Exhibit 10.1
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT ("Agreement") is made and entered into as of
October 18, 2004, by and between XXXXXXXXXXXX.XXX, INC., a Delaware corporation
(the "Seller"), and National Arbitration and Mediation, Inc., a New York
corporation (the "Buyer").
Capitalized terms used but not otherwise defined herein shall have the
respective meanings in the Appendix of Definitions.
RECITALS:
WHEREAS, Seller owns an arbitration and mediation services business (the
"Business"); and
WHEREAS, Buyer desires to acquire the Business in exchange for the
consideration set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
representations, warranties, covenants and promises contained herein, the
adequacy and sufficiency of which are hereby acknowledged, and intending to be
legally bound hereby, the parties hereto agree as follows:
1. PURCHASE AND SALE OF ASSETS/ASSUMPTION OF LIABILITIES.
1.1. Purchased Assets. On the terms and subject to the conditions
contained herein, Seller agrees to sell, assign, transfer, convey and deliver to
Buyer, and Buyer agrees to purchase from Seller at the Closing, all of Seller's
rights, title and interest in and to all of the assets of the Seller (the
"Purchased Assets"), except for (i) $200,000 of cash less (a) transaction costs
including, without limitation, legal, accounting, tax advice, fairness opinion
and printing and mailing of the proxy statement, and (b) the transactional and
due diligence costs related to any potential acquisition by the Seller, and (ii)
60 percent of the excess amount of the Remaining Net Capital before Commitments
over $380,462 on the Closing Date, if any.
1.2. Assumed Liabilities. On the terms and subject to the conditions
contained herein, on the Closing Date, Buyer shall assume and agree to perform
and discharge, when and as due, all liabilities and obligations of the Seller,
as the same may exist at or accrue following the Closing Date as they relate to
the Business, including, without limitations, all employment agreements, the
EEOC claims and leases.
1.3. Israel Waiver. In the event the Closing occurs, Mr. Israel hereby
acknowledges that he shall not trigger his change-in-control provision under his
employment agreement as a result of the Buyer acquiring the Business.
1.4. Liabilities Not Assumed. Buyer shall not assume or be liable for
Taxes, if any, for which Seller is responsible for as a result of this
transaction nor shall Buyer assume or be
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liable for liabilities not relating to the Business and any shareholder actions
(the "Excluded Liabilities").
2. CLOSING.
2.1. Time; Place. The consummation of the transactions contemplated by
this Agreement (the "Closing") shall take place at the offices of Xxxxxx Xxxx &
Priest LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m., Eastern
Time, on a date to be mutually agreed upon by the second business day following
the approval of the Sale by the requisite number of shareholders of the Seller,
or as soon thereafter as the conditions in Section 6 are satisfied or waived by
the applicable party, or at such other time, date or place as may be mutually
agreed upon by Buyer and Seller and in no event later than March 31, 2005 (the
"Closing Date"). At the Closing, (i) Seller shall sell, assign, transfer, convey
and deliver to Buyer (or its designee) the Purchased Assets; (ii) Buyer shall
assume the Assumed Liabilities; (iii) Seller will deliver to Buyer the various
agreements, certificates and documents, referred to in Section 6.2.6; and (iv)
Buyer will deliver to Seller the various agreements, certificates and documents
referred to in Section 6.1.5.
2.2. Effective Time. Title to the Purchased Assets shall be deemed to have
been transferred to Buyer at 11:59 p.m. (Eastern Time) on the Closing Date.
3. REPRESENTATIONS AND WARRANTIES OF SELLER.
Seller represents and warrants to Buyer that the statements contained in
this Section 3 are true and correct on the date hereof and at Closing, except
(i) as in the disclosure schedule provided by Seller to Buyer on the date hereof
and attached hereto (the "Disclosure Schedule"), if any, (ii) to the extent of
changes or developments expressly contemplated by the terms of this Agreement,
and (iii) except for representations and warranties that speak as of a specific
date or time (which need only to be true and correct as of such date or time).
