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EXHIBIT 10.16
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of February 29, 2000,
is entered into by and among American National Financial, Inc., a California
corporation (the "Purchaser"), Xxxxxxx X. Xxxxxx, an individual ("Prandi"), and
Xxxxxx X. Xxxxxxx, an individual ("Xxxxxxx," and collectively with Prandi, the
"Sellers"). This Agreement contemplates a transaction in which the Purchaser
will purchase for cash all of the issued and outstanding capital stock of
Pioneer Land Title Corporation, a New York corporation ("Pioneer"), and of 1
Stop Cyber Mall, Inc., a New York corporation ("1 Stop"), from the Sellers. In
consideration of the mutual agreements contained herein and for other good and
valuable consideration, the value, receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows.
Terms and Conditions
Definitions. For purposes of this Agreement, the following terms have
the meanings set forth below.
"1 Stop" has the meaning set forth in the Preamble to this Agreement.
"Affiliate" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Securities Exchange Act of 1934, as amended.
"Affiliated Groups" means any affiliated group within the meaning of
Section 1504(a) of the Code or any similar provision of state, local or foreign
Law.
"Agency Agreements" means (a) that certain Agency Agreement, dated May
6, 1992, by and between Commonwealth Land Title Insurance Company
("Commonwealth") and Pioneer Abstract Corp., the predecessor-in-interest of
Pioneer; (b) that certain Non-Exclusive Title Agency Agreement, dated March 26,
1991, by and between Title Insurance Company of Minnesota,
predecessor-in-interest of Old Republic Title Insurance Company ("Old
Republic"), and Pioneer Abstract Corp.; and (c) that certain Issuing Agency
Contract, dated May 12, 1997, by and between Chicago Title Insurance Company
("Chicago Title") and Pioneer; in each case as amended to date.
"Agreement" means this Stock Purchase Agreement, as the same may be
amended from time to time in accordance with the terms hereof.
"Ancillary Agreements" means (i) the employment agreement between
National Title Insurance Company of New York, Inc., a New York corporation, and
Prandi; (ii) the employment agreement between Pioneer and Xxxxxxx; and (iii) the
Promissory Notes.
"Arbiter" has the meaning set forth in Section 2.3(c).
"Auditors Report" has the meaning set forth in Section 2.3(b).
"Closing" has the meaning set forth in Section 3.1.
"Closing Date" has the meaning set forth in Section 3.2.
"Closing Date Balance Sheet" has the meaning set forth in Section
2.3(a).
"Closing Date Net Asset Value" means the net asset value of Pioneer at
the Closing Date, as set forth on the Closing Date Balance Sheet.
"Code" means the Internal Revenue Code of 1986, as amended.
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"Confidential Information" means any information, in whatever form or
medium, concerning the operations or affairs of Pioneer.
"Contracts" means, collectively, all contracts, agreements, commitments,
leases, licenses, instruments, bids and proposals to which a Pioneer Company is
a party as of the Closing Date, including, without limitation, those listed on
Schedule 4.11, all unfilled orders outstanding as of the Closing Date for the
purchase of goods or services by a Pioneer Company and all unfilled orders
outstanding as of the Closing Date for the sale of goods or services by a
Pioneer Company.
"Disclosure Schedules" means, collectively, the various Schedules
referred to in this Agreement.
"Employee Benefit Plan" means an Employee Pension Benefit Plan or an
Employee Welfare Benefit Plan, where no distinction is required by the context
in which the term is used.
"Employee Pension Benefit Plan" has the meaning set forth in Section
3(2) of ERISA.
"Employee Welfare Benefit Plan" has the meaning set forth in Section
3(2) of ERISA.
"Environmental Laws" means any Law with respect to the preservation of
the environment or the promotion of worker health and safety, including any Law
relating to Hazardous Materials, drinking water, surface water, groundwater,
wetlands, landfills, open dumps, storage tanks, underground storage tanks, solid
waste, waste water, storm water run-off, noises, odors, air emissions, waste
emissions or xxxxx. Without limiting the generality of the foregoing, the term
will encompass each of the following statutes and the regulations promulgated
thereunder, and any similar applicable state, local or foreign Law, each as
amended (a) the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, (b) the Solid Waste Disposal Act, (c) the Hazardous
Materials Transportation Act, (d) the Toxic Substances Control Act, (e) the
Clean Water Act, (f) the Clean Air Act, (g) the Safe Drinking Water Act, (h) the
National Environmental Policy Act of 1969, (i) the Superfund Amendments and
Reauthorization Act of 1986, (j) Title III of the Superfund Amendments and
Reauthorization Act, (k) the Federal Insecticide, Fungicide and Rodenticide Act
and (k) the provisions of the Occupational Safety and Health Act of 1970
relating to the handling of and exposure to Hazardous Materials and similar
substances.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Xxxxxxx" has the meaning set forth in the Preamble to this Agreement.
"Financial Statements" has the meaning set forth in Section 4.5(a).
"GAAP" means United States generally accepted accounting principles, as
in effect as of the date of this Agreement.
"Governmental Entity" means any government or any agency, bureau, board,
commission, court, department, official, political subdivision, tribunal or
other instrumentality of any government, whether federal, state or local,
domestic or foreign.
"Government Contracts" means a Contract between a Pioneer Company and
any Governmental Entity, including any facilities contract for the use of
government-owned facilities.
"Government Subcontract" means any Contract that is a subcontract
between a Pioneer Company and any third party relating to a contract between
such third party and any Governmental Entity.
"Hazardous Materials" means each and every element, compound, chemical
mixture, contaminant, pollutant, material, waste or other substance that is
defined, determined or identified as hazardous or toxic under any Environmental
Law or the Release of which is prohibited under any Environmental Law. Without
limiting the generality of the foregoing, the term will include (a) "hazardous
substances" as defined in the Comprehensive
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Environmental Response, Compensation, and Liability Act of 1980, the Superfund
Amendments and Reauthorization Act of 1986, or Title HI of the Superfund
Amendments and Reauthorization Act and regulations promulgated thereunder, each
as amended, (b) "hazardous waste" as defined in the Solid Waste Disposal Act and
regulations promulgated thereunder, each as amended, (c) "hazardous materials"
as defined in the Hazardous Materials Transportation Act and the regulations
promulgated thereunder, each as amended, (d) "chemical substance or mixture" as
defined in the Toxic Substances Control Act and regulation promulgated
thereunder, each as amended, (e) petroleum and petroleum products and byproducts
and (f) asbestos.
"Indemnified Party" has the meaning set forth in Section 11.5.
"Indemnifying Party" has the meaning set forth in Section 11.5.
"Initial Purchase Price" has the meaning set forth in Section 2.2.
"Intellectual Property" means, collectively, patents, patent
disclosures, trademarks, service marks, trade dress, logos, trade names and
copyrights, and all registrations, applications, re-issuances, continuations,
continuations-in-part, revisions, extensions, reexaminations and associated good
will with respect to each of the foregoing, computer software (including source
and object codes), computer programs, computer data bases and related
documentation and materials, data, documentation, trade secrets, confidential
business information (including ideas, formulas, compositions, inventions,
know-how, manufacturing and production processes and techniques, research and
development information, drawings, designs, plans, proposals and technical data,
financial, marketing and business data and pricing and cost information) and
other intellectual property rights (in whatever form or medium).
"Interim Balance Sheet" has the meaning set forth in Section 4.5(a).
"Interim Financial Statements" has the meaning set forth in Section
4.5(a).
"IRS" means the Internal Revenue Service of the Department of the
Treasury.
"Knowledge" as used with respect to the Sellers means information known
or which should be known by Prandi or Xxxxxxx.
"Law" means any constitutional provision, statute, law, rule,
regulation, Permit, decree, injunction, judgment, order, ruling, determination,
finding or writ of any Governmental Entity.
"Lien" means any mortgage, pledge, security interest, charge, claim or
other encumbrance, other than (a) mechanics', materialmens' and similar liens
with respect to amounts not yet due and payable, (b) liens for Taxes not yet due
and payable and (c) liens securing rental payments under capital lease
arrangements.
"Losses" has the meaning set forth in Section 11.2(a).
"Multiemployer Plan" has the meaning set forth in Section 3(37) of
ERISA.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Permit" means any license, permit, franchise, certificate of authority
or order, or any waiver of the foregoing, issued by any Governmental Entity.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization or a Governmental Entity.
"Pioneer" has the meaning set forth in the Preamble to this Agreement.
"Pioneer Company" means either Pioneer or 1 Stop. "Pioneer Companies"
means Pioneer and 1 Stop,
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collectively.
"Pioneer Company Shares" means, collectively, all of the issued and
outstanding common stock, no par value, of Pioneer and 1 Stop.
"Prandi" has the meaning set forth in the Preamble to this Agreement.
"Prohibited Transactions" has the meaning set forth in Section 406 of
ERISA and Section 4975 of the Code.
"Promissory Notes" means the promissory notes issued by Purchaser to
each of Prandi and Xxxxxxx in accordance with Section 2.2.
"Purchase Price" means $1,800,000 plus interest accruing thereon in
accordance with the terms of the Promissory Notes.
"Purchaser" has the meaning set forth in the Preamble to this Agreement.
"Purchaser Indemnified Parties" has the meaning set forth in Section
11.2(a).
"Purchaser's Accounting Firm" means KPMG Peat Marwick or any successor
organization.
"Release" means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, storing, escaping, leaching, dumping,
discarding, burying, abandoning or disposing into the environment.
"Reportable Event" has the meaning set forth in Section 4043 of ERISA.
"Schedule" means, unless the context otherwise requires, the referenced
Schedule included in the Disclosure Schedules.
"Seller Indemnified Parties" has the meaning set forth in Section 11.3.
"Seller's Group" shall mean any "affiliated group" (as defined in
Section 1504(a) of the Code without regard to the limitations contained in
Section 1504(b) of the Code) that includes Sellers and Pioneer.
"Sellers" has the meaning set forth in the Preamble to this Agreement.
"Sellers' Accounting Firm" means Xxxxxx & Xxxxxxxxx, P.C., or any
successor organization.
