them is
available to be at the Companies' offices during the period set forth above.
Each of the Sellers shall receive $10,000 per month during the Term as
compensation for his services, to be paid pursuant to the general payroll
practices of the Buyer, but no less than monthly. The Sellers shall be entitled
to six weeks of paid vacation per 12 month period, all standard holidays
observed by the Buyer or the Company and all sick leave and personal time
pursuant to the Buyer's policy. The Sellers shall also be entitled to full
benefits under a medical/health insurance plan of Buyer for the Term and for a
period of one year following the Term, which plan shall be comparable to the
plan currently provided the Sellers by the Companies. In the event Buyer or the
Companies are unable to include the Sellers in their medical/health insurance
plans, both the Buyer and the Companies jointly and severally agree to reimburse
the Sellers an amount equal to that which would have been paid by the Buyer or
Companies if the Sellers were able to be included.
18
10. Indemnification
---------------
10.1 Obligation of Sellers to Indemnify. Sellers hereby agree, jointly and
----------------------------------
severally, to indemnify, defend and hold harmless Buyer and its successors and
assigns from and against the after-tax cost of any and all claims, damages,
losses, liabilities, deficiencies, actions, suits, proceedings, costs or legal
expenses (the after-tax cost of all such items being hereinafter referred to
individually as a "Loss", and collectively, as "Losses") arising out of or
resulting from: (i) any breach of a representation, warranty or covenant by
Sellers contained in this Agreement, as the same may be qualified by the
Disclosure Letter, Section 4.6 hereof, or other documents delivered to Buyer and
referred to herein (the "Collateral Documents"); or (ii) events occurring in the
course of or relating to the business of the Companies prior to Closing (a
"Third Party Claim") which are not disclosed in this Agreement (including the
Disclosure Letter) and the Collateral Documents or of which Buyer otherwise did
not have actual knowledge prior to Closing; or (iii) a liability finally
determined for Federal, state, local or foreign taxes that relates to periods up
to and including the Closing Date (a "Tax Claim") to the extent that such taxes
were not paid prior to the Closing Date or were not reflected on the Balance
Sheets, or (iv) any and all costs and expenses (including reasonable attorneys
fees) related to the foregoing.
10.2 Obligation of Buyer to Indemnify. Buyer hereby agrees to indemnify,
--------------------------------
defend and hold harmless the Sellers from and against after-tax costs: (i) any
and all Losses resulting from any breach of a representation, warranty or
covenant of Buyer contained in this Agreement, as the same may be qualified by
the Disclosure Letter or the Collateral Documents; (ii) any and all Losses
suffered by Sellers arising out of or relating to the conduct of the business of
the Companies after the Closing and (iii) any claims brought against Sellers as
directors of the Companies and/or Buyer with respect to their activities as such
after Closing, except for gross negligence or willful misconduct.
10.3 Notice of Claim. If any party (the "Indemnitee") receives written
---------------
notice of the commencement of any legal action, suit or proceeding with respect
to which any other party or parties is or may be obligated to provide
indemnification (the "Indemnitor") pursuant to Sections 10.1 or 10.2 of this
Agreement, the Indemnitee shall, within thirty (30) days of the receipt of such
written notice, give the Indemnitor written notice thereof (a "Claim Notice").
Failure to give such Claim Notice within such thirty (30) day period shall
constitute a waiver by the Indemnitee of its right to indemnity hereunder with
respect to such action, suit or proceeding.
19
10.4 Defense of Claims. Except as otherwise provided in Section 4.10
-----------------
hereof, upon receipt by an Indemnitor of a Claim Notice from an Indemnitee with
respect to any claim for indemnification which is based upon a Third Party Claim
or a Tax Claim, such Indemnitor, either alone or together with any other
Indemnitor similarly notified, may assume the defense of the Third Party Claim
or Tax Claim with counsel of its or their own choosing. The Indemnitee(s) shall
cooperate in the defense of the Third Party Claim or Tax Claim and shall furnish
such records, information and testimony and attend all such conferences,
discovery proceedings, hearings, trial and appeals as may be reasonably required
in connection therewith. The Indemnitee(s) shall have the right to employ its or
their own counsel in any such action, but the fees and expenses shall be at the
expense of the Indemnitee unless the Indemnitor(s) shall not have promptly
employed counsel to assume the defense of the Third Party Claim or Tax Claim, in
which event such fees and expenses shall be borne by the Indemnitor(s). The
Indemnitor(s) shall have the right, in its or their sole discretion, to satisfy
or settle any Third Party Claim or Tax Claim for which indemnification has been
sought and is available hereunder. If the Indemnitor(s) shall fail with
reasonable promptness either to defend such Third Party Claim or Tax Claim or to
satisfy or settle the same, the Indemnitee(s) may defend, satisfy or settle the
Third Party Claim or Tax Claim at the expense of the Indemnitor(s) and the
Indemnitor(s) shall pay to the Indemnitee(s) the amount of any such Loss within
ten (10) days after written demand therefor.