3.1. Organization, Power and Qualification. Seller is a corporation, duly
organized, validly existing and in good standing under the Laws of the
jurisdiction of its organization, and has all requisite corporate power and
authority to own or hold under lease its properties and assets and to carry on
the Business as now conducted. Seller is duly qualified to do business and is in
good standing as a foreign corporation in every jurisdiction in which the
operation or ownership of the Purchased Assets requires such qualification,
except where the failure to so qualify would not be reasonably likely to have a
Material Adverse Effect.
3.2. Authorization; Enforceability. Seller has all necessary power and
authority to make, execute and deliver this Agreement and all other agreements
and documents to be executed and delivered by it pursuant hereto, and to
consummate the transactions contemplated hereby and thereby. The execution,
delivery and performance of this Agreement and the other agreements and
documents to be executed and delivered herewith, and the consummation of the
transactions contemplated hereby and thereby, have been duly approved and
authorized by all necessary corporate actions on behalf of Seller or will be at
the time of Closing. This Agreement constitutes, and all other agreements and
documents to be executed and delivered by Seller will, upon execution by Buyer,
constitute the valid and binding agreements of Seller, enforceable in
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accordance with their respective terms, except as limited by applicable
bankruptcy, insolvency, reorganization, moratorium, and other Laws of general
application affecting the enforcement of creditors' rights generally, and as
limited by Laws relating to the availability of specific performance, injunctive
relief or other equitable remedies.
4. REPRESENTATIONS AND WARRANTIES OF BUYER.
As an inducement for Seller to enter into this Agreement, Buyer represents
and warrants to Seller that the statements contained in this Section 6 are true
and correct on the date hereof and at Closing, except (i) to the extent of
changes or developments expressly contemplated by the terms of this Agreement
and (ii) except for representations and warranties that speak as of a specific
date or time (which need only to be true and correct as of such date or time).
4.1. Organization. Buyer is a corporation, duly organized, validly
existing, and in good standing under the Laws of the jurisdiction of its
incorporation.
4.2. Authorization; Enforceability. Buyer has all requisite power and
authority to execute and deliver this Agreement and all other agreements and
documents to be executed and delivered by Buyer pursuant hereto and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement and all other agreements and documents to be executed and
delivered by Buyer pursuant hereto, and the consummation of the transactions
contemplated hereby and thereby have been duly approved and authorized by all
necessary action on Buyer's part and this Agreement and all other agreements and
documents to be executed and delivered by Buyer pursuant hereto constitute the
valid and binding agreements of Buyer, enforceable in accordance with their
respective terms, except as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, and other Laws of general application affecting the
enforcement of creditors' rights generally, and as limited by Laws relating to
the availability of specific performance, injunctive relief or other equitable
remedies.
5. COVENANTS OF THE PARTIES.
5.1. Buyer's Covenants. Following the Closing Date, Buyer agrees to
provide, without charge, the services of Xx. Xxxxxxxx-Xxxxxxx as CFO of the
Seller for the earlier of (i) a one-year period from the Closing Date as long as
Xx. Xxxxxxxx-Xxxxxxx remains an employee of Buyer and (ii) the closing of a
Seller Transaction. In the event Xx. Xxxxxxxx-Xxxxxxx is no longer an employee
of Buyer, then Buyer shall substitute Xx. Xxxxxx Xxxx in her place. The Buyer
shall also provide Xx. Xxxxxxxx-Xxxxxxx the necessary and reasonable support to
carry out the reporting obligations of the Company during such period without
any charge.
5.2. Taxes.
5.2.1. Cooperation. From and after the Signing Date, Seller and
Buyer shall (and shall cause their respective Affiliates to) cooperate fully
with each other and make available or cause to be made available to each other
for consultation, inspection and copying (at such other party's expense) in a
timely fashion such personnel, Tax data, relevant Tax Returns or portions
thereof and filings, files, books, records, documents, financial, technical and
operating data, computer records and other information as may be reasonably
required (a) for the preparation by such other party of any Tax Returns or (b)
in connection with any Tax audit or proceeding
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including one party (or an Affiliate thereof) to the extent such Tax audit or
proceeding relates to or arises from the transactions contemplated by this
Agreement.
