EXHIBIT 10.30
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STOCK PURCHASE AGREEMENT
by
and
among
ZIFF XXXXX MEDIA INC.,
ZIFF XXXXX DEVELOPMENT INC.
and
LIONBRIDGE TECHNOLOGIES, INC.
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS 1
Section 1.01. Definitions 5
Section 1.02. Knowledge Defined 6
ARTICLE II PURCHASE AND SALE OF STOCK 7
Section 2.01. Purchase and Sale 7
Section 2.02. Purchase Price for Company Stock 7
Section 2.03. Accounts Receivable 7
Section 2.04. Closing 7
ARTICLE III REPRESENTATIONS AND WARRANTIES CONCERNING THE COMPANY 8
Section 3.01. Corporate Existence and Power 8
Section 3.02. Properties 8
Section 3.03. Capitalization 8
Section 3.04. Sufficiency of Assets 9
Section 3.05. Title to Assets 9
Section 3.06. Litigation 9
Section 3.07. Material Contracts 9
Section 3.08. Licenses and Permits 10
Section 3.09. Proprietary Rights 10
Section 3.10. Employees 11
Section 3.11. Absence of Undisclosed Liabilities 11
Section 3.12. Finders' Fees 11
Section 3.13. Non-Contravention 12
Section 3.14. Taxes 12
Section 3.15. Employee Benefit Plans 13
Section 3.16. Environmental Matters 14
Section 3.17. Latest Balance Sheet 15
Section 3.18. Absence of Certain Changes 15
Section 3.19. Intercompany Arrangements 15
Section 3.20. Insurance Coverage 15
Section 3.21. Disclosure 15
Section 3.22. Disclaimer of Other Representations and Warranties 15
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF SELLER 16
Section 4.01. Corporate Existence and Power 16
Section 4.02. Corporate Authorization 16
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Section 4.03. Non-Contravention 16
Section 4.04. Shares 16
Section 4.05. Litigation 16
Section 4.06. Governmental Authorization 16
ARTICLE V REPRESENTATIONS AND WARRANTIES OF BUYER 17
Section 5.01. Organization and Existence 17
Section 5.02. Corporate Authorization 17
Section 5.03. Governmental Authorization 17
Section 5.04. Non-Contravention 17
Section 5.05. Finders' Fees 17
Section 5.06. Litigation 17
Section 5.07. Sufficient Funds 17
Section 5.08. Investment Intent 17
ARTICLE VI COVENANTS OF SELLER 17
Section 6.01. Conduct of the Business 17
Section 6.02. Access to Information 18
Section 6.03. Notices of Certain Events 18
Section 6.04. No Negotiation with Third Parties 19
Section 6.05. Trademarks; Tradenames 19
ARTICLE VII COVENANTS OF BUYER 19
Section 7.01. Access 19
ARTICLE VIII COVENANTS AND AGREEMENTS OF ALL PARTIES 19
Section 8.01. Best Efforts; Further Assurances 19
Section 8.02. Certain Filings 20
Section 8.03. Public Announcements 20
Section 8.04. Tax Returns for Periods Through Closing Date 20
Section 8.05. Tax Returns for Periods Ending After the Closing Date 20
Section 8.06. Tax Refunds or Credits 21
Section 8.07. Cooperation on Tax Matters 21
Section 8.08. Employee Benefits 22
Section 8.09. Trademark Assignment 22
Section 8.10. Certain Employees 22
Section 8.11. Certain Taxes 23
Section 8.12. Assignment of Leases 23
Section 8.13. Continuation of Benefit Coverage 23
ARTICLE IX CONDITIONS TO CLOSING 23
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Section 9.01. Conditions to the Obligations of Each Party 23
Section 9.02. Conditions to Obligation of Buyer 23
Section 9.03. Conditions to Obligations of Seller 24
ARTICLE X SURVIVAL; INDEMNIFICATION 24
Section 10.01. Survival 24
Section 10.02. Indemnification 25
Section 10.03. Procedures; No Waiver; Exclusivity 26
ARTICLE XI TERMINATION 27
Section 11.01. Grounds for Termination 27
Section 11.02. Effect of Termination 27
ARTICLE XII MISCELLANEOUS 27
Section 12.01. Notices 27
Section 12.02. Amendments; No Waivers 28
Section 12.03. Expenses 28
Section 12.04. Successors and Assigns 28
Section 12.05. Governing Law 28
Section 12.06. Counterparts; Effectiveness 29
Section 12.07. Entire Agreement 29
Section 12.08. Captions 29
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STOCK PURCHASE AGREEMENT
AGREEMENT dated as of July 3, 2002 among Lionbridge Technologies, Inc., a
Delaware corporation ("Buyer"), Ziff Xxxxx Development Inc. (the "Seller") and
Ziff Xxxxx Media Inc. ("ZDM").
W I T N E S S E T H:
WHEREAS, the authorized capital stock of eTesting Labs Inc. (the "Company")
consists of 1,000 shares of common stock, par value $0.01 per share, of which
1,000 shares are issued and outstanding (collectively, the "Company Stock"). The
Seller owns beneficially and of record 100% of the outstanding Company Stock;
and
WHEREAS, Buyer desires to acquire from Seller, and Seller desires to sell
to Buyer, all of the outstanding shares of Company Stock upon the terms and
subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and the representations,
warranties, covenants and agreements herein contained, the parties hereto agree
as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. The following terms, as used herein, have the
following meanings:
"Affiliate" means, with respect to any Person, any Person directly or
indirectly controlling, controlled by, or under common control with such other
Person where "control" means the possession, directly or indirectly, of the
power to elect a majority of the board of directors or other similar managing
body of a Person whether through the ownership of voting securities, by contract
or otherwise.
"Affiliated Group" means any affiliated group within the meaning of Section
1504(a) of the Code or any similar group defined under a similar provision of
state, local or foreign law.
"Alliance Agreement" means the Alliance Agreement substantially in the form
of Exhibit A attached hereto.
"Ancillary Agreements" means the Benchmark License Agreement, the Alliance
Agreement, and all other agreements contemplated herein.
"Benchmark License Agreement" means the Benchmark License Agreement
substantially in the form of Exhibit B attached hereto.
"Closing Date" means the date of the Closing.
"Code" means the Internal Revenue Code of 1986, as amended.