10.5 Determination of After-Tax Cost. The after-tax cost of any Losses
-------------------------------
indemnifiable under this Section 10 shall initially be determined by accountants
(the "Indemnitee's Accountants") selected by the Indemnitee(s), after giving
effect to the effective tax rate of the Indemnitee(s) and the actual marginal
tax benefit realized by the Indemnitee(s) by reason of any such Losses, and
notice shall be given to the Indemnitor(s) setting forth the amount of the
after-tax cost so determined and the basis for such determination (the "After-
Tax Notice"). The determination of after-tax cost set forth in the After-Tax
Notice shall be binding absent a showing of manifest error or fraud.
10.6 Certain Limitations on Indemnification Obligations of Sellers. The
-------------------------------------------------------------
indemnification obligations of Sellers under Section 10.1 hereof and Buyer under
Section 10.2 hereof: (i) shall terminate on the second anniversary of the
Closing Date, except with respect to any Tax Claim, as to which Sellers'
obligation to indemnify shall survive until the end of the applicable statute of
limitations (the parties approval being required in order to extend such
statute); (ii) shall not apply to the first $25,000, in the aggregate, of
Losses, except for a breach of the representations and warranties of Sellers set
forth in Section 4 hereof as to which Sellers liability to indemnify Buyer shall
20
apply to all Losses, beginning with the first dollar in Losses; (iii) shall not
apply to any Loss disclosed in writing to Buyer prior to Closing; (iv) shall not
in the aggregate exceed amounts paid to Sellers for the purchase of the Shares
pursuant to this Agreement; (v) shall not apply to any Loss to the extent
covered by insurance maintained by the Companies; and (vi) shall not relate to
Losses arising by reason of the breach of any representation or warranty by
Sellers of which Buyer had actual knowledge prior to the Closing.
11. Adjustment to Purchase Price. (a) The Base Purchase Price shall be
----------------------------
increased by the excess of the cash on hand at Closing and the amount of cash
reflected on the Signing Date Asset Schedule, but in no event more than the
excess, if any, of the Companies' working capital at Closing and the amount
reflected on the Signing Date Asset Schedule or decreased by any excess of the
Companies' working capital reflected on the Signing Date Asset Schedule at
Closing and the amount thereof at Closing.
(b) Within forty-five (45) days after Closing, the Sellers' and Buyers'
accountant shall complete a Post Closing Review of the Companies' working
capital as at Closing. In connection therewith, prepaid expenses (i.e. rent)
shall be allocated based on the number of days the parties owned the Shares in
such relevant period. The Purchase Price shall be increased or decreased to
reflect the difference between the estimated working capital at the Effective
Time and the amount of working capital determined pursuant to the aforementioned
review.
12. Termination.
-----------
12.1 Conditions. This Agreement may be terminated at any time on or prior
----------
to the Closing Date:
(a) by mutual consent of the Sellers and Buyer;
(b) By Buyer, in the event of a Seller's Breach. As used herein, a
"Seller's Breach means (i) a material misrepresentation or breach on the part of
the Sellers with respect to any representations or warranties of the Sellers set
forth herein, or (ii) any material failure on the part of the Sellers to comply
with any of their obligations or to perform any of their covenants hereunder, or
(iii) any of the conditions set forth in Section 8 hereof shall not have been
fulfilled in any material respect by the Closing Date and the fulfillment
thereof shall not have been waived by Buyer.
(c) By the Sellers, in the event of a Buyer's Breach. As used herein, a
"Buyer's Breach" means (i) a material misrepresentation or breach on the part of
the Buyer with respect to any misrepresentations or warranties of the Buyer set
forth
21
herein, or (ii) any material failure on the part of the Buyer to comply with any
of its obligations or to perform any of its covenants hereunder, or (iii) any of
the conditions set forth in Section 9 hereof shall not have been fulfilled in
any material respect by the date scheduled for the Closing in Section 3 hereof
and the fulfillment thereof shall not have been waived by Sellers.
(d) By Buyer or Sellers, by notice to the other at any time after the date
scheduled for Closing in accordance with Section 3 hereof.
12.2 Termination Date.
----------------
A termination pursuant to Sections 12.1 (b) or (c) shall be effective
immediately upon delivery, by the party or parties having the right to
terminate, of a notice of termination to the other party or parties.