"Sellers' Life Insurance Policy" means a currently effective, paid-up
life insurance policy, in form and substance reasonably satisfactory to the
Purchaser and naming Purchaser as the beneficiary, which policy shall provide
for payment to the Purchaser, upon the death of Prandi or Xxxxxxx, of an amount
equal to the sum of the outstanding principal balance on the Promissory Notes
held by Prandi and Xxxxxxx on the date of such death.
"Tax" means any federal, state, local or foreign net income, gross
income, gross receipts, sales, use, ad valorem, transfer, franchise, profits,
license, lease, service, service use, withholding, payroll, employment, excise,
severance, stamp, occupation, premium, property, windfall profits, customs,
duties or other tax, fee, assessment or charge, including any interest, penalty
or addition thereto.
"Tax Package" has the meaning set forth in Section 6.3.
"Tax Returns" shall mean all federal, state, local or foreign tax
returns, tax reports, and declarations of estimated tax, including without
limitation consolidated federal income tax returns of Seller's Group.
"Taxes" shall mean all federal, state, local or foreign income, gross
receipts, windfall or excess profits,
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severance, property, productions, sales, use, license, excise, franchise,
employment, withholding or similar taxes, together with any interest, additions
or penalties with respect thereto and any interest in respect of such additions
or penalties.
"Year 2000 Compliant" means that systems and products accurately process
date and time data (including, without limitation, calculating, comparing and
sequencing) from, into and between the twentieth and twenty-first centuries, the
years 1999 and 2000, and leap year calculations. "Year-End Financial Statements"
has the meaning set forth in Section 4.5(a).
Section 2. Basic Transaction.
2.1 Purchase and Sale of Pioneer Company Shares. On the terms and
subject to the conditions set forth in this Agreement, at the Closing the
Purchaser will purchase from the Sellers, and the Sellers will sell, transfer,
assign, convey and deliver to the Purchaser, all right, title and interest in
and to the Pioneer Company Shares.
2.2 On the terms and subject to the conditions set forth in this
Agreement, at the Closing the Purchaser will pay to the Sellers the Purchase
Price, as follows:
(a) Purchaser will pay to Prandi the sum of One Hundred Eighty
Thousand Dollars ($180,000) by bank wire transfer of immediately available funds
to an account designated in writing by Prandi;
(b) Purchaser will pay to Xxxxxxx the sum of One Hundred Eighty
Thousand Dollars ($180,000) by bank wire transfer of immediately available funds
to an account designated in writing by Xxxxxxx;
(c) Purchaser will deliver to Prandi a promissory note
substantially in the form attached hereto as Exhibit A in the principal amount
of Seven Hundred Twenty Thousand Dollars ($720,000); and
(d) Purchaser will deliver to Xxxxxxx a promissory note
substantially in the form attached hereto as Exhibit A in the principal amount
of Seven Hundred Twenty Thousand Dollars ($720,000). The payments described in
clauses (a) and (b) above are sometimes referred to collectively herein as the
"Initial Purchase Price." The Purchase Price will be subject to adjustment as
provided in Section 2.3.
2.3 Adjustment of Purchase Price
(a) No later than 45 days after the Closing Date, the Sellers will
deliver to Purchaser and to Sellers' Accounting Firm a balance sheet of Pioneer
as of the Closing Date (the "Closing Date Balance Sheet") prepared in accordance
with GAAP (except that the Closing Date Balance Sheet shall not be subject to
comparison with financial statements from previous periods) and certified by
Sellers as true and complete on the date thereof, from which the "Closing Date
Net Asset Value" of Pioneer will be derived in the manner set forth on the
schedule attached as Exhibit B to this Agreement.
(b) The Sellers will engage Sellers' Accounting Firm, at the
Sellers' expense, to (i) audit the Closing Date Balance Sheet and the
calculation of the Closing Date Net Asset Value in accordance with generally
accepted auditing standards, and (ii) deliver to the Sellers, the Purchaser and
Purchaser's Accounting Firm, within 60 days after the Sellers' delivery of the
Closing Date Balance Sheet pursuant to Section 2.3(a), a certificate signed by
the Sellers' Accounting Firm (the "Auditors Report") together with the Closing
Date Balance Sheet and the Closing Date Net Asset Value to which such Auditors
Report relates. The Auditors Report will report, without qualification or other
limitation arising out of the scope of the audit, that the Closing Date Balance
Sheet presents fairly the financial condition of Pioneer as of the Closing Date
in conformity with GAAP, except that the Closing Date Balance Sheet (i) shall
not be subject to comparison with financial statements from previous periods,
and (ii) will not give effect to any purchase accounting adjustments arising
from the transactions provided for in this Agreement.
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(c) Within thirty (30) days after the receipt of the Auditors
Report, the Purchaser will deliver written notice to the Sellers of any
objections thereto, and will attempt in good faith to reach an agreement with
the Sellers as to any matters in dispute. If Purchaser does not give such notice
within thirty (30) days, then Purchaser shall be deemed to have waived its right
to dispute the Auditors Report. If Purchaser does give such notice within such
thirty (30) days, and if the Purchaser and the Sellers, notwithstanding such
good faith effort at resolution, fail to resolve all matters in dispute within
ten (10) days after the Purchaser advises the Sellers of its objections, then
any remaining disputed matters will be finally and conclusively determined by an
independent auditing firm of recognized national standing (the "Arbiter")
selected by the Purchaser and the Sellers, which firm will not be the regular
auditing firm of the Purchaser or the Seller. Promptly, but not later than
forty-five (45) days after its acceptance of its appointment, the Arbiter will
determine (based solely on presentations by the Sellers and the Purchaser and
not by independent review) only those matters in dispute and will render a
written report as to the disputed matters and the resulting calculation of the
Closing Date Net Asset Value, which report will be conclusive and binding upon
the parties. The fees and expenses of the Arbiter will be paid by the
non-prevailing party with respect to the determination of the Arbiter as set
forth in the Arbiter's report.
(d) For purposes of complying with the terms set forth herein, each
party will cooperate with and make available to the other party and its auditors
and representatives all information, records, data and auditors' working papers,
and will permit access to its facilities and personnel, as may be reasonably
required in connection with the preparation and analysis of the Closing Date
Balance Sheet and the calculation of the Closing Date Net Asset Value and the
resolution of any disputes thereunder. Without limiting the generality of the
foregoing, the Sellers will cause Sellers' Accounting Firm to make available at
its office to the Purchaser and Purchaser's Accounting Firm within three
business days after delivery of the Auditors Report pursuant to Section 2.3(b)
the workpapers therefor. After the Closing, the Purchaser's auditors will also
have access to Sellers' Accounting Firm's workpapers for the Closing Date
Balance Sheet as necessary for the purpose of providing regular auditing
services to Pioneer.
(e) In the event that the Closing Date Net Asset Value, as finally
determined pursuant to this Section 2.3, is less than $97,500.00, then the
Sellers will pay to the Purchaser the amount of such difference in cash. Any
payment pursuant to this Section 2.3(e) will be made within five business days
following the final determination of the Closing Date Net Asset Value in
accordance with this Section 2.3 by bank wire transfer or certified check of
immediately available funds to an account designated in writing by the
Purchaser. Any payment pursuant to this Section 2.3 will be treated by the
parties as an adjustment to the Purchase Price and the Purchase Price as so
adjusted will be referred to in this Agreement as the "Purchase Price."
Section 3. Closing and Closing Date.
3.1 Closing. Subject to the provisions of Section 10, the consummation
of the transactions contemplated by this Agreement (the "Closing") will take
place at the law offices of Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, A Professional
Corporation, 000 Xxxxxxx Xxxxxx Xxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx, and at the law
offices of Xxxxxxxx and Associates, P.C., 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
00000, on February 29, 2000, or at such other place or on such other date as the
Purchaser and the Sellers may mutually agree.
3.2 Closing Date. The date on which the Closing actually takes place is
referred to in this Agreement as the "Closing Date." The Closing will be deemed
for all purposes under this Agreement to have occurred as of 12:01 A.M.,
California time, on the Closing Date.
3.3 Deliveries at the Closing. At the Closing, (a) the Sellers will
deliver to the Purchaser the various certificates, instruments and documents
referred to in Section 10.1, (b) the Purchaser will deliver to the Sellers the
various certificates, instruments and documents referred to in Section 10.2, (c)
the Sellers will deliver to the Purchaser stock certificates representing all of
the issued and outstanding Pioneer Company Shares, endorsed in blank or
accompanied by duly executed assignment documents, and (d) the Purchaser will
deliver to the Sellers the Initial Purchase Price and the Promissory Notes as
specified in Section 2.2.
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Section 4. Representations and Warranties of the Seller. The Sellers represent
and warrant to the Purchaser that the statements contained in this Section 4 are
correct and complete as of the date of this Agreement and will be correct and
complete as of the Closing Date (as though then made and as though the Closing
Date were substituted for the date of this Agreement throughout this Section 4).
4.1 Organization. Pioneer and 1 Stop are corporations duly organized,
validly existing and in good standing under the laws of the State of New York.
The Pioneer Companies are duly qualified to conduct business and in good
standing under the laws of each jurisdiction where such qualification is
required. The Pioneer Companies have full corporate power and authority and all
Permits and authorizations necessary to carry on the businesses in which they
are engaged and in which they presently propose to engage and to own and use the
properties owned and used by them.
4.2 Authorization of Transaction. Each of Prandi and Xxxxxxx has the
capacity and authority to execute and deliver this Agreement and each of the
Ancillary Agreements to which either is a party and to perform their respective
obligations hereunder and thereunder. This Agreement constitutes, and each of
the Ancillary Agreements when executed and delivered by the Sellers will
constitute, the valid and legally binding obligation of the Sellers party
thereto, enforceable in accordance with their respective terms and conditions.
4.3 Noncontravention; Consents.
(a) Neither the execution and delivery of this Agreement or any of
the Ancillary Agreements by the Sellers, nor the consummation by the Pioneer
Companies and the Sellers of the transactions contemplated hereby or thereby,
will violate any Law to which Pioneer or the Sellers are subject or any
provision of the charter or bylaws of Pioneer. Except as set forth on Schedule
4.3(a), neither the execution and delivery of this Agreement or any of the
Ancillary Agreement by the Sellers, nor the consummation by the Pioneer
Companies or the Sellers of the transactions contemplated hereby or thereby,
will constitute a violation of, be in conflict with, constitute or create a
default under or result in the creation or imposition of any Lien upon any
property of the Pioneer Companies or the Sellers pursuant to, any agreement or
commitment to which the Pioneer Companies or the Sellers are a party or by which
the Pioneer Companies, the Sellers or any of their respective properties
(including the Pioneer Company Shares) is bound or to which the Pioneer
Companies, the Sellers or any of such properties is subject.