"Xxxxxx City Lease" means that certain Vintage Park Net Lease, dated June
13, 1991 by and between Xxxxxxx Properties, L.P. and Ziff Xxxxx Publishing Inc.,
as amended.
"Latest Balance Sheet" means the balance sheet of the Company as of May 31,
2002.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
"Leases" has the meaning set forth in Section 3.02(b).
"Material Adverse Change" means a material adverse change in the business,
assets,
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condition (financial or otherwise), results of operations of the Company's
business taken as a whole.
"Material Adverse Effect" means a material adverse effect on the business,
assets, condition (financial or otherwise), or results of operations of the
Company; provided that none of the following shall constitute a Material Adverse
Effect: (i) any effect due to a disruption of the business of the Company as a
result of the announcement of the execution of this Agreement or changes caused
by the taking of any action required or permitted under this Agreement; or (ii)
any change in United States generally accepted accounting principles.
"Permitted Lien" means (i) Liens for Taxes not yet due and payable, (ii)
Liens of carriers, warehousemen, mechanics and materialmen and incurred in the
ordinary course of business for amounts which are not yet due and which
individually or in the aggregate are not material to the Company, and (iii)
other Liens arising in the ordinary course of business arising since the date of
the Latest Balance Sheet; and which individually or in the aggregate or not
material to the Company.
"Person" means an individual, corporation, partnership, association, trust
or other entity or organization, including a government or political subdivision
or an agency or instrumentality thereof.
"Proprietary Rights" means all (A) patents, patent applications, patent
disclosures and all related continuation, continuation-in-part, divisional,
reissue, re-examination, utility, model, certificate of invention and design
patents, patent applications, registrations and applications for registrations,
(B) trademarks, service marks, trade dress, logos, tradenames, service names and
corporate names and registrations and applications for registration thereof, (C)
copyrights and registrations and applications for registration thereof, (D) mask
works and registrations and applications for registration thereof, (E) computer
software, data and documentation, (F) trade secrets and confidential business
information, whether patentable or nonpatentable and whether or not reduced to
practice, know-how, manufacturing and product processes and techniques, research
and development information, copyrightable works, (G) other proprietary rights
relating to any of the foregoing (including without limitation associated
goodwill and remedies against infringements thereof and rights of protection of
an interest therein under the laws of all jurisdictions) and (H) copies and
tangible embodiments thereof.
"Tax" means any federal, state, local, or foreign income, gross receipts,
license, payroll, employment, excise, severance, stamp, occupation, premium,
windfall profits, environmental, custom duties, capital stock, franchise,
profits, withholding, social security, unemployment, disability, real property,
personal property, sales, use, transfer, registration, value added, alternative
or add-on minimum, estimated, or other tax of any kind whatsoever, including any
interest, penalty, or addition thereto, whether disputed or not, and including
any obligation to indemnify or otherwise assume or succeed to the Tax liability
of any other Person.
"Tax Authority" means any governmental authority responsible for the
imposition of any Tax.
"Tax Return" means any return, declaration, report, claim for refund, or
information return or statement relating to Taxes, including any schedule or
attachment thereto, and including any amendment thereof.
Section 1.02. Knowledge Defined. For purposes of this Agreement, the term
"Seller's knowledge" or "to the knowledge of Seller" as used herein shall mean
the knowledge of Xxxx Xxxxxxxx, Xxxx Van Name and Xxxxxxx Xxxxxx-Xxxxx (with
respect to Section 3.06 only).
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ARTICLE II
PURCHASE AND SALE OF STOCK
Section 2.01. Purchase and Sale. Upon the terms and subject to the
conditions of this Agreement, on the Closing Date, the Buyer will purchase from
the Seller, and the Seller will sell and transfer to the Buyer, all of the
shares of Company Stock owned by the Seller, free and clear of all Liens.
Section 2.02. Purchase Price for Company Stock. The purchase price for the
Company Stock (the "Purchase Price") shall be equal to $2,250,000. The purchase
price shall pay payable as follows: (i) $1,000,000 (the "Closing Cash Purchase
Price") payable by Buyer in cash at Closing as provided in Section 2.04 below,
(ii) $350,000 payable by Buyer in cash on August 9, 2002 and (ii) $900,000 paid
to Seller through either the collection of accounts receivable of the Company
or, if applicable, the payment described in Section 2.03(a)(i) below.
Section 2.03. Accounts Receivable.
(a) At the Closing, the Company shall assign ownership of all accounts
receivable (the "Accounts Receivable") of the Company in existence at the time
of Closing to Seller. During the period beginning on the Closing Date and ending
sixty (60) days after the Closing Date (the "Collection Period"), the Company
shall collect the Accounts Receivable. During the Collection Period, all amounts
collected with respect to the Accounts Receivable shall be deposited into an
account designated by Seller. At the termination of the Collection Period, (i)
if the aggregate amount collected with respect to the Accounts Receivable is
less than $900,000, Buyer shall immediately pay the amount of such deficiency to
Seller by wire transfer of immediately available funds to an account designated
by Seller and (ii) upon the payment in full of any deficiency, Seller shall
promptly assign all uncollected Accounts Receivable to Buyer. At the termination
of the Collection Period, (i) if the aggregate amount collected with respect to
the Accounts Receivable is more than $900,000, Seller shall immediately pay to
Buyer the amount of such excess by wire transfer of immediately available funds
to an account designated by Buyer and (ii) Seller shall promptly assign all
uncollected Accounts Receivable to Buyer.
(b) During the Collection Period, Seller shall provide Buyer (i) a report
each business day setting forth all receipts of Accounts Receivable for the
previous business day and (ii) a report each week setting forth all receipts of
Accounts Receivable for the previous week. If, at any time after the Collection
Period and after payment in full of the deficiency amount, if any, by Buyer as
contemplated in Section 2.03(a), Seller receives any payments on account of any
of the Accounts Receivable, then Seller shall promptly (but in any event within
three (3) business days of receipt thereof) remit such funds to Buyer.
Section 2.04. Closing. The closing (the "Closing") of the purchase and sale
of the Company Stock hereunder shall occur by an exchange of executed documents
via facsimile and overnight mail, as soon as possible, but in no event later
than 3 business days after satisfaction of the conditions set forth in Article
IX, or at such other time or place as Buyer and Seller may agree, but in no
event later than July 10, 2002. At the Closing,
(a) Buyer shall deliver to Seller by a wire transfer or delivery of other
immediately available funds to an account designated by Seller, in the amount of
the Closing Cash Purchase Price.