12.3 No Liability.
------------
In the event of a termination of this Agreement as provided above, this
Agreement shall forthwith terminate and there shall be no liability on the part
of either the Sellers or Buyer, except: (i) to the extent that such termination
results from the willful breach by a party hereto of any of its representations,
warranties, covenants or agreements set forth in this Agreement, in which event
the parties shall have all their remedies at law or in equity; and (ii) as set
forth in Section 20 hereof.
13. Survival. The representations, warranties, covenants and agreements
--------
of the parties set forth in this Agreement shall survive the Closing until the
second anniversary of the Closing Date, provided however, that representations,
warranties, covenants and agreements with respect to Federal, state, local and
foreign tax issues shall survive the Closing until the expiration of the
applicable statute of limitation for all filings for the periods up to and
including December 31, 1996.
14. Notices.
--------
14.1 How and When Given. All notices, requests, demands and other
------------------
communications which are required or permitted under this Agreement shall be in
writing and shall be deemed sufficiently given upon receipt if personally
delivered, faxed or mailed by certified mail, return receipt requested,
addressed to the party to be notified at the address hereafter set forth for
such party or to such other address as such party may hereafter designate in
writing:
22
(i) If to Sellers:
Xxxxxxx Xxxxxxx, 0 Xxxxxx Xxxx Xxxx Xxxxxx-Xx-Xxxxxx, Xxx Xxxx 00000,
Fax: (000) 000-0000
Xxxxxx Xxxxxxx X.X. Xxx 00 Xxxxxxxxxxxxx, Xxx Xxxx, 00000, Fax:
with a copy to:
Xxxx Xxxxxx, Esq. Snow Xxxxxx Xxxxxx P.C. 000 Xxxxx Xxxxxx 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000 Fax: (000) 000-0000
(ii) If to Buyer:
ALR Reporting, Inc. 000 Xxxxxxx Xxxxxx Xxxx, Xxxxx 000 Xxxxxx,
Xxxxxxxx 00000 Attention: Xxxxxxx Xxxxxxx, M.D. Fax: (000) 000-0000
with a copy to:
Iles Xxxxxx, Esq. 00 Xxxxxxxx Xxxx Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Fax: (000) 000-0000
14.2 Escrow Notices. (a) In the event the Escrow Agent receives notice
--------------
from Buyer that the Obligations have been paid in full, then the Escrow Agent
shall deliver a copy of the notice to Sellers. Unless the Escrow Agent has
received a written objection to Buyer's demand from one or both of the Sellers
within ten (10) business days after the Escrow Agent's delivery of a copy of
Buyer's notice to Sellers, the Escrow Agent shall deliver to Buyer all of the
Shares fifteen (15) business days after the Escrow Agent's delivery of a copy of
Buyer's notice to Sellers. If the Escrow Agent receives a written objection from
one or both of Sellers as provided above, Escrow Agent shall not consider there
to be for purposes of Section 3 (a' above, acceptable evidence that the
Obligation has been paid.
(b) In the event the Escrow Agent receives notice from Sellers that Buyer
has defaulted in the payment of the Obligations, then the Escrow Agent shall
deliver a copy of the notice to Buyer. Unless the Escrow Agent has received a
written objection to Sellers' demand from Buyer within ten (10) business days
after the Escrow Agent's delivery of a copy of Sellers' notice to Buyer, the
Escrow Agent shall deliver to Sellers all or a portion of the Shares fifteen
(15) business days after the Escrow Agent's delivery of a copy of Sellers'
notice to Buyer. If the Escrow Agent receives a written objection from Buyer as
provided above, Escrow Agent shall not consider there to be for purposes of
Section 3(a) above, acceptable evidence that Buyer has defaulted in the payment
of the Obligations.
23
(c) Costs of the Escrow Agent shall be borne equally by the Buyer and
Sellers.
15. Binding Effect; Benefits. This Agreement shall inure to the benefit
------------------------
of, and be binding upon the parties hereto and their respective legal
representatives, successors and permitted assigns, and no other person shall
acquire or have any other rights under this Agreement or by virtue of this
Agreement.
16. Assignment. Neither this Agreement nor any right, remedy, obligation
----------
or liability arising hereunder or by reason hereof shall be assignable by
Sellers or Buyer without the prior written consent of the other, except that
Buyer, by an amendment to this Agreement, may assign all of its rights hereunder
to an entity all of the equity interests of which are owned by Buyer, provided
that entity assumes all of the obligations of Buyer hereunder and Buyer
guarantees the payment and performance of all of those obligations.
17. No Brokerage. Except for certain conversations disclosed to Sellers
------------
and their counsel, the Buyer represents and warrants that it has not dealt with
any broker or finder in connection with the transactions contemplated by this
Agreement. To the extent Sellers or the Companies have dealt with brokers in
connection herewith, the Sellers shall bear the Brokerage Commission. Insofar as
any claims for brokerage commission or finder's fees may be alleged to be based
on any arrangements or agreements made by, or on behalf of a party, such party
agrees to indemnify and hold the other harmless against all liability, damage or
expense, including reasonable attorneys' fees and expenses, arising therefrom.