(b) Except as set forth on Schedule 4.3(b), the Pioneer Companies
and the Sellers have given all required notices and obtained all licenses,
Permits, consents, approvals, authorizations, qualifications and orders of
Governmental Entities and parties to material contracts of the Pioneer Companies
as are required in order to enable the Sellers to perform their obligations
under this Agreement and each of the Ancillary Agreements, including all
consents and approvals required to permit the Sellers to transfer the Pioneer
Company Shares to the Purchaser. No Contract relating to the Pioneer Companies
has been amended to increase the amount payable by either thereunder or
otherwise modify the terms thereof in order to obtain any such consent, approval
or authorization.
4.4 Capitalization. Schedule 4.4 sets forth for Pioneer and for 1 Stop
(a) the number of shares of authorized capital stock of each class of their
capital stock, (b) the number of issued and outstanding shares of each class of
their capital stock, (c) the number of shares of their capital stock held in
treasury, (d) the names of their directors and elected officers, and (e) the
owners of their capital stock. The Sellers have delivered to the Purchaser
correct and complete copies of the charter and bylaws of Pioneer and 1 Stop as
amended to date. All of the issued and outstanding shares of capital stock of
the Pioneer Companies have been duly authorized and are validly issued, fully
paid and nonassessable. Except as set forth on Schedule 4.4, the Sellers hold of
record and own beneficially all of the outstanding shares of the Pioneer
Companies, free and clear of any restrictions on transfer (other than
restrictions under the Securities Act of 1933, as amended, and applicable state
securities laws), Taxes, Liens, options, warrants, purchase rights, contracts,
commitments, equities, claims or demands. Except as set forth on Schedule 4.4,
there are no outstanding or authorized options, warrants, purchase rights,
subscription rights, conversion rights, exchange rights or other contracts or
commitments that could require the Sellers to sell, transfer or otherwise
dispose of any capital stock of the Pioneer Companies or that could require
either Pioneer or 1 Stop to issue, sell or otherwise cause to become outstanding
any of their own capital stock. There are no outstanding stock appreciation,
phantom stock, profit participation or similar rights with respect to the
Pioneer Companies. There are
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no voting trusts, proxies or other agreements or understandings with respect to
the voting of any capital stock of the Pioneer Companies. Neither Pioneer nor 1
Stop is in default under or in violation of any provision of its charter or
bylaws. Except as set forth on Schedule 4.4, neither Pioneer nor 1 Stop controls
directly or indirectly, or has any direct or indirect equity participation in,
any Person.
4.5 Financial Statements.
(a) Set forth as Schedule 4.5 are correct and complete copies of
the unaudited balance sheets of Pioneer as of December 31, 1997, 1998 and 1999
and the related statements of income and cash flow for the years then ended (the
"Financial Statements"). The Financial Statements were prepared consistent with
past accounting practices (except, with respect to the December 31, 1999
Financial Statements, as disclosed in the notes thereto) and present fairly the
financial condition and the results of operations of Pioneer as of the dates and
for the periods indicated therein.
(b) 1 Stop has no material assets, liabilities, operations or
financial results.
4.6 Undisclosed Liabilities. Pioneer has no liabilities or obligations
(whether known or unknown, absolute or contingent, liquidated or unliquidated,
or due or to become due), which exceed, individually or in the aggregate, Ten
Thousand Dollars ($10,000), except for liabilities and obligations (i) reflected
or reserved for on the Interim Balance Sheet, (ii) that have arisen since the
date of the Interim Balance Sheet in the ordinary course of the operation of
Pioneer (none of which results from, arises out of, relates to, is the nature of
or was caused by any breach of contract, breach of warranty, tort, infringement
or violation of Law) or (iii) as set forth on Schedule 4.6.
4.7 Title Insurance Claims. Notwithstanding any liability or obligation
excepted pursuant to subclauses (i) through (iii) in Section 4.6 above:
(a) each title insurance policy originated by Pioneer was
originated in compliance with the underwriting criteria for such policy imposed
pursuant to the Agency Agreement under which such policy was issued (except
where Pioneer has placed policies in excess of the policy limits set forth in
the relevant Agency Agreement on certain occasions and either received a written
waiver from the relevant underwriter, disclosed to such underwriter the such
non-compliance at the time the policy was accepted or the relevant underwriter
accepted such title insurance policy premium notwithstanding such
noncompliance); and
(b) Pioneer has no liability (including, without limitation,
liability for the non-complying title insurance policies discussed in the
exception contained in clause (a) above) with respect to any title insurance
policy originated by Pioneer pursuant to the Agency Agreements through the
Closing Date.
4.8 Events Subsequent to Most Recent Fiscal Year End; Health of Sellers.
Since December 31, 1999, there has not been any material adverse change in the
business, financial condition, operations, results of operations or future
prospects of Pioneer. Included in Schedule 4.8 hereto are letters from the
personal physicians of each of Prandi and Xxxxxxx, attesting to certain aspects
of the current physical condition of each of them. Since the date of the
respective letters, there has not been any change in the health of Prandi or
Xxxxxxx with respect to the subject matter of the applicable letter.
4.9 Accounts Receivable. The accounts receivable reflected on the
Interim Balance Sheet are bona fide receivables, accounted for on a basis
consistent with that used in the preparation of the Financial Statements,
representing amounts due with respect to actual transactions in the ordinary
course of the operation of Pioneer.
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4.10 Tax Matters. Except as set forth in Schedule 4.10:
(a) all Tax Returns that are required to be filed by or with
respect to the Sellers' Group and the Pioneer Companies have been duly filed,
or, where not so filed, are subject to an extended due date pursuant to an
extension that has been obtained therefor,
(b) all such Tax Returns are true, complete and correct,
(c) all Taxes due and payable by the Sellers' Group and the Pioneer
Companies have been paid in full,
(d) none of the Tax Returns referred to in Schedule 4.10 has been
examined by the IRS or the appropriate state, local or foreign taxing authority,
(e) all deficiencies asserted or assessments made as a result of
such examinations have been paid in full,
(f) no issues that have been raised by the relevant taxing
authority in connection with the examination of any of the Tax Returns referred
to in clause (a) are currently pending,
(g) no waivers of statutes of limitation have been given by or
requested with respect to any Taxes of the Sellers' Group or the Pioneer
Companies,
(h) to the Seller's Knowledge, there is no claim or assessment
threatened against Sellers or the Pioneer Companies,
(i) the Pioneer Companies have withheld and timely paid to the
appropriate taxing authority the required amounts in compliance with all tax
withholding provisions of applicable Law (including, without limitation, income,
social security and employment tax withholding),
(j) the Pioneer Companies have not made any payments, and are not a
party to any agreement that could obligate either to make any payments, that
would not be deductible, in whole or in part, under Section 280G or 162(m) of
the Code,
(k) the Sellers are not foreign persons subject to withholding
under Section 1445 of the Code, and
(l) Neither Pioneer nor 1 Stop are part of an Affiliated Group
other than one in which the Sellers are the common parent.
4.11 Contracts.
(a) Except for the Contracts listed on Schedule 4.11, the Pioneer
Companies are not party to or otherwise bound by any written or oral (i)
mortgage, indenture, note, installment obligation or other instrument relating
to the borrowing of money, (ii) guarantee of any obligation, (iii) letter of
credit, bond or other indemnity (including letters of credit, bonds or other
indemnities as to which either Pioneer Company is the beneficiary but excluding
endorsements of instruments for collection in the ordinary course of the
operation of the relevant Pioneer Company), (iv) currency or interest rate swap,
collar or hedge agreement, (v) agreement for the sale or lease by either Pioneer
Company to any Person of any material amount of its assets other than the
retirement or other disposition of assets no longer useful to the relevant
Pioneer Company in the ordinary course of its operation, (vi) agreement
requiring the payment by either Pioneer Company of more than $50,000 in any
12-month period for the purchase or lease of any machinery, equipment or other
capital assets, (vii) agreement providing for the lease or sublease by either
Pioneer Company (as lessor, sublessor, lessee or sublessee) of any real estate,
(viii) collective bargaining agreement, employment, severance or consulting
agreement or agreement providing for severance payments or other additional
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rights or benefits (whether or not optional) in the event of the sale of either
Pioneer Company, (ix) joint venture agreement, (x) teaming agreement, (xi)
Government Contract or Government Subcontract, and except as indicated, neither
Pioneer Company is a party to any Government Contract or Government Subcontract
pursuant to Section 8(a) of the Small Business Administration Act, (xii)
agreement requiring the payment to either Pioneer Company by any other Person of
more than $50,000 in any 12-month period for the purchase of goods or services,
(xiii) agreement requiring the payment by either Pioneer Company to any Person
of more than $50,000 in any 12-month period for the purchase of goods or
services; (xiv) license or sublicense agreement with respect to any item of
Intellectual Property (whether as licensor, licensee, sublicensor or
sublicensee) or (xv) agreement imposing non-competition or exclusive dealing
obligations on either Pioneer Company.
(b) The Sellers have made available to the Purchaser correct and
complete copies of each written agreement listed on Schedule 4.11, as amended to
date. Each Contract is a valid, binding and enforceable obligation of the
relevant Pioneer Company and the other party or parties thereto (subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar Laws affecting creditors' rights and remedies generally
and subject as to enforceability to general principles of equity, including
principles of commercial reasonableness, good faith and fair dealing) and is in
full force and effect. Except as set forth on Schedule 4.11, (i) neither the
Pioneer Companies nor, to the Sellers' Knowledge, any other party thereto, is in
material breach of any term of any Contract or has repudiated any term of any
Contract, (ii) no event, occurrence or condition exists that, with the lapse of
time, the giving of notice, or both, would become a material default under any
Contract by either Pioneer Company, or, to the Sellers' Knowledge, any other
party thereto and (iii) neither Pioneer Company has waived or released any of
its material rights under any Contract.