(b) Seller will deliver to the Buyer stock certificates representing the
Company Stock, duly endorsed for transfer and accompanied by duly executed stock
powers.
(c) The Company shall assign to Seller the Accounts Receivable.
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(d) Without prejudice to Buyer's rights under Section 9.02(a), Seller
shall deliver to Buyer revised schedules to this Agreement updating the
information shown thereon to the Closing Date.
(e) Seller and Buyer shall also execute and deliver the Ancillary
Agreements and all other instruments, documents and certificates as may be
reasonably requested by the other party that are necessary, appropriate or
desirable for the consummation at the Closing of the transactions contemplated
by this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
CONCERNING THE COMPANY
Seller hereby represents and warrants to Buyer that:
Section 3.01. Corporate Existence and Power. The Company is a corporation
duly incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation, and has full corporate power and authority to own
and operate its properties and assets and to carry on its business as now
conducted.
Section 3.02. Properties.
(a) The Company owns or leases all personal property used in connection
with the operation of the business of the Company. Schedule 3.02(a) describes
all material personal property used in connection with the operation of the
business of the Company and any Liens thereon, specifying in the case of leases
or subleases, the name of the lessor or sublessor, the lease term and basic
rent.
(b) The real property demised by the leases described on Schedule 3.02(b)
attached hereto (the "Leases") constitutes all of the real property owned or
leased by the Company or used in the business of the Company.
(c) Except as set forth on Schedule 3.02(c), the Leases are in full force
and effect, and Ziff Xxxxx Publishing Inc. holds a valid and existing leasehold
interest under each of the Leases. Ziff Xxxxx Publishing Inc. is not in default
in any material respect under any of the Leases.
(d) No violation of any law, regulation or ordinance relating to the
business, assets or properties of the Company currently exists, except for
violations that have not had and would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect. There are no
lawsuits affecting any of the assets or properties of the Company pending or, to
the knowledge of Seller threatened, which might materially detract from the
value of such assets and properties, materially interfere with any present or
intended use of such assets and properties or materially adversely affect the
marketability of such assets and properties.
(e) The Company does not have and never has had any subsidiaries or any
ownership or equity interest in or control of (direct or indirect) any other
Person.
Section 3.03. Capitalization. The authorized, issued and outstanding
capital stock of the Company is as set forth on Schedule 3.03 attached hereto.
All of the issued and outstanding shares of the Company Stock have been duly
authorized, are validly issued, fully paid and nonassessable, are not subject
to, nor were they issued in violation of, any preemptive rights, and are owned
of record and beneficially by the Seller. There are no outstanding or authorized
options, warrants, rights, contracts, calls, puts, rights to subscribe,
conversion rights or other similar securities, agreements or commitments to
which the Company is a party or by which the Company is bound providing for the
issuance, disposition or acquisition of any of its capital
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stock (other than this Agreement). There are no outstanding or authorized stock
or equity appreciation, phantom stock or similar rights with respect to the
Company. There are no voting trusts, proxies or any other agreements or
understandings with respect to the voting of the capital stock of the Company.
The Company is not subject to any obligation (contingent or otherwise) to
repurchase or otherwise acquire or retire any shares of its capital stock.
Section 3.04. Sufficiency of Assets. Except as set forth on Schedule 3.04,
the assets owned, leased or licensed by the Company are sufficient and adequate
for the conduct of the business of the Company as presently conducted.
Section 3.05. Title to Assets. Other than with respect to the Leases, at
the Closing, the Company will have good title in and to, or a valid leasehold
interest in, all personal and real property used in connection with the
operation of the business of the Company, free and clear of all Liens other than
Permitted Liens. As referenced in Section 2.1 of the Benchmark License
Agreement, ZDM is the owner of the Software, the Application Programs and the
Derivative Works used by the Company. From and after the Closing, the Company's
right to use the Software, the Application Programs and the Derivative Works
shall be governed by the Benchmark License Agreement.
Section 3.06. Litigation. Except as set forth on Schedule 3.06, there is no
action, suit, investigation or proceeding pending against, or to the knowledge
of Seller, threatened against or affecting, the Company, its business or any of
its assets before any court or arbitrator or any governmental body, agency or
official or that in any manner challenges or seeks to prevent, enjoin, alter or
materially delay the transactions contemplated hereby.
Section 3.07. Material Contracts.
(a) Except for the contracts disclosed in Schedule 3.07 or any other
Schedule to this Agreement, the Company is not a party to or subject to, and the
business of the Company is not bound by:
(i) any lease;
(ii) any contract for the purchase of materials, supplies, goods,
services, equipment or other assets where the obligation under such
contract exceeds $10,000;
(iii) any sales, distribution or other similar agreement providing
for the sale by Seller of materials, supplies, goods, services, equipment
or other assets where the obligation under such contract exceeds $10,000;
(iv) any partnership, joint venture or other similar contract
arrangement or agreement;
(v) any contract relating to indebtedness for borrowed money;
(vi) any license agreement, franchise agreement or agreement in
respect of similar rights granted to or held by the Company;
(vii) any agreement, contract or commitment that substantially
limits the freedom of the Company to compete in any line of business or
with any Person or in any area or to own, operate, sell, transfer, pledge
or otherwise dispose of or encumber any asset of the Company or that would
so limit the freedom of the Buyer after the Closing Date;
(viii) any agreement, contract or commitment with any employee
concerning the payment of separation or severance upon a change of control
of the Company or upon termination of employment;
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(ix) any plan or policy of either the Company providing for severance
or separation payments to any employee of the Company or any category of
employees of the Company in the event of a change of control of the Company
or upon termination of employment; or
(x) any other agreement, contract or commitment not made in the
ordinary course of business which is material to the Company.
(b) Each contract listed on Schedule 3.07 or any other Schedule to this
Agreement, is a valid and binding agreement of the Company or the business of
the Company, as applicable, and is in full force and effect, and neither the
Company nor, to the knowledge of Seller, any other party thereto is in default
in any material respect under the terms of any such Contract, nor, to the
knowledge of Seller, has any event or circumstance occurred that, with notice or
lapse of time or both, would constitute any event of default thereunder.
(c) Except as set forth on Schedule 3.07, no consent, approval, waiver or
other action by any Person under any contract, agreement, indenture, lease,
instrument or other document to which the Company is a party or by which it or
its business is bound is required or necessary for the execution, delivery and
performance of this Agreement by the Seller or the consummation of the
transactions contemplated hereby.