5.2.2. Allocation of Consideration. Buyer's Consideration shall be
allocated among the Purchased Assets, and the value of the Purchased Assets and
any liabilities assumed by Seller shall be allocated among Buyer's
Consideration, in a manner consistent with a schedule to be jointly prepared by
the parties on or prior to the Closing Date (the "Allocation Schedule"), and
which shall be prepared in accordance with Treas. Reg. Section 1.1060-1 (or any
comparable provision of state or local Tax Law) or any successor provision. The
parties agree that they will report the federal, state, local and other Tax
consequences of the purchase and sale hereunder (including in filings on IRS
Form 8594) in a manner consistent with such allocation and that they will not
take any position inconsistent therewith in connection with any Tax Return,
refund claim, litigation or otherwise, unless and to the extent required to do
so pursuant to applicable law. Seller and Buyer shall cooperate in the filing of
any forms (including Form 8594) with respect to such allocation. Notwithstanding
any other provision of this Agreement, the foregoing Section 5.2.2 shall survive
any termination or expiration of this Agreement.
5.2.3. Transfer Taxes. Buyer and Seller shall each be equally
responsible for any sales, use, excise, transfer, or other similar Tax imposed
with respect to the transactions provided for in this Agreement, and any
interest or penalties related thereto, and will coordinate the payment of such
Taxes and other amounts with the other party. As between Buyer, on the one hand,
and Seller, on the other hand, the party that has the primary responsibility
under applicable Law for filing any Tax Returns required to be filed in respect
of such Taxes shall prepare and timely file such Tax Returns; provided that such
party's preparation of such Tax Returns shall be subject to the other party's
approval, which approval shall not be unreasonably withheld. Buyer and Seller
shall cooperate and make all efforts to obtain any available exemptions from
such Taxes.
5.2.4. Proration of Taxes. All personal property Taxes or similar ad
valorem obligations levied with respect to the Purchased Assets for any taxable
period that includes the day before the Closing Date and ends after the Closing
Date shall be prorated between Seller and Buyer as of 12:01 A.M. on the Closing
Date. If any Taxes subject to proration are paid by Buyer, on the one hand or
Seller, on the other hand, the proportionate amount of such Taxes paid (or in
the event any portion of such Taxes previously paid is received as a refund,
such refund net of any Taxes payable with respect to the receipt of any interest
included in such refund) shall be paid promptly by (or to) the other after the
payment of such Taxes (or promptly following the receipt of any such refund).
5.2.5. Unbilled Transactional Taxes. If a Tax assessment is levied
upon any party by an authorized Tax jurisdiction for unbilled transactional
Taxes that are the obligation of the other party under this Agreement, then the
non-assessed party shall reimburse the assessed party for those Taxes including
any interest and penalty.
5.2.6. Tax Structure Disclosure. Notwithstanding anything herein to
the contrary, each party to the transactions contemplated herein (and each
Affiliate and Person acting on behalf of any such party) agrees that each party
(and each employee, representative, and other agent of such party) may disclose
to any and all Persons, of any kind, the tax treatment and tax
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structure of the transaction and all materials of any kind (including opinions
or other tax analyses) that are provided to such party or such Person relating
to such tax treatment and tax structure, except to the extent necessary to
comply with any applicable federal or state securities laws; provided, however,
that such disclosure may not be made until the earliest of the date of any
public announcement of the discussions relating to the transaction, the date of
any public announcement of the transaction and the date of the execution of this
Agreement. This authorization is not intended to permit disclosure of any other
information including: (i) any portion of any materials to the extent not
related to the tax treatment or tax structure of the transaction; (ii) the
identities of participants or potential participants in the transaction; (iii)
the existence or status of any negotiations; (iv) any pricing or financial
information (except to the extent such pricing or financial information is
related to the tax treatment or tax structure of the transaction); or (v) any
other term or detail not relevant to the tax treatment or the tax structure of
the transaction.