4.12 Real Property.
(a) Schedule 4.12 lists all lease and sublease agreements relating
to real property leased or subleased by Pioneer. Except as set forth on Schedule
4.12, with respect to each such lease and sublease:
(i) such lease or sublease constitutes the entire agreement
to which Pioneer is a party with respect to the real property leased thereunder;
(ii) Pioneer has not assigned, sublet, transferred,
conveyed, mortgaged, deeded in trust or encumbered any interest in the leasehold
or subleasehold;
(iii) all facilities leased or subleased thereunder have
received all material approvals of Governmental Entities (including all Permits)
required in connection with the operation thereof and have been operated and
maintained in all material respects in accordance with all applicable Laws; and
(iv) there is no action, suit or proceeding pending against
Pioneer or, to the Sellers' Knowledge, any action, suit or proceeding pending or
threatened against Pioneer or any third party that would materially interfere
with the quite enjoyment of such leased real property after the Closing Date.
(b) All of the real property and facilities are to the Knowledge of
the Sellers leased by Pioneer, and all components of all improvements included
within such owned or leased real property, in working order and repair and do
not require material repair or replacement in order to serve their intended
purposes in all material respects, including use and operation consistent with
their present use and operation, except for scheduled maintenance, repairs and
replacements conducted or required in the ordinary course of the operation of
such leased real property.
(c) Other than options, rights of first refusal or other similar
arrangements in favor of Pioneer under the leases and subleases relating to the
real property leased by Pioneer, Pioneer has not entered into any contract,
arrangement or understanding with respect to the future ownership, development,
use, occupancy or operation of any parcel of real property leased by Pioneer.
(d) There are no pending or, to the Sellers' Knowledge, threatened
or contemplated condemnation or eminent domain proceedings that affect the real
property leased by Pioneer, and Pioneer has not
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received any notice, oral or written, of the intention of any Governmental
Entity or other Person to take or use all or any part thereof.
(e) Since Pioneer's leasing of the real property leased by Pioneer,
none of such property or any part thereof has suffered any material damage by
fire or other casualty that has not been completely restored.
(f) Pioneer has not received any written notice from any insurance
company that has issued a policy to Pioneer with respect to any of its leased
real property requiring the performance of any structural or other repairs or
alterations to such property.
(g) 1 Stop has no real property interests.
4.13 Title and Related Matters. Except as set forth on Schedule 4.13,
the Pioneer Companies now have, and on the Closing Date will have, good and
marketable title to all the properties and assets purported to be owned by them,
free and clear of all Liens. The properties and assets owned and leased by
Pioneer and 1 Stop include sufficient tangible personal property to conduct the
business and operations of Pioneer and 1 Stop, respectively, as presently
conducted.
4.14 Intellectual Property.
(a) The Pioneer Companies own or have the right to use pursuant to
valid license, sublicense, agreement or permission all Intellectual Property
necessary or desirable for their respective operations as presently conducted.
(b) Neither Pioneer Company has interfered with, infringed upon,
misappropriated or otherwise come into conflict with any Intellectual Property
rights of third parties. Neither Pioneer Company has received any charge,
complaint, claim, demand or notice alleging any such interference, infringement,
misappropriation or violation (including any claim that it must license or
refrain from using any Intellectual Property rights of any third party). To the
Sellers' Knowledge, no third party has interfered with, infringed upon,
misappropriated or otherwise come into conflict with any Intellectual Property
rights of the Pioneer Companies.
(c) Schedule 4.14 identifies each patent and each registered
trademark, service xxxx and copyright owned by the Pioneer Companies and
identifies each pending patent application or application for registration that
has been filed by the Pioneer Companies. The Sellers have made available to the
Purchaser correct and complete copies of all such patents, registrations and
applications, each as amended to date, and correct and complete copies of all
other written documentation evidencing ownership and prosecution of each such
item. With respect to each such item of intellectual property required to be
identified in Schedule 4.14:
(i) the relevant Pioneer Company possesses all right, title
and interest in and to such item, free and clear of any Lien, license or other
restriction;
(ii) such item is not subject to any outstanding injunction,
judgment, order, decree, ruling or charge;
(iii) no action, suit, proceeding, hearing, investigation,
charge, complaint, claim or demand is pending or, to the Sellers' Knowledge,
threatened that challenges the legality, validity, enforceability, use or
ownership of such item; and
(iv) the relevant Pioneer Company has not agreed to
indemnify any Person for or against any interference, infringement,
misappropriation or other conflict with respect to such item.
(d) Schedule 4.14 identifies each license, sublicense, agreement or
permission pursuant to which the Pioneer Companies use any item of Intellectual
Property. With respect to each such license, sublicense, agreement or
permission:
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(i) to the Sellers' Knowledge, the underlying item of
Intellectual Property is not subject to any outstanding injunction, judgment,
order, decree, ruling or charge;
(ii) no action, suit, proceeding, hearing, investigation,
charge, complaint, claim or demand is pending or, to the Sellers' Knowledge,
threatened that challenges the legality, validity or enforceability of the
underlying item of Intellectual Property;
(iii) the transactions contemplated by this Agreement and
the Ancillary Agreements shall not constitute a breach or default under, give
rise to a right of termination under or otherwise adversely affect the ability
of Purchaser to use the Intellectual Property in conducting the business of the
relevant Pioneer Company after the Closing Date; and
(iv) the relevant Pioneer Company has not granted any
sublicense or similar right with respect to such license, sublicense, agreement
or permission.
4.15 Litigation. Schedule 4.15 sets forth each instance in which either
Pioneer Company is (a) subject to any unsatisfied judgment order, decree,
stipulation, injunction or charge or (b) a party to or, to the Sellers'
Knowledge, is threatened to be made a party to any charge, complaint, action,
suit, proceeding, hearing or investigation of or in any court or quasi-judicial
or administrative agency of any federal, state, local or foreign jurisdiction.
There are no judicial or administrative actions, proceedings or investigations
pending or, to the Sellers' Knowledge, threatened that question the validity of
this Agreement or any of the Ancillary Agreements or any action taken or to be
taken by the Pioneer Companies or the Sellers in connection with this Agreement
or any of the Ancillary Agreements or that, if adversely determined, would have
a material adverse effect upon the Pioneer Companies' or the Sellers' ability to
enter into or perform their respective obligations under this Agreement or any
of the Ancillary Agreements to which any of them is a party.
4.16 Employee Benefits.
(a) Schedule 4.16 lists each Employee Benefit Plan that Pioneer or
the Sellers maintain with respect to the current or former employees of Pioneer
or to which Pioneer or the Sellers contribute with respect to any of the current
or former employees of Pioneer. With respect to each such Employee Benefit Plan:
(i) such Employee Benefit Plan (and each related trust,
insurance contract or fund) complies in form and in operation in all respects
with the applicable requirements of ERISA, the Code and other applicable Laws;
(ii) all required reports and descriptions (including Form
5500 Annual Reports, Summary Annual Reports and Summary Plan Descriptions) have
been filed or distributed appropriately with respect to such Employee Benefit
Plan and the requirements of Part 6 of Subtitle B of Title I of ERISA and
Section 4980B of the Code have been met with respect to each such Employee
Benefit Plan which is an Employee Welfare Benefit Plan;
(iii) all contributions (including all employer
contributions and employee salary reduction contributions) which are due have
been paid to each such Employee Benefit Plan which is an Employee Pension
Benefit Plan and all contributions for any period ending on or before the
Closing Date which are not yet due have been paid to each such Employee Pension
Benefit Plan or accrued in accordance with the past custom and practice of
Pioneer and the Sellers. All premiums or other payments for all periods ending
on or before the Closing Date have been paid with respect to each such Employee
Benefit Plan which is an Employee Welfare Benefit Plan;
(iv) each such Employee Benefit Plan which is an Employee
Pension Benefit Plan meets the requirements of a "qualified plan" under Section
401(a) of the Code and has received, within the last two years, a favorable
determination letter from the IRS; and
(v) the Sellers have made available to the Purchaser correct
and complete copies of the plan documents and summary plan descriptions, the
most recent determination letter received from the IRS, the most
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recent Form 5500 Annual Report, and all related trust agreements, insurance
contracts and other funding agreements which implement such Employee Benefit
Plan.
(b) With respect to each Employee Benefit Plan that Pioneer
maintains or ever has maintained, or to which it contributes, ever has
contributed or ever has been required to contribute, there have been no
Prohibited Transactions with respect to such Employee Benefit Plan, no fiduciary
has any liability for breach of fiduciary duty or any other failure to act or
comply in connection with the administration or investment of the assets of such
Employee Benefit Plan, and no action, suit, proceeding, hearing or investigation
with respect to the administration or the investment of the assets of such
Employee Benefit Plan (other than routine claims for benefits) is pending or, to
the Sellers' Knowledge, threatened.
(c) Except as set forth on Schedule 4.16, Pioneer does not
contribute to, has never contributed to or has ever been required to contribute
to any Multiemployer Plan or has any liability (including withdrawal liability)
under any Multiemployer Plan. None of the transactions contemplated by this
Agreement or any Ancillary Agreement will trigger any withdrawal or termination
liability under any Multiemployer Plan set forth on Schedule 4.16.
(d) Except for the Sellers, 1 Stop has no employees, and 1 Stop has
no Employee Benefit Plans.
4.17 Environmental Matters. Except as set forth on Schedule 4.17, (a)
Pioneer has complied in all material respects with all Environmental Laws in
connection with the use, maintenance and operation of all real property leased
by it and otherwise in connection with its operations, (b) the Pioneer Companies
have no liability, whether contingent or otherwise, under any Environmental Law
with respect to their operations or properties, (c) no notices of any violation
or alleged violation of, non-compliance or alleged non-compliance with or any
liability under, any Environmental Law relating to the operations or properties
of the Pioneer Companies have been received by them during the past five years,
(d) there are no administrative, civil or criminal writs, injunctions, decrees,
orders or judgments outstanding or any administrative, civil or criminal
actions, suits, claims, proceedings or investigations pending or, to the
Sellers' Knowledge, threatened, relating to compliance with or liability under
any Environmental Law affecting the Pioneer Companies, and (e) no underground
tank or other underground storage receptacle for Hazardous Materials is located
on any of the real property leased by Pioneer.