Section 3.08. Licenses and Permits. Schedule 3.08 correctly describes each
material license, franchise, permit or other similar authorization affecting, or
relating in any way to, the business or assets of the Company, together with the
name of the government agency or entity issuing such license or permit (the
"Permits"). Except as set forth on the Schedule 3.08, such Permits are valid and
in full force and effect and will not be terminated or impaired or become
terminable as a result of the transactions contemplated hereby.
Section 3.09. Proprietary Rights.
(a) Schedule 3.09 sets forth a list of all material Proprietary Rights
owned or licensed by the Company or used in its business, specifying as to each,
as applicable: (i) the nature of such Proprietary Right; (ii) the owner of such
Proprietary Right; (iii) the jurisdictions by or in which such Proprietary Right
has been issued or registered or in which an application for such issuance or
registration has been filed, including the respective registration or
application numbers; and (iv) material licenses, sublicenses and other
agreements as to which the Company is a party and pursuant to which any Person
is authorized to use such Proprietary Right owned by the Company, including the
identity of all parties thereto, a description of the nature and subject matter
thereof, the applicable royalty and the term thereof. Schedule 3.09 sets forth a
list of all domain names and URLs of sites ("Websites") on the World Wide Web
used by the Company in its business.
(b) (i) Except as set forth on Schedule 3.09, since June 5, 2000 the
Company has not been sued or charged in writing with or been a defendant in any
claim, suit, action or proceeding relating that has not been finally terminated
prior to the date hereof and that involves a claim of infringement of any
Proprietary Rights owned or used by the Company and (ii) the Seller has no
knowledge of any other claim or material infringement by the Company, and no
knowledge of any continuing infringement by any other Person of any Proprietary
Rights owned or used by the Company. No Proprietary Right owned by the Company
is subject to any outstanding order, judgment, decree, stipulation or agreement
restricting the use thereof by the Company or restricting the licensing thereof
by the Company to any Person. The Company has not entered into any agreement to
indemnify any other Person against any charge of infringement of any
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Proprietary Right. The Proprietary Rights owned by the Company do not include
any "open source", GPL or GNU licensed or other publicly-available software.
(c) To the knowledge of Seller, none of the processes and formulae,
research and development results and other know-how relating to the Company, the
value of which to the Company is contingent upon maintenance of the
confidentiality thereof, has been disclosed by the Company or any Affiliate
thereof to any Person other than employees, representatives and agents of the
Company under an agreement of confidentiality except where such disclosure would
not have a Material Adverse Effect.
Section 3.10. Employees. Schedule 3.10 sets forth a true and complete list
of the names, titles, annual salaries or hourly wage rates and other cash
compensation of all employees of the Company. All of such employees are
employees-at-will. The Company will not incur any employee severance obligations
solely as a result of the sale of the Company Stock to Buyer. Any persons
engaged by the Company as independent contractors, rather than employees, have
been properly classified as such and have been so engaged in accordance with all
applicable federal, foreign, state or local laws. Hours worked by and payments
made to employees of the Company have not been in violation of the Fair Labor
Standards Act or any other applicable federal, foreign, state or local laws
dealing with such matters. The Company is not, and to the knowledge of Seller,
has never been, engaged in any dispute or litigation with an employee or former
employee regarding matters pertaining to Proprietary Rights or assignment of
inventions. The Company has never been and, to the knowledge of the Seller, is
not now subject to a union organizing effort. The Company is not a party to any
pending, or to the Seller's knowledge, threatened, labor dispute. The Company
has complied in all material respects with all applicable federal, state and
local laws, ordinances, rules and regulations and requirements relating to the
employment of labor, including but not limited to the provisions thereof
relating to wages, hours, collective bargaining and ensuring equality of
opportunity for employment and advancement of minorities and women. There are no
claims pending, or, to the knowledge of the Seller, threatened to be brought, in
any court or administrative agency by any former or current Company employees
for compensation, pending severance benefits, vacation time, vacation pay or
pension benefits, or any other claim threatened or pending in any court or
administrative agency from any current or former employee or any other Person
arising out of the Company's status as employer, whether in the form of claims
for employment discrimination, harassment, unfair labor practices, grievances,
wrongful discharge, or otherwise (collectively, such claims are hereinafter
referred to as "Employment Claims").
Section 3.11. Absence of Undisclosed Liabilities. As of the Closing, the
Company will have no obligations or liabilities (whether known or unknown,
accrued, absolute, contingent, unliquidated or otherwise, whether due or to
become due and regardless of when asserted) arising out of transactions entered
into at or prior to the Closing, or any action or inaction at or prior to the
Closing, except for (i) liabilities or obligations under contracts or
commitments described in Schedule 3.07 or under contracts and commitments which
are not required to be disclosed thereon (but not liabilities for breaches
thereof), (ii) liabilities reflected in the Latest Balance Sheet, (iii)
liabilities which have arisen after the date of the Latest Balance Sheet in the
ordinary course of business, and (iv) liabilities otherwise expressly disclosed
in this Agreement or the Schedules attached hereto.
Section 3.12. Finders' Fees. There is no investment banker, broker, finder
or other intermediary which has been retained by or is authorized to act on
behalf of the Seller who might
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be entitled to any fee or commission from Buyer or any of its Affiliates upon
consummation of the transactions contemplated by this Agreement.
Section 3.13. Non-Contravention. Except as set forth on Schedule 3.13, the
execution, delivery and performance by Seller of this Agreement and each of the
Ancillary Agreements to which it is a party do not and will not (i) contravene
or conflict with the corporate charter or bylaws of the Company; (ii) contravene
or conflict with or constitute a violation of any provision of any law,
regulation, judgment, injunction, order or decree binding upon or applicable to
the Company; or (iii) constitute a default under or give rise to any right of
termination, cancellation or acceleration of any right or obligation of the
Company.