5.3. Post Closing Adjustments. The parties shall cooperate with each other
following the Closing and shall make all adjustments necessary to insure that
each party receives the benefits they are entitled to under the Agreement.
5.4. Shareholders Vote. The Seller shall hold a meeting of shareholders to
approve the Sale in a timely manner.
6. CONDITIONS TO CLOSING.
6.1. Conditions to Buyer's Obligations. The obligations of Buyer to
consummate the transactions contemplated by this Agreement shall be subject to
the fulfillment at or prior to Closing of each of the following conditions:
6.1.1. Representations and Warranties; Performance of Obligations.
(i) All representations and warranties made by Seller contained in this
Agreement shall be true and correct in all material respects on the date hereof
and as of the Closing Date as though such representations and warranties were
made as of the Closing Date, except (a) for changes contemplated or permitted by
this Agreement, (b) for those representations and warranties that address
matters only as of a particular date (which shall be true and correct as of such
date, subject to clause (c) below), and (c) where the failure of the
representations and warranties to be true and correct would not reasonably be
expected to result, individually or in the aggregate, in a Material Adverse
Effect; and (ii) Seller shall have duly performed or complied in all material
respects with all of the obligations to be performed or complied with it under
the terms of this Agreement on or prior to Closing.
6.1.2. Certificate. Seller shall have delivered to Buyer a
certificate of a duly authorized officer, dated as of the Closing Date,
certifying to the effects in Section 6.1.1.
6.1.3. No Material Adverse Change. No Material Adverse Effect shall
have occurred with respect to the Business.
6.1.4. No Suit. No suit, action or other proceeding or investigation
shall, to the knowledge of any party to this Agreement, be pending before or by
any Governmental Authority
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or by any third party seeking to restrain or prohibit the consummation of the
Sale, or seeking damages as a result thereof.
6.1.5. Closing Documents. The following items shall have been
delivered to Buyer, or waived by Buyer:
(i) A duly executed xxxx of sale in form and substance
reasonably satisfactory to Buyer;
(ii) The officer's certificates required to be delivered
pursuant to Section 6.1.2;
(iii) All other instruments of conveyance and transfer, in
form and substance reasonably acceptable to Buyer, as may be
necessary to convey the Business to Buyer.
6.2. Conditions to Seller's Obligations. The obligations of Seller to
consummate the transactions contemplated by this Agreement shall be subject to
the fulfillment at or prior to each Closing of each of the following conditions:
6.2.1. Representations and Warranties; Performance of Obligations.
The representations and warranties of Buyer contained in this Agreement shall be
true and correct in all material respects on the date hereof and as of the
Closing Date as though such representations and warranties were made as of the
Closing Date. Buyer shall have duly performed or complied with all of the
obligations to be performed or complied with by it under the terms of this
Agreement on or prior to Closing.
6.2.2. Certificate. Buyer shall have delivered to Seller a
certificate of a duly authorized officer, dated as of the Closing Date,
certifying to the effects in Section 6.2.1.
6.2.3. No Suit. No suit, action or other proceeding or investigation
shall, to the knowledge of any party to this Agreement, be pending before or by
any Governmental Authority or by any third party seeking to restrain or prohibit
the consummation of the Sale.
6.2.4. Fairness Opinion. The Company shall have received a fairness
opinion from Capitalink, or any other firm chosen solely by the Company,
expressing the opinion that the Sale is fair to the non-Affiliated shareholders
of the Company.
6.2.5. Shareholder Vote. The Company shall have received the
requisite vote of its shareholders approving the Sale.
6.2.6. Closing Documents. The following items shall have been
delivered to Seller:
(i) The officer's certificate required to be delivered
pursuant to Section 6.2.2; and
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(ii) All other instruments of transfer, in form and substance
reasonably acceptable to Seller, as may be necessary for Buyer to
assume the Assumed Liabilities.