4.18 Legal Compliance. Except as set forth on Schedule 4.18, the Pioneer
Companies have complied in all material respects with all applicable Laws and no
action, suit, proceeding, hearing, investigation, charge, complaint, claim,
demand or notice has been filed or commenced against or, to the Sellers'
Knowledge, has been threatened against the Pioneer Companies alleging any
failure to so comply.
4.19 Insurance. Schedule 4.19 contains a correct and complete list of
(a) all policies of insurance owned by the Sellers or any of their Affiliates
under which Pioneer or any of its properties or assets is insured; and (b) the
Sellers' Life Insurance Policy. All such policies are (or, in the case of the
Sellers' Life Insurance Policy, will be as of the Closing Date) in full force
and effect, are sufficient for compliance by Pioneer or Sellers with all
applicable requirements of Law and all agreements to which Pioneer or Sellers
are a party or subject.
4.20 Bank Accounts and Powers. Schedule 4.20 lists each bank, trust
company, savings institution, brokerage firm, mutual fund or other financial
institution with which the Pioneer Companies have an account or safe deposit box
relating to either of them and the names and identification of all Persons
authorized to draw thereon or to have access thereto. Schedule 4.20 lists the
names of each Person holding powers of attorney or agency authority from either
Pioneer Company and a summary of the terms thereof.
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4.21 Brokers' Fees. Neither the Pioneer Companies nor the Sellers have
any liability or obligation to pay any fees or commissions to any broker, finder
or agent with respect to the transactions contemplated by this Agreement for
which the Purchaser could become liable or obligated or for which the Pioneer
Companies, after the Closing Date, will have any continuing obligation.
4.22 Year 2000 Compliance. Except as set forth on Schedule 4.22, all
software, hardware, databases, and devices that run under the control of a
microprocessor used by the Pioneer Companies, and each of the hardware products
of the Pioneer Companies are Year 2000 Compliant, except for failures to be Year
2000 Compliant that would not have a material adverse effect on the business or
financial condition of either Pioneer Company.
4.23 Full Disclosure. No representation or warranty of the Sellers
contained in this Agreement contains an untrue statement of a material fact or
omits to state a material fact necessary to make the statements contained herein
or therein not misleading. There is no fact that the Sellers have not disclosed
to the Purchaser in writing that the Sellers presently believe has or will have
a material adverse effect on either Pioneer Company or a material adverse effect
on the ability of the Pioneer Companies or the Sellers to perform this Agreement
and the Ancillary Agreements to which any of them are a party.
Section 5. Representations and Warranties of the Purchaser. The Purchaser
represents and warrants to the Sellers that the statements contained in this
Section 5 are correct and complete as of the date of this Agreement and will be
correct and complete as of the Closing Date (as though then made and as though
the Closing Date were substituted for the date of this Agreement throughout this
Section 5).
5.1 Organization. The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
5.2 Authorization of Transaction. The Purchaser has full power and
authority to execute and deliver this Agreement and each of the Ancillary
Agreements and to perform its obligations hereunder and thereunder. This
Agreement constitutes, and each of the Ancillary Agreements when executed and
delivered by the Purchaser will constitute, the valid and legally binding
obligation of the Purchaser, enforceable in accordance with its terms and
conditions. Attached as Exhibit C is a duly executed resolution of the Board of
Directors of the Purchaser authorizing the execution and delivery of this
Agreement and approving the Purchaser's performance of the transactions
contemplated hereby.
5.3 Noncontravention Consents
(a) Neither the execution and the delivery of this Agreement or any
of the Ancillary Agreements by the Purchaser, nor the consummation by the
Purchaser of the transactions contemplated hereby or thereby, will violate any
Law to which the Purchaser is subject or any provision of the charter or bylaws
of the Purchaser. Neither the execution and delivery of this Agreement or any of
the Ancillary Agreements by the Purchaser, nor the consummation by the Purchaser
of the transactions contemplated hereby or thereby, will constitute a violation
of, be in conflict with or constitute or create a default under, any agreement
or commitment to which the Purchaser is a party or by which the Purchaser or any
of its properties is bound or to which the Purchaser or any of such properties
is subject.
(b) The Purchaser has given all required notice and obtained all
licenses, Permits, consents, approvals, authorizations, qualifications and
orders of Governmental Entities as are required in order to enable the Purchaser
to perform its obligations under this Agreement and each of the Ancillary
Agreements.
5.4 Litigation. There are no judicial or administrative actions,
proceedings (including bankruptcy proceedings) or investigations pending or, to
the Purchaser's Knowledge, threatened that question the validity of this
Agreement or any of the Ancillary Agreements or any action taken or to be taken
by the Purchaser in connection with this Agreement or any of the Ancillary
Agreements or that, if adversely determined, would have an adverse effect upon
the Purchaser's ability to enter into or perform its obligations under this
Agreement or any of the Ancillary Agreements.
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5.5 Brokers' Fees. The Purchaser has no liability or obligation to pay
any fees or commissions to any broker, finder or agent with respect to the
transactions contemplated by this Agreement for which Pioneer or the Sellers
could become liable or obligated.
Section 6. Tax Matters.
6.1 Liability for Taxes and Related Matters.
(a) Sellers shall be liable for and indemnify the Purchaser for all
Taxes (including, without limitation, any obligation to contribute to the
payment of a tax determined on a consolidated, combined or unitary basis with
respect to a group of corporations that includes or included either Pioneer
Company and Taxes resulting from either Pioneer Company ceasing to be a member
of the Sellers' Group): (i) imposed on Sellers' Group (other than the Pioneer
Companies) for any taxable year and (ii) imposed on the Pioneer Companies or for
which the Pioneer Companies may otherwise be liable for any taxable year or
period that ends on or before the Closing Date and, with respect to any taxable
year or period beginning before and ending after the Closing Date, the portion
of such taxable year ending on and including the Closing Date. Sellers shall
also indemnify, defend and hold harmless the Purchaser from all costs and
expenses incurred by the Purchaser (including reasonable attorneys' fees and
expenses) in connection with any liability to, or claim by, any taxing
authority, for Taxes for which Sellers are required to indemnify the Purchaser
under this Section 6. Except as set forth in Section 6.1(e), Sellers shall be
entitled to any refund of Taxes of the Pioneer Companies received for such
periods. Indemnification made pursuant to this Section 6.1(a) shall be made in
accordance with Section 11 below.
(b) The Purchaser shall be liable for and indemnify Sellers for the
Taxes of the Pioneer Companies for any taxable year or period that begins after
the Closing Date and, with respect to any taxable year or period beginning
before and ending after the Closing Date, the portion of such taxable year
beginning after the Closing Date. The Purchaser shall also indemnify, defend and
hold harmless Sellers from all costs and expenses incurred by Sellers (including
reasonable attorneys' fees and expenses) in connection with any liability to, or
claim by, any taxing authority, for Taxes for which the Purchaser is required to
indemnify Sellers under this Section 6. The Purchaser shall be entitled to any
refund of Taxes of the Pioneer Companies received for such periods.
(c) For purposes of paragraphs (a) and (b) above, whenever it is
necessary to determine the liability for Taxes of the Pioneer Companies for a
portion of a taxable year or period that begins before and ends after the
Closing Date, the determination of the Taxes of the Pioneer Companies for the
portion of the year or period ending on, and the portion of the year or period
beginning after, the Closing Date shall be determined by assuming that the
Pioneer Companies had a taxable year or period which ended at the close of the
Closing Date, except that exemptions, allowances or deductions that are
calculated on an annual basis, such as the deduction for depreciation, shall be
apportioned on a time basis.
(d) If Sellers become entitled to a refund or credit of Taxes for
any period for which it is liable under Section 6.1(a) to indemnify the
Purchaser and such Taxes are attributable solely to the carryback of losses,
credits or similar items attributable to the Pioneer Companies and from a
taxable year or period that begins after the Closing Date, Sellers shall
promptly pay to the Purchaser the amount of such refund or credit together with
any interest thereon. In the event that any refund or credit of Taxes for which
a payment has been made is subsequently reduced or disallowed, the Purchaser
shall indemnify and hold harmless Sellers for any tax liability, including
interest and penalties, assessed against Sellers by reason of the reduction or
disallowance.
(e) Sellers shall file or cause to be filed when due all Tax
Returns that are required to be filed by or with respect to the Pioneer
Companies for taxable years or periods ending on or before the Closing Date and
shall pay any Taxes due in respect of such Tax Returns, and the Purchaser shall
file or cause to be filed when due all Tax Returns that are required to be filed
by or with respect to the Pioneer Companies for taxable years or periods ending
after the Closing Date and shall remit any Taxes due in respect of such Tax
Returns. Sellers shall pay the Purchaser the Taxes for which Sellers are liable
pursuant to Section 6.1(a) but which are payable with Tax Returns to be filed by
the Purchaser pursuant to the previous sentence within ten days prior to the due
date for the filing of such Tax Returns.
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(f) The Purchaser shall promptly notify Sellers in writing upon
receipt by the Purchaser, any of its Affiliates or the Pioneer Companies of
notice of any pending or threatened federal, state, local or foreign income or
franchise tax audits or assessments which may materially affect the tax
liabilities of the Pioneer Companies for which Sellers would be required to
indemnify the Purchaser pursuant to Section 6.1(a), provided, that failure to
comply with this provision shall not affect the Purchaser's right to
indemnification hereunder except and to the extent such delay is prejudicial to
Sellers. Seller shall have the sole right to represent the Pioneer Companies'
interests in any tax audit or administrative proceeding relating to taxable
periods ending on or before the Closing Date, and to employ counsel of its
choice at its expense. Notwithstanding the foregoing, Sellers shall not be
entitled to settle, either administratively or after the commencement of
litigation, any claim for Taxes which would adversely affect the liability for
Taxes of the Purchaser or the Pioneer Companies for any period after the Closing
Date to any extent (including, but not limited to, the imposition of income tax
deficiencies, the reduction of asset basis or cost adjustments, the lengthening
of any amortization or depreciation deductions, or the reduction of loss or
credit carryforwards) without the prior written consent of the Purchaser. Such
consent shall not be unreasonably withheld, and shall not be necessary to the
extent that Sellers have indemnified the Purchaser against the effects of any
such settlement. Sellers shall be entitled to participate at their expense in
the defense of any claim for Taxes for a year or period ending after the Closing
Date which may be the subject of indemnification by Sellers pursuant to Section
6.1(a) and, with the written consent of the Purchaser, and at their sole
expense, may assume the entire defense of such tax claim. Neither the Purchaser
nor the Pioneer Companies may agree to settle any tax claim for the portion of
the year or period ending on the Closing Date which may be the subject of
indemnification by Sellers under Section 6.1(a) without the prior written
consent of Sellers, which consent shall not be unreasonably withheld.