Section 3.14. Taxes(a) Except as set forth on Schedule 3.14, the Company
and each Affiliated Group of which the Company is or was a member (a
"Consolidated Group") have timely filed all Tax Returns required to be filed and
have paid all Taxes owed (whether or not shown as due on such returns),
including, without limitation, all Taxes required to be withheld from amounts
paid or owing to employees, creditors and third parties. All Tax Returns filed
by or on behalf of the Company and each Consolidated Group were complete and
correct in all respects. Except as set forth on Schedule 3.14, none of the Tax
Returns filed by the Company or any Consolidated Group, or Taxes payable by the
Company or any Consolidated Group, have been the subject of an audit, action,
suit, proceeding, claim, examination, deficiency or assessment by any
governmental authority, and no such audit (relating to the Company's assets or
business or that otherwise affects the Company or impairs the Company's use of
its assets), action, suit, proceeding, claim, examination, deficiency or
assessment is currently pending or, to the knowledge of the Company and Seller,
threatened. Except as set forth on Schedule 3.14, neither the Company nor any
Consolidated Group (i) is currently the beneficiary of any extension of time
within which to file any Tax Return and (ii) has waived any statute of
limitation with respect to any Tax or agreed to any extension of time with
respect to a Tax assessment or deficiency. All material elections with respect
to Taxes affecting the Company, as of the date hereof, are set forth in Schedule
3.14.
(b) The Company is not a party to any agreement, contract, arrangement or
plan that has resulted or would result, separately or in the aggregate, in the
payment of (i) any "excess parachute payments" within the meaning of Section
280G of the Code (without regard to the exceptions set forth in Sections
280G(b)(4) and 280G(b)(5) of the Code) or (ii) any amount for which a deduction
would be disallowed or deferred under Section 162(m) or Section 404 of the Code
as a result of the transactions contemplated by this Agreement. The Company has
not agreed to make any adjustment under Section 481(a) of the Code (or any
corresponding provision of state, local or foreign Tax law) by reason of a
change in accounting method or otherwise, and will not be required to make such
an adjustment as a result of the transactions contemplated by this Agreement.
The Company is not, and has not been, a U.S. real property holding company (as
defined in Section 897(c)(2) of the Code) during the applicable period specified
in Section 897(c)(1)(A)(ii) of the Code.
(c) No notice has ever been given to the Company by a Tax Authority in a
jurisdiction where the Company or any Consolidated Group, as the case may be,
does not file Tax Returns that the Company or any Consolidated Group, as the
case may be, is or may be subject to Tax in that jurisdiction. No portion of the
Purchase Price is subject to the Tax withholding provisions of Section 3406 of
the Code, or of Subchapter A of Chapter 3 of the Code or of any other provision
of law. The Company is not a party to any joint venture,
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partnership, or other arrangement or contract which could be treated as a
partnership for federal income tax purposes. The Company does not have, and has
not had, a permanent establishment in any foreign country, as defined in any
applicable Tax treaty or convention between the United States and such foreign
country. None of the shares of Company Stock are subject to a "substantial risk
of forfeiture" within the meaning of Section 83 of the Code. The Company has
never filed a consent pursuant to Section 341(f) of the Code, relating to
collapsible corporations. The Company has never been either a "controlled
corporation" or a "distributing corporation" (within the meaning of Section
355(a)(1)(A) of the Code) with respect to a transaction that was described in,
or intended to qualify as a tax-free transaction pursuant to, Section 355 of the
Code.
(d) The Company is not a party to any Tax sharing agreement or similar
arrangement. The Company has never been a member of a group filing a
consolidated federal income Tax Return other than a group the common parent of
which is Ziff Xxxxx Holdings, Inc. ("ZD Holdings").
(e) There are no liens for Taxes upon any of the assets, other than for ad
valorem taxes not yet due and payable. The unpaid Taxes of the Company did not,
as of the Closing Date, exceed the reserve for actual Taxes (as opposed to any
reserve for deferred Taxes established to reflect timing differences between
book and Tax income) as shown on the Latest Balance Sheet, and will not exceed
such reserve as adjusted for the passage of time through the Closing Date in
accordance with the past custom and practice of the Company in filing their Tax
Returns. The Company will not incur any liability for Taxes from the date of the
Latest Balance Sheet through the Closing Date other than in the ordinary course
of business and consistent with past practice.
(f) Schedule 3.14 hereto contains a list of all jurisdictions (whether
foreign or domestic) to which any Tax is properly payable by the Company.
(g) The Company does not have any liability for the Taxes of any Person (i)
under Treas. Reg. Section 1.1502-6 (or any similar provision of state, local, or
foreign law), (ii) as a transferee or successor, (iii) by contract, or (iv)
otherwise.
(h) The Company will not realize any income or gain (including but not
limited to income or gain triggered by Treas. Reg. Section 1.1502-13) as a
result of the consummation of the transactions contemplated by this Agreement.
(i) There are no closing agreements pursuant to Section 7121 of the Code
(or any analogous provisions of state, local or foreign law) with the Internal
Revenue Service or any other Tax Authority that could increase the Tax liability
or otherwise adversely affect the Tax treatment of the Company for any taxable
period ending on the Closing Date.
Section 3.15. Employee Benefit Plans. (a) Schedule 3.15 lists each
"Employee Benefit Plan" (within the meaning of Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA")) and any plan,
contract, arrangement or policy (written or oral) providing for severance
benefits, insurance coverage (including any self-insured arrangements), worker's
compensation, disability benefits, supplemental unemployment benefits, vacation
benefits, retirement benefits or for deferred compensation, profit-sharing,
bonuses, stock options, stock appreciation rights or other forms of incentive
compensation or post-retirement insurance, compensation or benefits ("Benefit
Arrangements") that is maintained or contributed to by the Company. With respect
to each Employee Benefit Plan, all annual reports (Form 5500) required to be
filed by the Company with the Internal Revenue Service or Department of Labor
have been properly filed on a timely basis. Copies or descriptions of all
Employee Benefit Plans and
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Benefit Arrangements, the Forms 5500 for plan year 2000 (for plans which require
a Form 5500 to be filed) and accurate summary plan descriptions have been made
available or furnished to the Buyer.
(b) Each Employee Benefit Plan which is intended to be qualified under
Section 401(a) of the Code is so qualified and has been so qualified during the
period from its adoption to date, and each trust forming a part thereof is
exempt from tax pursuant to Section 501(a) of the Code. Each Employee Benefit
Plan and Benefit Arrangement has been maintained in compliance with its terms
and with the applicable requirements prescribed by any and all statutes, orders,
rules and regulations, including but not limited to ERISA and the Code. No
"prohibited transaction," as defined in Section 406 of ERISA or Section 4975 of
the Code, has occurred with respect to any Employee Benefit Plan.