7. TERMINATION.
7.1. Termination. This Agreement may be terminated at any time prior to
Closing upon notice:
7.1.1. By Buyer, if there has been a breach by Seller of any
representation, warranty, covenant or agreement contained in this Agreement
which would result in a failure of a condition in Section 6.1; and such breach
cannot be cured within 30 days from notice of such event;
7.1.2. By Seller, (i) if there has been a breach by Buyer of any
representation, warranty, covenant or agreement contained in this Agreement
which failure cannot be cured within 30 days from notice of such event, (ii) if
the requisite number of votes of shareholders approving the Sale is not
received, or (iii) in the event the Seller receives an offer for the Business
that the Board of Directors of the Seller believes, in the exercise of their
fiduciary duty, to be better for the shareholders of the Seller than the Buyer's
offer (the "Competing Offer") and the Board accepts such offer;
7.1.3. By the mutual written consent of the parties; or
7.1.4. If the Closing does not take place on or before March 31,
2005 and such failure to effectuate the Closing is not caused by the terminating
party.
7.2. Effect of Termination. In the event of the termination of this
Agreement as provided in Section 7.1, this Agreement shall become void and no
party to this Agreement shall have any liability or further obligation to any
other party; provided, however, that the provisions of Sections 9.4, 9.5, 9.7
and 9.17 shall remain in full force and effect; provided, further, however, that
nothing herein shall relieve any party for willful breach. If the Seller accepts
a Competing Offer and terminates this Agreement, it shall pay the Buyer $25,000
within five (5) business days of closing the Competing Offer to cover Buyer's
reasonable out-of-pocket costs..
8. INDEMNIFICATION/LIMITATION ON LIABILITY.
8.1. Indemnification of Buyer. Seller covenants and agrees with Buyer that
it shall reimburse and indemnify and hold Buyer and its Affiliates, and their
respective directors, officers, employees and agents (the "Buyer Indemnified
Party"), harmless from, against and in respect of any and all actions, suits,
claims, proceedings, assessments, damages, fines, judgments, liabilities, costs
and expenses, (including, without limitation, reasonable attorneys' fees, but
excluding any incidental, consequential or punitive damages) ("Losses") as and
when incurred by any Buyer Indemnified Party that result from:
8.1.1. Any breach of any representations or warranties of Seller
under this Agreement;
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8.1.2. Any breach of, or failure to perform, any covenants or
agreements of Seller under this Agreement; and
8.1.3. The Excluded Liabilities.
8.2. Indemnification of Seller. Buyer covenants and agrees with Seller
that it shall reimburse and indemnify and hold Seller and its Affiliates, and
their respective directors, officers, employees and agents (the "Seller
Indemnified Party," together with the Buyer Indemnified Party, collectively
referred to as the "Indemnified Party"), harmless from, against and in respect
of any and all Losses as and when incurred by any Seller Indemnified Party that
result from:
8.2.1. Any breach of any representations or warranties of Buyer
under this Agreement;
8.2.2. Any breach of, or failure to perform, any covenants or
agreements of Buyer under this Agreement; and
8.2.3. The ownership and operation of the Business, the Purchased
Assets or the Assumed Liabilities.
8.3. Procedure. Each Indemnified Party shall give either Buyer or Seller,
as applicable, in its role as an indemnifying party (the "Indemnifying Party"),
prompt notice of any Loss asserted or threatened against such Indemnified Party
on the basis of which such party intends to seek indemnification (but the
obligations of the Indemnifying Party shall not be conditioned upon receipt of
such notice, except to the extent that the Indemnifying Party is actually
prejudiced by such failure to receive such notice). The Indemnified Party will
provide such other information with respect thereto as the Indemnifying Party
may be reasonably request. To the extent that a Loss arises from a third party
claim against an Indemnified Party, the Indemnifying Party shall promptly assume
the defense of any Indemnified Party with counsel reasonably satisfactory to
such Indemnified Party and the fees and expenses of such counsel shall be at the
sole cost and expense of the Indemnifying Party. Notwithstanding the foregoing,
any Indemnified Party shall be entitled, at its sole expense, to employ counsel
separate from counsel for the Indemnifying Party and from any other party in
such action, proceeding, or investigation. Any settlement of a Loss for other
than money damages must have the prior written approval of the Indemnified
Party, which approval shall not be unreasonably withheld or delayed.