6.2 Transfer Taxes. All transfer taxes which may be imposed or assessed
as a result of the Purchaser's acquisition of the Pioneer Company Shares shall
be borne equally by Sellers and Buyer.
6.3 Information to be Provided by the Purchaser. With respect to the
taxable period in 1999 prior to the Closing Date, the Purchaser shall promptly
cause the relevant Pioneer Company to prepare and provide to Sellers a package
of tax information materials (a "Tax Package"), which shall be completed in
accordance with past practice of such Pioneer Company including past practice as
to providing the information, schedules and work papers and as to the method of
computation of separate taxable income or other relevant measure of income. The
Purchaser shall cause the Tax Package for the portion of the taxable period
ending on the Closing Date to be delivered to Seller within 120 days after the
Closing Date.
6.4 Assistance and Cooperation. After the Closing Date, each of Sellers
and the Purchaser shall:
(a) assist (and cause their respective Affiliates to assist) the
other party in preparing any Tax Returns or reports which such other party is
responsible for preparing and filing in accordance with this Section 6;
(b) cooperate fully in preparing for any audits of, or disputes
with taxing authorities regarding, any Tax Returns of the Pioneer Companies;
(c) make available to the other and to any taxing authority as
reasonably requested all information, records, and documents relating to Taxes
of the Pioneer Companies;
(d) provide timely notice to the other in writing of any pending or
threatened tax audits or assessments of either Pioneer Company for taxable
period for which the other may have a liability under this Section 6; provided,
that failure to comply with this provision shall not affect a party's rights to
indemnification hereunder except and to the extent such delay is prejudicial to
the other party; and
(e) furnish the other with copies of all correspondence received
from any taxing authority in connection with any tax audit or information
request with respect to any such taxable period.
6.5 Survival of Obligations. Subject to Section 11.1, the obligations of
the parties set forth in this Section 6 shall be unconditional and absolute and
shall remain in effect without limitation as to time.
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Section 7. Pre-Closing Covenants. The parties agree as follows with respect to
the period between the date of this Agreement and the Closing Date.
7.1 General. Each of the parties will use its reasonable best efforts to
take all action and to do all things necessary, proper or advisable to
consummate and make effective the transactions contemplated by this Agreement
(including satisfying the closing conditions set forth in Section 10).
7.2 Notices and Consents. The Sellers prior to the Closing Date will
give all notices to third parties and will use their reasonable best efforts at
their expense to obtain all third party consents that are required in connection
with the transactions contemplated by this Agreement, and will make all further
filings pursuant thereto that may be necessary, proper or advisable.
7.3 Conduct Business in Regular Course. The Sellers will cause the
Pioneer Companies to maintain the leased properties used or held for use in
their businesses in good operating condition and repair and make all necessary
renewals, additions and replacements thereto, will cause the Pioneer Companies
to carry on their operations substantially in the same manner as heretofore
conducted and will not cause or permit the Pioneer Companies to make or
institute any unusual or novel methods of purchase, sale, lease, management,
accounting or operation.
7.4 No General Increases. Except in the ordinary course of business
consistent with past practice, (a) the Sellers will not cause or permit the
Pioneer Companies to grant any general or uniform increase in the rates of pay
of employees of the Pioneer Companies, nor grant any general or uniform increase
in the benefits under any bonus or pension plan or other contract or commitment,
and (b) the Sellers will not cause or permit the Pioneer Companies to increase
the compensation payable or to become payable to officers, salaried employees
with a base salary in excess of $50,000 per year or agents of Pioneer, or
increase any bonus, insurance, pension or other benefit plan, payment or
arrangement made to, for or with any such officers, salaried employees or
agents, except for any increase required under the terms of any collective
bargaining agreement or consulting or employment agreement in effect on the date
of this Agreement.
7.5 Contracts and Commitments. The Sellers will not cause or permit the
Pioneer Companies to tender any bid, enter into any contract or commitment or
engage in any transaction, including any contract, commitment or engagement with
the Sellers or any division, unit or Affiliate of the Sellers, or effect any
change to any program, not in the usual and ordinary course of business and
consistent with the past operation of the relevant Pioneer Company.
7.6 Dividends and Distributions. The Sellers will not cause or permit
the Pioneer Companies to declare or pay any dividend or distribution with
respect to its capital stock or to repurchase, redeem or otherwise acquire for
value any shares of its capital stock (it being understood and acknowledged by
the parties that payment by Pioneer of (i) Prandi's and Xxxxxxx'x quarterly
federal and New York estimated income tax liabilities; and (ii) a monthly
dividend to each of Prandi and Xxxxxxx of $1,000 per month are excepted to the
extent such payments are consistent with past practices).
7.7 Sale of Capital Assets. The Sellers will not cause or permit the
Pioneer Companies to sell or otherwise dispose of any of its capital assets.
7.8 Preservation of Organization. The Sellers will cause the Pioneer
Companies to use their best efforts to preserve their business organizations
intact, to keep available to Pioneer after the Closing Date the present officers
and employees of Pioneer and, subject to Section 7.9 below, to preserve the
present relationships of the Pioneer Companies with their suppliers and
customers and others having business relations with the Pioneer Companies.
7.9 Agency Agreements. [intentionally omitted]
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7.10 No Default. The Sellers will not cause or permit the Pioneer
Companies to commit or omit to take any act which will cause a termination of or
breach or default under any contract, commitment or obligation to which a
Pioneer Company is a party or by which its assets are bound, including the
Contracts.
7.11 Compliance with Laws. The Sellers will cause the Pioneer Companies
to comply in its operations in all material respects with all applicable Laws or
as may be required for the valid and effective transfer to the Purchaser of the
Pioneer Company Shares.
7.12 Full Access. The Sellers will permit representatives of the
Purchaser to have full access at all reasonable times to all premises,
properties, books, records, contracts and documents of or pertaining to the
Pioneer Companies.
7.13 Notice of Developments. The Sellers will give prompt written notice
to the Purchaser of any material development affecting the Pioneer Companies.
Each party will give prompt written notice to the other of any material
development affecting the ability of the parties to consummate the transactions
contemplated by this Agreement or any of the Ancillary Agreements.
7.14 Exclusivity. The Sellers and their respective Affiliates will not,
and will not cause or permit either Pioneer Company to, solicit, initiate or
encourage the submission of any proposal or offer from any Person, or negotiate
any unsolicited offer or proposal, relating to any (a) liquidation, dissolution
or recapitalization, (b) merger or consolidation, (c) acquisition or purchase of
securities or assets or (d) similar transaction or business combination
involving either Pioneer Company. The Sellers will notify the Purchaser promptly
if any Person makes any proposal, offer, inquiry or contact with respect to any
of the foregoing.
7.15 Debt Obligations. Prior to the Closing Date, the Sellers shall
cause the Pioneer Companies to repay in full all Indebtedness of the Pioneer
Companies and otherwise satisfy all debt obligations of the Pioneer Companies,
including obtaining acknowledgement of the release of all Liens against the
business or assets of the Pioneer Companies and causing the filing of
termination statements with respect to any outstanding UCC-1 financing
statements naming either Pioneer Company as a debtor.
7.16 Tax Matters. No new elections with respect to Taxes, or any changes
in current elections with respect to Taxes, relating to or affecting the Pioneer
Companies will be made by the Pioneer Companies or the Sellers after the date of
this Agreement without the prior written consent of the Purchaser. On or prior
to the Closing Date, the Sellers will provide the Purchaser, at the Purchaser's
request, with all clearance certificates or similar documents that may be
required by any state, local or other taxing authority in order to relieve the
Purchaser of any obligation to withhold or escrow any portion of the Purchase
Price. On or prior to the Closing Date, the Sellers will furnish to the
Purchaser an affidavit stating, under penalty of perjury, the Pioneer Companies'
and each of the Sellers' United States tax identification numbers and that
neither Seller is a foreign person, pursuant to Section 1445(b)(2) of the Code.
Section 8. Post-Closing Covenants. The parties agree as follows with respect to
the period following the Closing Date.
8.1 General. In case at any time after the Closing Date any further
action is necessary or desirable to carry out the purposes of this Agreement,
each of the parties will take such further action (including the execution and
delivery of such further instruments and documents) as the other party
reasonably may request, at the sole cost and expense of the requesting party
(unless the requesting party is entitled to indemnification therefor under
Section 11).
8.2 Litigation Support. In the event and for so long as any party is
actively contesting or defending against any charge, complaint, action, audit,
suit, proceeding, hearing, investigation, claim or demand in connection with (i)
any transaction contemplated under this Agreement or (ii) any fact, situation,
circumstance, status, condition, activity, practice, plan, occurrence, event,
incident, action, failure to act or transaction on or prior to the Closing Date
involving either Pioneer Company, the other party will provide its reasonable
cooperation to the
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contesting or defending party and its counsel in the contest or defense, make
available its personnel and provide such testimony and access to its books and
records as may be necessary in connection with the contest or defense, at the
sole cost and expense of the contesting or defending party (unless the
contesting or defending party is entitled to indemnification therefor under
Section 11).
8.3 Confidential Information. For a period of five years after the
Closing Date, the Sellers will treat and hold as such, and will not use for the
benefit of themselves or others, any Confidential Information. In the event the
Sellers or any of their respective Affiliates are requested or required (by oral
request or written request for information or documents in any legal proceeding,
interrogatory, subpoena, civil investigative demand or similar process) to
disclose any Confidential Information, then the relevant Seller will notify the
Purchaser promptly in writing of the request or requirement so that the
Purchaser may seek an appropriate protective order or waive compliance with this
Section 8.3. If, in the absence of a protective order or receipt of a waiver
hereunder, the Sellers are, on the advice of outside counsel, compelled to
disclose any Confidential Information to any Governmental Entity or else stand
liable for contempt, then the Sellers may disclose such Confidential Information
to such Governmental Entity, provided, that the Sellers will use its reasonable
best efforts to obtain at the request of the Purchaser an order or other
assurance that confidential treatment will be accorded to such Confidential
Information.