(c) Neither the Company nor any ERISA Affiliate maintains or has ever
maintained or contributed to any "multiemployer plan" as defined in Section
3(37) of ERISA, a "multiple employer plan" within the meaning of Section 413 of
the Code, or any Employee Benefit Plan subject to Title IV of ERISA.
(d) All contributions and payments accrued under each Employee Benefit Plan
and Benefit Arrangement, determined in accordance with prior funding and accrual
practices, as adjusted to include proportional accruals for the period ending on
the Closing Date, will be discharged and paid on or prior to the Closing Date.
There are no pending or anticipated claims against or otherwise involving any
Employee Benefit Plan or Benefit Arrangement and no suit, action or other
litigation (excluding claims for benefits incurred in the ordinary course) has
been brought against or with respect to any Employee Benefit Plan or Benefit
Arrangement.
(e) With respect to the employees and former employees of the Company,
there are no employee post-retirement health plans or life insurance in effect,
except as required by Section 4980B of the Code or, if applicable, state law. No
tax under Section 4980B or Section 4980D of the Code (or applicable state law
governing continuation health coverage) has been incurred in respect of any
Employee Benefit Plan that is a group health plan, as defined in Section
5000(b)(1) of the Code.
(f) Except as set forth on Schedule 3.15, no employee of the Company will
become entitled to any material bonus, retirement, severance or similar benefit
or enhanced benefit solely as a result of the transactions contemplated hereby.
(g) No provision of this Section 3.15 shall create any third party
beneficiary or other rights in any employee or former employee (including any
beneficiary or dependent thereof) of the Company in respect of continued
employment (or resumed employment) with the Company and no provision of this
Section 3.15 shall create any such rights in any Persons in respect of any
benefits that may be provided, directly or indirectly, under any Employee
Benefit Plan or Benefit Arrangement or any plan or arrangement that may be
established by Buyer or any of its affiliates. No provision of this Agreement
shall constitute a limitation on rights to amend, modify or terminate after the
Closing Date any Employee Benefit Plan or Benefit Arrangement.
Section 3.16. Environmental Matters. To the knowledge of Seller, the
Company has complied with all federal, state and local laws (including, without
limitation, case law, rules, regulations, orders, judgments, decrees, permits,
licenses and governmental approvals) which are intended to protect the
environment and/or human health or safety (collectively, "Environmental Laws").
The Company has not handled, generated, used, stored, transported or disposed of
any material, substance or waste which is regulated by Environmental Laws
("Hazardous Materials").
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To the knowledge of Seller, there is no underground storage tank or asbestos on
any real property owned, operated or leased by the Company. The Company has not
conducted, nor is it aware of, any environmental investigations, studies,
audits, tests, reviews or analyses, the purpose of which was to discover,
identify, or otherwise characterize the condition of the soil, groundwater, air
or the presence of Hazardous Materials at any real property owned, operated or
leased by the Company. To the knowledge of Seller, there are no "Environmental
Liabilities". For purposes of this Agreement, "Environmental Liabilities" are
any claims, demands, or liabilities under Environmental Laws which (i) arise out
of or in any way relate to the Company's operations or activities, or any real
property at any time owned, operated or leased by the Company, whether vested or
unvested, contingent or fixed, actual or potential, and (ii) arise from or
relate to actions occurring (including any failure to act) or conditions
existing on or before the Closing Date.
Section 3.17. Latest Balance Sheet. The Latest Balance Sheet fairly
presents in all material respects the financial position of the Company as of
its date in accordance with generally accepted accounting principles
consistently applied during the periods involved except as otherwise stated
therein.
Section 3.18. Absence of Certain Changes. Since the date of the Latest
Balance Sheet, the Company has conducted its business in the ordinary course
consistent with past practices, and there has not been any Material Adverse
Change.
Section 3.19. Intercompany Arrangements. The Company does not own any note,
bond, debenture or other indebtedness, or is otherwise a creditor, of the Seller
or any of its Affiliates. Since the date of the Latest Balance Sheet, there has
not been any payment by the Company to the Seller or any of its Affiliates,
charge by the Seller or any of its Affiliates to the Company or other
transaction between the Company and the Seller or any of its Affiliates, except
in any such case in the ordinary course of business of the Company consistent
with past practice.
Section 3.20. Insurance Coverage. The Company has furnished to Buyer a list
of all insurance policies covering the assets, business, equipment, properties,
operations, employees, officers and directors of the Company. There is no claim
by the Company pending under any of such policies or bonds as to which the
Company has been given notice that coverage has been questioned, denied or
disputed by the underwriters of such policies. All premiums payable under all
such policies have been paid or accrued and the Company is otherwise in
compliance with all material terms and conditions of all such policies. Such
policies of insurance (or other policies providing substantially similar
insurance coverage) have been in effect since January 1, 2001 and are in full
force and effect. Such policies of insurance are of the type and in amounts
customarily carried by Persons conducting businesses similar to those of the
Company. The Seller does not know of any threatened termination of, or premium
increase with respect to, any of such policies or bonds.
Section 3.21. Disclosure. The representations and warranties contained in
this Article 3 do not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements and
information contained in this Article 3 not misleading.
Section 3.22. Disclaimer of Other Representations and Warranties. Except as
expressly set forth in this Article 3 and Article 4, Seller makes no
representations or warranty, express or implied, at law or in equity and any
such other representations and warranties are hereby expressly disclaimed.
Notwithstanding anything to the contrary, Seller shall not be deemed to
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make to Buyer any representation or warranty other than as expressly made by
Seller in this Agreement and any agreements which consummate transactions
contemplated by this Agreement. Notwithstanding anything to the contrary, Seller
makes no representation or warranty to Buyer with respect to (a) any
projections, estimates or budgets heretofore delivered to or made available to
Buyer or its counsel, accountants or advisors of future revenue, expenses or
expenditures or future results of operations notwithstanding any otherwise
express representations and warranties made in this Article 3 and Article 4
hereof, or (b) expect as expressly covered by a representation and warranty
contained in this Article 3 and Article 4 hereof, any other information or
documents (financial or otherwise) made available to Buyer or its counsel,
accountants or advisors with respect to the Company or Seller.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Buyer that:
Section 4.01. Corporate Existence and Power. The Seller is a corporation
duly incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation, and has full corporate power and authority to own
and operate its properties and to carry on its business as now conducted.