8.4. Cooperation. The parties agree reasonably to cooperate with one
another and their respective counsel in contesting and defending any Loss in any
manner the other party may reasonably request (including furnishing evidence and
testimony and granting reasonable access to the pertinent books, records and
personnel (to the extent such personnel are available) in their possession or
control).
8.5. Tax Indemnity. Seller covenants and agrees that it shall reimburse,
indemnify and hold Buyer and its Affiliates harmless from, against, and in
respect of, any and all demands, investigations, audits and Losses (including
reasonable attorneys' and accountants' fees and expenses) as and when sustained,
incurred or suffered by Buyer or any of its Affiliates, directly or indirectly,
by reason of or resulting from any Tax liability of Seller or any liability of
Seller
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for the unpaid Taxes of any Person under Treas. Reg. 1.1502-6 (or any similar
provision of state, local or foreign law), as a transferee or successor, by
contract, or otherwise, including but not limited to, any such liability of
Seller for any state or local sales or use Tax. Notwithstanding any other
provision of this Agreement to the contrary, any obligation of Seller pursuant
to this Section 8.5 shall be unconditional and absolute and shall survive until
30 days after the expiration of the applicable statute of limitations, provided
that, if on the last date of such survival period Seller is under audit or shall
have received a notice of any Tax audit, such obligations shall survive until
the date on which all such audits are completely and finally resolved.
8.6. Survival. The representations, warranties and indemnities made by
Seller, on the one hand, and by Buyer, on the other hand, under this Agreement
shall survive for a period of two years (the "Survival Period") from the Closing
Date, provided, however, that any indemnity with respect to Taxes shall survive
until 30 days after the expiration of the applicable statute of limitations, and
provided, further, that this limitation shall not extinguish any claim for
indemnification of Seller or Buyer, as applicable, who has given notice of a
Loss prior to the end of the Survival Period. The covenants and agreements of
the parties hereto shall survive the Closing in accordance with their terms.
8.7. Exclusive Remedy. The provisions of this Section 8 shall constitute
the sole and exclusive remedy with respect to any and all claims between the
parties hereto for money damages arising under or arising out of this Agreement
or the transactions contemplated hereby.
9. GENERAL PROVISIONS.
The parties further covenant and agree as follows:
9.1. Entire Agreement. This Agreement and the other agreements and
documents referred to herein express the entire understanding of the parties
with respect to the subject matter hereof. Any previous agreements or
understandings between the parties regarding the subject matter hereof, are
merged into and superseded by this Agreement.
9.2. Waiver. Any of the terms or conditions of this Agreement may be
waived at any time by the party or parties entitled to the benefit thereof, but
only by a written notice signed by the party or parties waiving such terms or
conditions.
9.3. Amendments. This Agreement may be amended, supplemented or
interpreted at any time only by written instrument duly executed by each of the
parties.
9.4. Expenses. Except as otherwise expressly provided herein, the parties
shall each pay its or their own expenses, including, without limitation, the
expenses of its or their own counsel, investment bankers and accountants,
incurred in connection with the preparation, execution and delivery of this
Agreement and the other agreements and documents referred to herein and the
consummation of the transactions contemplated hereby and thereby.
9.5. Notices. All notices, requests, demands and other communications
required or permitted to be given hereunder shall be by hand-delivery, certified
or registered mail, return receipt requested; telecopier, or overnight courier
to the parties below. Such notices shall be
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deemed given: at the time personally delivered, if delivered by hand; at the
time received if sent certified or registered mail; when receipt is acknowledged
by facsimile equipment if telecopied; and the third business day after timely
delivery to the courier for overnight delivery, if sent by a nationally
recognized overnight courier service.
If to Seller: XXXXXXXXXXXX.XXX, Inc.
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: CEO
If to Buyer: National Arbitration and Mediation, Inc.