8.4 Post-Closing Receipts. In the event that either party after the
Closing Date receives any funds properly belonging to the other party in
accordance with the terms of this Agreement, the receiving party will promptly
so advise such other party, will segregate and hold such funds in trust for the
benefit of such other party and will promptly deliver such funds, together with
any interest earned thereon, to an account or accounts designated in writing by
such other party.
8.5 Sellers' Life Insurance Policy. The Sellers shall maintain the
Sellers' Life Insurance Policy in effect through the earlier to occur of (a) the
Maturity Date of the Notes (as that term is defined therein) or so long as any
amounts are outstanding thereunder, and (b) the occurrence of a material breach
thereunder and the expiration of any applicable cure period. The Sellers shall
not permit such policy to be modified in any material respect (except that the
death benefit payable to Purchaser thereunder may be reduced to match reductions
in the outstanding principal balance on the Notes) without the prior written
consent of the Purchaser, and shall otherwise act in accordance with the
Certification of Life Insurance Policies, dated February 29, 2000, delivered by
the Sellers to the Purchaser at the Closing, the provisions of which are
incorporated herein by reference.
Section 9 Employee Benefits Responsibilities.
9.1 From and after the Closing Date, the Purchaser will assume liability
for and cause Pioneer to provide for all employees of Pioneer welfare benefits
substantially equivalent in the aggregate to like benefits which were provided
by Pioneer immediately prior to the Closing Date pursuant to the Employee
Benefit Plans as described in Schedule 4.16 of the Disclosure Schedules and the
summary plan descriptions noted therein; provided, that the liabilities so
assumed are limited to liabilities reflected on the Closing Date Balance Sheet
or on the Schedules hereto. As of the Closing Date, the Sellers' responsibility
to continue to maintain the Employee Benefit Plans for Pioneer employees will
terminate.
9.2 Pioneer employees will participate in Pioneer's employee benefit
plans after the Closing Date without any waiting periods, without any evidence
of insurability and without the application of any pre-existing physical or
mental condition restrictions except to the extent previously applicable under
the Employee Benefit Plans, but counting claims incurred prior to the Closing
Date for purposes of applying deductible, out-of-pocket maximums and other such
matters.
9.3 The Purchaser will also assume all liability and responsibility for
the payment of any otherwise eligible claims incurred under the Employee Benefit
Plans prior to the Closing Date but which have not been paid prior to the
Closing Date.
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9.4 Notwithstanding the foregoing provisions of this Section 9, nothing
in this Agreement will limit or restrict in any way the Purchaser's right to
modify, amend, terminate or establish employee benefit plans or arrangements in
whole or in part at any time after the Closing Date and this Agreement will not,
in any way or at any time, create any third party beneficiary rights for or on
behalf of any Person.
Section 10 Closing Conditions.
10.1 Conditions to Obligation of the Purchaser. The obligation of the
Purchaser to consummate the transactions to be performed by it in connection
with the Closing is subject to satisfaction of the following conditions:
(a) the representations and warranties of the Sellers set forth in
Section 4 will be true and correct in all material respects at and as of the
Closing Date;
(b) the Sellers will have performed and complied with all of its
covenants hereunder in all material respects through the Closing Date;
(c) there will not be any action, suit or proceeding pending or
threatened before any court or quasi-judicial or administrative agency of any
federal, state, local or foreign jurisdiction or before any arbitrator wherein
an unfavorable injunction, judgment, order, decree, ruling or charge would (i)
prevent consummation of any of the transactions contemplated by this Agreement
or any Ancillary Agreement, (ii) cause any of the transactions contemplated by
this Agreement or any Ancillary Agreement to be rescinded following
consummation, (iii) affect materially and adversely the right of the Purchaser
following the Closing Date to own the Pioneer Company Shares or to control the
Pioneer Companies, or (iv) affect materially and adversely, the right of the
Pioneer Companies to own their assets or to operate their businesses as
presently operated (and no such injunction, judgment, order, decree, ruling or
charge will be in effect);
(d) the Sellers will have obtained all consents, releases, waivers
and other documentation required in order for the Sellers to transfer and
deliver the Pioneer Company Shares to the Purchaser and fulfill their other
obligations hereunder;
(e) the Sellers will have delivered to the Purchaser a certificate
to the effect that each of the conditions specified above are satisfied in all
respects;
(f) the Sellers will have delivered to the Purchaser an executed
counterpart of each of the Ancillary Agreements to which they are a signatory;
(g) the Purchaser will have received the resignations, effective as
of the Closing, of each of the directors and officers of the Pioneer Companies,
other than those whom the Purchaser has specified in writing at least five
business days prior to the Closing;
(h) the Purchaser shall have received consents substantially in the
form attached hereto as Exhibit D executed by each of the spouses of the
Sellers;
(i) the Purchaser shall have received an opinion of counsel to the
Sellers in form and substance reasonably acceptable to the Purchaser;
(j) the Sellers shall have delivered to the Purchaser the Sellers'
Life Insurance Policy; and
(k) all actions to be taken by the Sellers in connection with
consummation of the transactions contemplated hereby and all certificates,
instruments and other documents required to effect the transactions contemplated
hereby will be reasonably satisfactory in form and substance to the Purchaser.
The Purchaser may waive any condition specified in this Section 10.1 if it
executes a writing so stating at or prior to the
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Closing.
10.2 Conditions to Obligation of the Sellers. The obligation of the
Sellers to consummate the transactions to be performed by them in connection
with the Closing is subject to satisfaction of the following conditions:
(a) the representations and warranties of the Purchaser set forth
in Section 5 will be true and correct in all material respects at and as of the
Closing Date;
(b) the Purchaser will have performed and complied with all of its
covenants hereunder in all material respects through the Closing Date;
(c) there will not be any action, suit or proceeding pending or
threatened before any court or quasi-judicial or administrative agency of any
federal, state, local or foreign jurisdiction or before any arbitrator wherein
an unfavorable injunction, judgment, order, decree, ruling or charge would (i)
prevent consummation of any of the transactions contemplated by this Agreement
or any Ancillary Agreement or (ii) cause any of the transactions contemplated by
this Agreement or any Ancillary Agreement to be rescinded following
consummation;
(d) the Purchaser will have delivered to the Sellers a certificate
to the effect that each of the conditions specified above is satisfied in all
respects;
(e) the Purchaser will have delivered to the Sellers an executed
counterpart of each of the Ancillary Agreements; and
(f) all actions to be taken by the Purchaser in connection with
consummation of the transactions contemplated hereby and all certificates,
instruments and other documents required to effect the transactions contemplated
hereby will be reasonably satisfactory in form and substance to the Sellers.
The Sellers may waive any condition specified in this Section 10.2 if it
executes a writing so stating at or prior to the Closing.
Section 11. Remedies for Breaches of this Agreement.
11.1 Survival of Representations and Warranties. All of the
representations and warranties of the Sellers contained in Section 4 of this
Agreement or in any certificate delivered by the Sellers pursuant to this
Agreement will survive the Closing and continue in full force and effect until
the third anniversary of the Closing Date; provided, however, that (a) the
representations and warranties contained in Sections 4.1 (Organization), 4.2
(Authorization of Transaction) and 4.4 (Capitalization) shall continue in full
force and effect forever; and (b) the representations and warranties contained
in Sections 4.10 (Tax Matters) or 4.16 (Employee Benefits), or contained in any
certificate delivered by the Sellers relating thereto, shall remain in full
force and effect until 30 days after the expiration of the applicable statute of
limitations with respect to the matter to which the claim relates, as such
limitation period may be extended from time to time.
11.2 Indemnification Provisions for Benefit of the Purchaser.
Notwithstanding any investigation at any time made by or on behalf of the
Purchaser or any knowledge or information the Purchaser may have or be deemed to
have, in the event the Sellers breach (or in the event a third party alleges
facts that, if true, would mean the Sellers have breached) any of their
representations, warranties or covenants contained in this Agreement or any
certificate delivered by the Sellers pursuant to this Agreement, and provided
that the Purchaser makes a written claim for indemnification against the Sellers
prior to the expiration of any applicable survival period, then the Sellers will
indemnify the Purchaser from and against the entirety of any losses, expenses
(including reasonable attorneys', accountants' an experts' fees and expenses),
damages and other liabilities, including Tax-related liabilities pursuant to
Section 6 hereof (collectively, "Losses") suffered or incurred by the Purchaser
or any of its Affiliates (including the Pioneer Companies), or any of their
respective stockholders, directors, officers, employees and agents
(collectively, the "Purchaser Indemnified Parties"), resulting from, arising out
of, relating to, in the nature of or caused by such breach (including any Losses
suffered or incurred by any Purchaser Indemnified Party with respect to such
breach after the expiration of
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any applicable survival period. The liability of the Sellers hereunder shall not
be joint and several, but rather will be borne fifty percent (50%) by Prandi and
fifty percent (50%) by Xxxxxxx, with neither having any liability for the
failure of the other to indemnify Purchaser. Notwithstanding anything contained
in this Agreement to the contrary, (i) neither Prandi nor Xxxxxxx shall have any
liability to the Purchaser Indemnified Parties hereunder until the Losses
against which indemnification is sought aggregate in excess of Ten Thousand
Dollars ($10,000), and then Prandi and Xxxxxxx shall have no liability for such
first Ten Thousand ($10,000) in Losses; and (ii) the entire, aggregate liability
of either Prandi or Xxxxxxx to all Purchaser Indemnified Parties hereunder,
whether personal or otherwise and whether or not related to title insurance
policies, shall in no event exceed Two Hundred Fifty Thousand Dollars ($250,000)
for each of Prandi and Xxxxxxx (for the avoidance of doubt, the corresponding
collective aggregate liability of Sellers hereunder shall be Five Hundred
Thousand Dollars ($500,000)).