Section 4.02. Corporate Authorization. The execution, delivery and
performance by Seller this Agreement and the Ancillary Agreements and the
consummation by Seller of the transactions contemplated hereby and thereby are
within the Seller's corporate powers and have been duly authorized by all
necessary corporate action on the part of Seller. This Agreement and each of the
Ancillary Agreements to which Seller is a party constitute valid and binding
agreements of Seller, enforceable against Seller in accordance with their
respective terms.
Section 4.03. Non-Contravention. The execution, delivery and performance by
Seller of this Agreement and each of the Ancillary Agreements to which it is a
party do not and will not (i) contravene or conflict with the corporate charter
or bylaws of Seller; (ii) contravene or conflict with or constitute a violation
of any provision of any law, regulation, judgment, injunction, order or decree
binding upon or applicable to Seller; or (iii) constitute a default under or
give rise to any right of termination, cancellation or acceleration of any right
or obligation of Seller.
Section 4.04. Shares. Seller holds of record and owns beneficially and at
the Closing will have good and marketable title to the shares of Company Stock,
free and clear of any restrictions on transfer (other than any restrictions
under the Securities Act of 1933, as amended, and the state securities laws),
claims, taxes, liens, charges, encumbrances, pledges, security interests,
options, warrants, rights, contracts, calls, commitments, equities and demands.
Seller is not a party to any option, warrant, right, contract, call, put or
other agreement or commitment providing for the disposition or acquisition of
any capital stock of the Company (other than this Agreement). Seller is not a
party to any voting trust, proxy or other agreement or understanding with
respect to the voting of any capital stock of the Company.
Section 4.05. Litigation. There is no action, suit, investigation or
proceeding pending against, or to the knowledge of Seller threatened against or
affecting, Seller before any court or arbitrator or any governmental body,
agency or official which in any matter challenges or seeks to prevent, enjoin,
alter or materially delay the transactions contemplated hereby or which would
adversely affect Seller's performance under this Agreement.
Section 4.06. Governmental Authorization. The execution, delivery and
performance
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by Seller of this Agreement and each of the Ancillary Agreements require no
action by or in respect of, or filing with, any governmental body, agency,
official or authority.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warranties to Seller that:
Section 5.01. Organization and Existence. Buyer is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware and has all corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted.
Section 5.02. Corporate Authorization. The execution, delivery and
performance by Buyer of this Agreement and each of the Ancillary Agreements and
the consummation by Buyer of the transactions contemplated hereby and thereby
are within the corporate powers of Buyer and have been duly authorized by all
necessary corporate action on the part of Buyer. This Agreement and each of the
Ancillary Agreements to which Buyer is a party constitute valid and binding
agreements of Buyer enforceable against Buyer in accordance with their
respective terms.
Section 5.03. Governmental Authorization. The execution, delivery and
performance by Buyer of this Agreement and each of the Ancillary Agreements
require no action by or in respect of, or filing with, any governmental body,
agency, official or authority.
Section 5.04. Non-Contravention. The execution, delivery and performance by
Buyer of this Agreement and each of the Ancillary Agreements do not and will not
(i) contravene or conflict with the corporate charter or bylaws of Buyer or (ii)
contravene or conflict with any provision of any law, regulation, judgment,
injunction, order or decree binding upon Buyer.
Section 5.05. Finders' Fees. There is no investment banker, broker, finder
or other intermediary that has been retained by or is authorized to act on
behalf of Buyer who might be entitled to any fee or commission from Seller or
any of its Affiliates upon consummation of the transactions contemplated by this
Agreement.
Section 5.06. Litigation. There is no action, suit, investigation or
proceeding pending against, or to the knowledge of Buyer threatened against or
affecting, Buyer before any court or arbitrator or any governmental body, agency
or official which in any matter challenges or seeks to prevent, enjoin, alter or
materially delay the transactions contemplated hereby or which would adversely
affect Buyer's performance under this Agreement.
Section 5.07. Sufficient Funds. Buyer shall have at Closing sufficient
funds to pay the Purchase Price to Seller hereunder.
Section 5.08. Investment Intent. The Buyer is acquiring the Company Stock
for its own account for investment and not with a view to, or for sale in
connection with, any distribution thereof, nor with any present intention of
distributing or selling the same in violation of applicable securities laws.
ARTICLE VI
COVENANTS OF SELLER
Seller agrees that:
Section 6.01. Conduct of the Business. From the date hereof until the
Closing Date, Seller will cause the Company to, and Seller will conduct the
Company's business in the ordinary course consistent with past practice, use
their reasonable best efforts to (i) preserve intact the business organization
of the Company and relationships with third parties having business
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relations with the Company, and (ii) keep available the services of the present
employees of the Company. Without limiting the generality of the foregoing, from
the date hereof until the Closing Date, Seller will cause the Company not to:
(a) acquire a material amount of assets from any other Person;
(b) sell, lease, license or otherwise dispose of any assets (other than
accounts receivable in the ordinary course of business);
(c) merge or consolidate with any other Person or acquire a material
amount of assets of any other Person;
(d) issue any capital stock;
(e) (i) grant any severance or termination pay to any director, officer
or employee of the Company, (ii) enter into any employment, deferred
compensation or other similar agreement (or any amendment to any such existing
agreement) with any director, officer or employee of the Company, (iii) change
benefits payable under existing severance or termination pay policies of the
Company or employment agreements to which the Company is a party, (iv) change
compensation, bonus or other benefits payable to directors, officers or
employees of the Company, (v) accelerate the vesting or otherwise modify any
Company option, restricted stock or other outstanding rights or other
securities, or (vi) change any other Company policy or practice; or
(f) agree or commit to do any of the foregoing.
The Seller will not, and will cause the Company not to, (i) take or agree or
commit to take any action that would make any representation and warranty of the
Company or Seller under this Agreement on the date of its execution and delivery
inaccurate in any material adverse respect at, or as of any time prior to, the
Closing Date or (ii) intentionally omit or agree or commit to omit to take any
action necessary to prevent any such representation or warranty from being
inaccurate in any material adverse respect at any such time.
Section 6.02. Access to Information. From the date hereof until the Closing
Date, Seller will cause the Company to, and Seller will (a) give Buyer, its
counsel, financial advisors, financing sources, auditors and other authorized
representatives reasonable access at all reasonable times and with prior written
notice, to the offices, properties, books and records of the Company, and (b)
furnish to Buyer, its counsel, financial advisors, financing sources, auditors
and other authorized representatives such financial and operating data and other
information relating to the Company and its business as such Persons may
reasonably request and (c) will instruct the employees, counsel and financial
advisors of Seller to cooperate with Buyer in its investigation of the Company's
business and; provided further that any investigation pursuant to this Section
shall be conducted in such manner as not to interfere unreasonably with the
conduct of the business of the Company.