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: CEO
9.6. Assignment. Neither this Agreement nor any of the rights and
obligations hereunder may be assigned by any party without the prior written
consent of the other parties; except, that Buyer may assign all or part of its
rights under this Agreement and may delegate all or part of its obligations
under this Agreement to an Affiliate without consent. In the event of any such
assignment and delegation, the term "Buyer" as used in this Agreement shall be
deemed to refer to each such assignee of Buyer and shall be deemed to include
both Buyer and each such assignee where appropriate. Subject to the foregoing,
this Agreement shall be binding upon and inure to the benefit of and be
enforceable by the respective heirs, legal representatives, successors and
permitted assigns of the parties.
9.7. Commissions and Finder's Fees. Buyer on the one hand, and Seller on
the other hand, represent and warrant that none of them has retained or used the
services of any individual, firm or corporation in such manner as to entitle
such individual, firm or corporation to any compensation for brokers' or
finders' fees with respect to the transactions contemplated hereby for which the
other may be liable.
9.8. Severability. If any provision of this Agreement is held by a court
of competent jurisdiction or other authority to be invalid, illegal, void or
unenforceable, for any reason, such provision shall be reformed to the maximum
extent permitted so as to preserve the parties' original intent, failing which,
it shall be severed from this Agreement with the balance of the provision of
this Agreement continuing in full force and effect and shall in no way be
affected, impaired or invalidated, as long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to either party.
9.9. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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9.10. Headings. The headings of the Sections and the subsections of this
Agreement are inserted for convenience of reference only and shall not
constitute a part of this Agreement.
9.11. Interpretation. In this Agreement, unless a clear contrary intention
appears, the singular number includes the plural number and vice versa.
9.12. Instruments of Further Assurance. Each of the parties hereto agrees,
upon the request of the other party, from time to time to execute and deliver to
such other party or parties all such instruments and documents of further
assurance or otherwise as shall be reasonable under the circumstances, and to do
any and all such acts and things as may reasonably be required to perfect
transfer of the Purchased Assets or otherwise to carry out the obligations of
such requested party hereunder.
9.13. Publicity. Neither Buyer nor Seller shall make any press release or
public announcement in connection with the transactions contemplated hereby
without the prior written consent of the other party or, if required by Law,
without prior consultation with the other party.
9.14. No Third Party Beneficiaries. Except for the provisions of Section 8
relating to Indemnified Parties under this Agreement, (i) the provisions of this
Agreement are solely for the benefit of the parties hereto and their permitted
assignees and are not intended to confer upon any Person, except the parties
hereto, any rights or remedies hereunder, and (ii) there are no third party
beneficiaries of this Agreement and this Agreement shall not provide any third
Person with any remedy, claim, liability, reimbursement, claim of action or
other right in excess of those existing without reference to this Agreement.
9.15. Waiver of Trial by Jury. The parties hereby knowingly, voluntarily
and intentionally waive any right they may have to a trial by jury in respect to
any litigation arising out of, under or in connection with this Agreement, or
any course of conduct, course of dealing, statements (whether verbal or written)
or actions of any party hereto. This provision is a material inducement for
Buyer and Seller entering into this Agreement.
9.16. Cumulative Remedies. All rights and remedies of the parties hereto
are cumulative of each other and of every other right or remedy such parties may
otherwise have at Law or in equity, and the exercise of one or more rights or
remedies shall not prejudice or impair the concurrent or subsequent exercise of
other rights or remedies.
9.17. Governing Law; Exclusive Jurisdiction. This Agreement shall be
governed, construed and enforced in accordance with the Laws of the State of New
York, excluding any choice of Law rules which may direct the application of the
Laws of another jurisdiction. Any and all claims, actions, causes of action,
suits and proceedings related to the foregoing shall be filed and maintained
only in the state courts of the State of New York and the parties hereby consent
to and submit to the exclusive jurisdiction of such Court.
9.18. Waiver of Bulk Transfer Laws. Buyer hereby waives compliance by
Seller with the provisions of the bulk transfer Laws (of any jurisdiction) in
connection with the transactions contemplated by this Agreement.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
on the date first written above.