11.3 Indemnification Provisions for Benefit of the Sellers.
Notwithstanding any investigation at any time made by or on behalf of the
Sellers or any knowledge or information the Sellers may have or be deemed to
have, in the event the Purchaser breaches (or in the event any third party
alleges facts that, if true, would mean the Purchaser has breached) any of its
representations, warranties or covenants contained in this Agreement, any
certificate delivered by the Purchaser pursuant to this Agreement or any
Ancillary Agreement and provided that the Sellers make a written claim for
indemnification against the Purchaser, then the Purchaser will indemnify the
Sellers from and against the entirety of any Losses the Sellers or any of its
Affiliates (excluding the Pioneer Companies), or any of their respective
stockholders, directors, officers, employees or agents (collectively, the
"Seller Indemnified Parties"), may suffer or incur resulting from, arising out
of, relating to, in the nature of or caused by such breach. Notwithstanding
anything contained in this Agreement to the contrary, (i) the Purchaser shall
have no liability to the Seller Indemnified Parties hereunder until the Losses
against which indemnification is sought aggregate in excess of Ten Thousand
Dollars ($10,000), and then the Purchaser shall have no liability for such first
Ten Thousand ($10,000) in Losses; and (ii) the entire, aggregate liability of
the Purchaser to all Seller Indemnified Parties hereunder shall in no event
exceed Five Hundred Thousand Dollars ($500,000).
11.4 Exception to Limits on Indemnification. The maximum limits on the
liability of Sellers to Purchaser set forth in Section 11.2 above shall not
apply in the event of a breach by Sellers of their obligation to deliver all of
the issued and outstanding Pioneer Company Shares pursuant to Section 3.3(c) or
their obligation to maintain the Sellers' Life Insurance Policy in effect
pursuant to Section 8.5; provided, however, that the exception to the limitation
of the Sellers' indemnification obligation provided by this Section 11.4 shall
apply to the Sellers' Life Insurance Policy only in the event and to the extent
payment is required to be made to the Purchaser thereunder and is not made. The
maximum limits on the liability of Purchaser to Sellers set forth in Section
11.3 above shall not apply in the event of a breach by Purchaser of its
obligation to pay the Purchase Price pursuant to Section 2 hereof or the
compensation due to Prandi and Xxxxxxx pursuant to the Ancillary Agreements.
11.5 Indemnification Procedures. Except for claims for indemnification
made pursuant to Section 6 hereof, which claims shall follow the procedures set
forth in such Section, if any third party notifies any party hereto (the
"Indemnified Party") with respect to any matter that may give rise to a claim
for indemnification against the other party hereto (the "Indemnifying Party")
under this Section 11, then the Indemnified Party will notify the Indemnifying
Party thereof promptly and in any event within 30 days after receiving any
written notice from a third party; provided, that no delay on the part of the
Indemnified Party in notifying the Indemnifying Party will relieve the
Indemnifying Party from any obligation hereunder unless, and then solely to the
extent that, the Indemnifying Party is prejudiced thereby. Once the Indemnified
Party has given notice of the matter to the Indemnifying Party, the Indemnified
Party may defend against the matter in any manner it reasonably may deem
appropriate. In the event the Indemnifying Party notifies the Indemnified Party
within 30 days after the date the Indemnified Party has given notice of the
matter that the Indemnifying Party is assuming the defense of such matter (a)
the Indemnifying Party will defend the Indemnified Party against the matter with
counsel of its choice reasonably satisfactory to the Indemnified Party, (b) the
Indemnified Party may retain separate counsel at its sole cost and expense
(except that the Indemnifying Party will be responsible for the fees and
expenses of such separate co-counsel to the extent the Indemnified Party
concludes in good faith that the counsel the Indemnifying Party has selected has
a conflict of interest), (c) the Indemnified Party will not consent to the entry
of a judgment or enter into any settlement with respect to the matter without
the written consent of the Indemnifying Party (not to be withheld or delayed
unreasonably) and (d) the Indemnifying Party will not consent to the entry of a
judgment with respect to the matter or enter into any settlement that does not
include a provision whereby the
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plaintiff or claimant in the matter releases the Indemnified Party from all
liability with respect thereto, without the written consent of the Indemnified
Party (not to be withheld or delayed unreasonably).
Section 12. Termination.
12.1 Termination of Agreement. The parties may terminate this Agreement
as provided below:
(a) the Purchaser and the Sellers may terminate this Agreement by
mutual written consent at any time prior to the Closing;
(b) either the Sellers or the Purchaser may terminate this
Agreement by giving written notice to the other at any time prior to the Closing
if the Closing has not occurred on or before February 29, 2000.
12.2 Effect of Termination. If any party terminates this Agreement
pursuant to Section 12.1, all obligations of the parties hereunder will
terminate without liability of any party to the other party (except for any
liability of any party then in breach); provided, that the expense allocation
provisions contained in Section 13.2 will survive termination and remain in full
force and effect thereafter.
Section 13. Miscellaneous.
13.1 Press Releases and Announcements. No party will issue any press
release or announcement relating to the subject matter of this Agreement prior
to the Closing Date without the prior approval of the other party; provided,
that the Purchaser may make any public disclosure it believes in good faith is
required by Law or by the rules and regulations of any stock exchange on which
the securities of such party are listed.
13.2 Expenses: Transfer Taxes. Each of the parties hereto will bear all
legal, accounting, investment banking and other expenses incurred by it or on
its behalf in connection with the transactions contemplated by this Agreement,
whether or not such transactions are consummated. The parties will each be
responsible for the payment of 50% of all sales, use, transfer, documentary or
stamp taxes and recording and filing fees applicable to the assignment of the
Pioneer Company Shares to the Purchaser or to any other transaction contemplated
by this Agreement or any of the Ancillary Agreements.
13.3 Remedies. Any party having any rights under any provision of this
Agreement will have all rights and remedies set forth in this Agreement and all
rights and remedies that such party may have been granted at any time under any
other agreement or contract and all of the rights that such party may have under
any Law. Any such party will be entitled to enforce such rights specifically,
without posting a bond or other security, to recover damages by reason of any
breach of any provision of this Agreement and to exercise all other rights
granted by Law.
13.4 Consent to Amendments. The provisions of this Agreement may be
amended or waived only by a written agreement executed and delivered by the
Sellers and the Purchaser. No other course of dealing between the parties to
this Agreement or any delay in exercising any rights hereunder will operate as a
waiver of any rights of such parties.
13.5 Successors and Assigns. No party hereto may assign or delegate any
of such party's rights or obligations under or in connection with this Agreement
or any Ancillary Agreement without the written consent of the other party
hereto; provided, that the Purchaser may without the written consent of Pioneer
or the Sellers assign its rights under this Agreement or any of the Ancillary
Agreements to one or more Affiliates of the Purchaser or to any Person acquiring
all or substantially all of the stock or assets of Pioneer from the Purchaser.
No assignment by the Purchaser pursuant to the proviso of the preceding sentence
will release the Purchaser of any of its obligations under this Agreement or any
Ancillary Agreement or waive or release any right or remedy the Sellers may have
against the Purchaser hereunder or thereunder. All covenants and agreements
contained in this Agreement or in any Ancillary Agreement by or on behalf of any
of the parties hereto or thereto will be binding upon and enforceable against
the respective successors and assigns of such party and will be enforceable by
and will inure to the benefit of the respective successors and permitted assigns
of such party.
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13.6 Severability. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
Law, but if any provision of this Agreement is held to be prohibited by or
invalid under applicable Law, such provision will be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
this Agreement.
13.7 Counterparts. This Agreement may be executed simultaneously in two
(2) or more counterparts, any one of which need not contain the signatures of
more than one party, but all such counterparts taken together will constitute
one and the same Agreement.
13.8 Descriptive Headings. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
13.9 Notices. All notices, demands or other communications to be given
or delivered under or by reason of the provisions of this Agreement will be in
writing and will be deemed to have been given when delivered personally to the
recipient or when sent to the recipient by telecopy (receipt confirmed), one
business day after the date when sent to the recipient by reputable express
courier service (charges prepaid) or three business days after the date when
mailed to the recipient by certified or registered mail, return receipt
requested and postage prepaid. Such notices, demands and other communications
will be sent to the Purchaser and the Seller at the addresses indicated below:
If to the Purchaser: American National Financial, Inc.
00000 Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Fax no. 949/000-0000
Attn: Xxxxxxx X. Xxxxxxx
Chief Executive Officer
With a copy (which
will not constitute
notice) to: Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Fax no. 949/000-0000
Attn: C. Xxxxx Xxxxxxx, Esq.
If to the Sellers: Xxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxx
0000 Xxxxxxx Xxxxxxxx
Xxxxxxx, Xxx Xxxx 00000
Fax no. 516/000-0000
With a copy (which
will not constitute
notice) to: Xxxx X. Xxxxxxxx, Esq.
Xxxxxxxx and Associates, P.C.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax No: (000) 000-0000
or to such other address or to the attention of such other party as the
recipient party has specified by prior written notice to the sending party.
13.10 No Third-Party Beneficiaries. This Agreement will not confer any
rights or remedies upon any
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Person other than the Sellers and the Purchaser and their respective successors
and permitted assigns.
13.11 Entire Agreement. This Agreement (including the documents referred
to herein) constitutes the entire agreement among the parties and supersedes any
prior understandings, agreements or representations by or among the parties,
written or oral, that may have related in any way to the subject matter hereof.
13.12 Construction. The language used in this Agreement will be deemed
to be the language chosen by the parties to express their mutual intent and no
rule of strict construction will be applied against any party. The use of the
word "including" in this Agreement means "including" without limitations and is
intended by the parties to be by way of example rather than limitation.
13.13 Incorporation of Exhibits and Schedules. The Exhibits and
Schedules identified in this Agreement are incorporated herein by reference and
made a part hereof.
13.14 GOVERNING LAW. ALL QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY
AND INTERPRETATION OF THIS AGREEMENT AND THE EXHIBITS AND SCHEDULES HERETO WILL
BE GOVERNED BY THE INTERNAL LAW, AND NOT THE LAW OF CONFLICTS, OF THE STATE OF
CALIFORNIA.
[signature page to follow]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement on the date first written above.
AMERICAN NATIONAL FINANCIAL, INC.
------------------------------------
By: Xxxxxxx X. Xxxxxxx
Its: Chief Executive Officer
XXXXXXX X. XXXXXX
------------------------------------
XXXXXX X. XXXXXXX
------------------------------------
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