18. Governing Law. This Agreement shall in all respects be governed by,
-------------
construed under and enforced in accordance with the laws of the State of New
York applicable to contracts executed and to be performed wholly within such
State.
19. Designation of Forum in the Event of Litigation. Sellers and Buyer
-----------------------------------------------
agree that any legal action or proceedings with respect to, or arising out of,
the negotiation, execution, performance or breach of, or the rights and
privileges provided by, or responsibilities and obligations under, this
Agreement must be brought in either the Supreme Court of the State of New York
for the County of New York or the United States District Court for the Southern
District of New York and in no other jurisdiction. By execution and delivery of
this Agreement, each of the Sellers and Buyer accept and submit to the
jurisdiction of such courts in any such legal action or proceeding and
irrevocably consent to service of process in any action or proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid, to
each of the parties at its address for notices as specified herein, such service
to become effective thirty (30) days after such mailing. Nothing herein shall
affect the right to serve process in any other
24
manner permitted by law. The parties hereby agree to be bound by the
determination of the aforesaid courts and hereby waive any right which they may
have to relitigate issues determined by the aforesaid courts or to raise new
issues not raised by it in the aforesaid courts.
20. Expenses. Each of the parties shall pay its or his own legal,
--------
accounting and other expenses in connection with the negotiation and preparation
of this Agreement and the consummation of the transactions contemplated hereby,
whether or not said transactions are consummated.
21. Severability. If any term, covenant or condition of this Agreement or
------------
the application thereof to any party or circumstance shall, to any extent be
invalid or unenforceable, the remainder of this Agreement, or the application of
such term, covenant or condition to circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby and each
term, covenant or condition of this Agreement shall be valid and be enforced to
the fullest extent permitted by law.
22. Waiver. Any waiver by any party of a breach provisions of this
------
Agreement shall not operate as or be construed to be a waiver of any other
breach of that provision or of any breach of any other provision of this
Agreement. The failure of a party to insist upon strict adherence to any term of
this Agreement on one or more occasions will not be considered a waiver or
deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement.
23. Headings. The headings in this Agreement are for convenience only and
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shall not affect the construction of this Agreement.
24. Entire Agreement; Modification. This Agreement constitutes the entire
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understanding between the parties with respect to its subject matter. It
supersedes and cancels all prior agreements and understandings among the parties
relating to its subject matter. This Agreement may not be amended or
supplemented, except by subsequent written agreement of the parties which
specifically states that it is intended to be an amendment or supplement to this
Agreement, signed by the parties hereto. No course of dealing or custom shall be
referred to as modifying any of the terms and conditions of this Agreement.
25. Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be enforceable against the
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parties actually executing such counterparts, and all of which together shall
constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on this 8th day of January, 1997.
/s/ Xxxxxxx Xxxxxxx
---------------------------------
Xxxxxxx Xxxxxxx
/s/ Xxxxxx Xxxxxxx
---------------------------------
Xxxxxx Xxxxxxx
ALR REPORTING, INC.
By: /s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx, M.D.
Chairman and
Chief Executive Officer
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INDEMNIFICATION
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In order to induce the Buyer to execute this Stock Purchase Agreement, the
undersigned,the spouses of Sellers, agree in the event (i) of their respective
spouse's death prior to the time a Loss occurs with respect to a Tax Claim, as
defined in Section 10.1 hereof or (ii) their respective spouse has transferred
assets to her (in her individual name or jointly with the transferor) after the
date hereof and prior to death, to indemnify and hold Buyer harmless with
respect to fifty percent (50%) of any Tax Claim, to the extent provided and in
accordance with the terms of Section 10 hereof, provided, however, that (X) any
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payment made by Sellers and the other signatory below under Section 10 shall be
deemed a payment made by the undersigned and (Y) in the event this
indemnification results from (ii) above, an amount not in excess of the amount
transferred.
/s/ Xxxxxxxx X. Xxxxxxx
---------------------------------
/s/ Xxxxxx Xxxxxxx
---------------------------------
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DISCLOSURE LETTER
1. A Sales/Use Tax Audit for the years 1990/1995 is in process. An assessment in
the approximate amount of $17,500 was made and paid. Awaiting final interest
calculation from New York State.
2. The Labor Contract with Federation of Shorthand Reporters has technically
expired. No representation is made with respect to the terms and conditions of
any new or extended contract.
3. As at the Effective Time, the Companies have placed for collection with their
attorneys approximately $113,600.
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