XXXXXXXXXXXX.XXX, INC.
By: /s/ Xxxxxxxx Xxxxxxxx-Xxxxxxx
------------------------------------
Name: Xxxxxxxx Xxxxxxxx-Xxxxxxx
Title: Vice President
NATIONAL ARBITRATION AND MEDIATION, INC.
By: /s/ Roy Israel
------------------------------------
Name: Roy Israel
Title: President
/s/ Roy Israel
----------------------------------------------
Roy Israel, Solely with respect to Section 1.3
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APPENDIX OF DEFINITIONS
The following definitions shall be applicable for purposes of the
Agreement except as otherwise specifically provided to the contrary in the text
of the Agreement.
"Affiliates" shall mean, with respect to any entity, any other entity
controlling, controlled by or under common control with such entity, whether
directly or indirectly through one or more intermediaries, but excluding the
officers or directors of an entity or entities controlled by an officer or
director.
"Agreement" shall have the meaning in the Preamble.
"Allocation Schedule" shall have the meaning in Section 5.2.2.
"Assumed Liabilities" shall have the meaning in Section 1.2.
"Business" shall have the meaning in the Recitals.
"Buyer" shall have the meaning in the Preamble.
"Buyer Indemnified Party" shall have the meaning in Section 8.1.
"Closing" shall have the meaning in Section 2.1.
"Closing Date" shall have the meaning in Section 2.1.
"Competing Offer" shall have the meaning in Section 7.1.2.
"Disclosure Schedule" shall have the meaning in Section 3.
"Excluded Liabilities" shall have the meaning in Section 1.4.
"Indemnified Party" shall have the meaning in Section 8.2.
"Indemnifying Party" shall have the meaning in Section 8.3.
"IRS" shall mean the United States Internal Revenue Service.
"Laws" shall mean any federal, state, local or foreign statute, law,
ordinance, regulation, rule, code, order, other requirement or rule of law.
"Losses" shall have the meaning in Section 8.1.
"Material Adverse Effect" shall mean any change or effect that is, or is
reasonably likely to be, materially adverse to: (i) the assets or properties
constituting the Business, (ii) the Assumed Liabilities, or (iii) the ability of
Seller to fulfill its obligations hereunder.
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"Remaining Net Capital Before Commitments" shall mean the fair market
value of the assets purchased less the following: (i) recorded liabilities
assumed; (ii) commitment due to American Lawyer Media in the amount of $75,854
and (iii) $200,000 of cash to remain with the Seller (to be adjusted based on
the timing of payments for the transaction costs).
"Person" shall mean an individual, a partnership, a corporation, an
association, a joint stock company, limited liability company, a trust, a joint
venture, an unincorporated organization, or a governmental entity (or
department, agency or political subdivision thereof).
"Purchased Assets" shall have the meaning in Section 1.1.
"Sale" shall mean the sale of the Business as contemplated by the
Agreement.
"Seller" shall have the meaning in the Preamble.
"Seller Indemnified Party" shall have the meaning in Section 8.2.
"Seller Transaction" shall mean a transaction by which the Seller acquires
a new business.
"Survival Period" shall have the meaning in Section 8.6.
"Taxes" shall mean taxes, charges, fees, duties, levies or other
assessments, including income, gross receipts, net proceeds, ad valorem,
turnover, real and personal property (tangible and intangible), sales, use,
franchise, excise, value added, stamp, leasing, lease, user, transfer, fuel,
excess profits, occupational, interest equalization, windfall profits,
severance, employee's withholding, other withholding, unemployment and social
security taxes, which are imposed by any Governmental Authority, including in
each case any interest, penalties or additions to tax attributable thereto,
whether disputed or not, and including any obligation to indemnify or otherwise
assume or succeed to the Tax liability of any other Person.
"Tax Return" shall mean any return, declaration, report, claim for refund,
or information return or statement relating to Taxes, including any schedule or
attachment thereto, and including any amendment thereof.
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