Section 6.03. Notices of Certain Events.
Seller shall promptly notify Buyer of:
(i) any notice or other communication from any Person alleging that
the consent of such Person is or may be required in connection with the
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transactions contemplated by this Agreement;
(ii) any notice or other communication from any governmental or
regulatory agency or authority in connection with the transactions
contemplated by this Agreement; and
(iii) any actions, suits, claims, investigations or proceedings
commenced or, to the best of its knowledge threatened against, relating to
or involving or otherwise affecting the Company or it business that, if
pending on the date of this Agreement, would have been required to have
been disclosed pursuant to Article III or Article IV of this Agreement or
that relate to the consummation of the transactions contemplated by this
Agreement.
Section 6.04. No Negotiation with Third Parties. From the date hereof until
the earlier of the Closing Date or the date on which this Agreement is
terminated, Seller agrees that neither Seller, nor the Company or any of their
Affiliates, agents or representatives shall, directly or indirectly, encourage,
solicit or engage in any discussions or negotiations with, or provide any
information to, any Person concerning the possible acquisition by such third
party of the Company or any assets or business of the Company other than as
contemplated or permitted by this Agreement.
Section 6.05. Trademarks; Tradenames. As soon as practicable after the
Closing Date, but in any event no later than 90 days after the Closing Date,
Seller shall eliminate the use of all of the trademarks, tradenames, service
marks and service names of the Company, in any of their forms or spellings, on
all advertising, stationery, business cards, checks, purchase orders and
acknowledgments, customer agreements and other contracts and business documents.
ARTICLE VII
COVENANTS OF BUYER
Buyer agrees that:
Section 7.01. Access. On and after the Closing Date, Buyer will afford
promptly to Seller and its agents reasonable access to its properties, books,
records, employees and auditors to the extent necessary to permit Seller to
determine any matter relating to its rights and obligations hereunder or to any
period ending on or before the Closing Date; provided that any such access by
Seller shall not unreasonably interfere with the conduct of the business of
Buyer.
ARTICLE VIII
COVENANTS AND AGREEMENTS OF ALL PARTIES
The parties hereto agree that:
Section 8.01. Best Efforts; Further Assurances. Subject to the terms and
conditions of this Agreement, each party will use its commercially reasonable
best efforts to take, or cause to be taken, all actions and to do, or cause to
be done, all things necessary or desirable under applicable laws and regulations
to consummate the transactions contemplated by this Agreement. Seller and Buyer
each agree to execute and deliver such other documents, certificates, agreements
and other writings and to take such other actions as may be necessary or
desirable in
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order to consummate or implement expeditiously the transactions contemplated by
this Agreement.
Section 8.02. Certain Filings. Seller and Buyer shall cooperate with one
another (a) in determining whether any action by or in respect of, or filing
with, any governmental body, agency, official or authority is required, or any
actions, consents, approvals or waivers are required to be obtained from parties
to any material contracts, in connection with the consummation of the
transactions contemplated by this Agreement and (b) in taking such actions or
making any such filings, furnishing information required in connection therewith
and seeking timely to obtain any such actions, consents, approvals or waivers.
Section 8.03. Public Announcements. The parties agree to consult with each
other before issuing any press release or making any public statement with
respect to this Agreement or the transactions contemplated hereby and, except as
may be required by applicable law or any listing agreement with any national
securities exchange, will not issue any such press release or make any such
public statement prior to such consultation.
Section 8.04. Tax Returns for Periods Through Closing Date. Seller shall
prepare, or cause to be prepared, and file, or cause to be filed, on a timely
basis the Tax Returns of or including the Company for all taxable periods which
end on or before the Closing Date ("Pre-Closing Periods") and shall include, or
shall cause its appropriate Affiliate to include, the income (including any
deferred income triggered into income by Treas. Reg. Sections 1.1502-13 and any
excess loss accounts taken into income under Treas. Reg. 1.1502-19) of the
Company on the consolidated federal income Tax Return of the group of affiliated
U.S. corporations of which ZD Holdings is the common parent (and any
consolidated, combined, unitary, or other affiliated group Tax Returns for
state, local, or foreign tax purposes) for all periods through the Closing Date
and pay, or cause its appropriate Affiliate to pay, any federal income Taxes
attributable to such income. The Company shall furnish Tax information to the
Seller, as reasonably required, for inclusion in such consolidated federal
income Tax Return for the period which includes the Closing Date in accordance
with the Company's past custom and practice. Seller will allow, or will cause
its appropriate Affiliate to allow, Buyer an opportunity to review and comment
upon such Tax Returns (including any amended returns) to the extent that they
relate to the Company. Seller will take, and will ensure that its Affiliates
take, no position on such Tax Returns that relates to the Company that would
adversely affect the Company after the Closing Date without the approval of
Buyer, which approval shall not be unreasonably withheld. The income and other
items of the Company will be apportioned between the period up to and including
the Closing Date and the period after the Closing Date by closing the books of
the Company as of the end of the Closing Date. Seller will not settle, and will
ensure that its Affiliates do not settle, any audit in a manner which would
adversely affect the Company after the Closing Date without the prior written
consent of Buyer, which consent shall not be unreasonably withheld.
Section 8.05. Tax Returns for Periods Ending After the Closing Date. (a)
With respect to any Tax Return of the Company for a taxable period that begins
on or before and ends after the Closing Date (a "Straddle Period Return"), the
Buyer shall, unless waived by the Seller, deliver a copy of such Tax Return to
Seller at least 45 calendar days prior to the due date thereof (giving effect to
any extension thereof), accompanied by an allocation, in accordance with
Sections 8.05(b) and 8.05(c) below, of any Taxes shown to be due on such Tax
Return between the portion of such taxable period ending on the Closing Date and
the portion thereof beginning on the day immediately following the Closing Date.
Such Tax Return and allocation shall be
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final and binding on Seller and its Affiliates unless, within 15 business days
after the date of receipt by Seller of such Tax Return and allocation, Seller
delivers to Buyer a written request for changes to such Tax Return or
allocation, together with the reasons thereof set out with reasonable
specificity. No later than (i) seven calendar days before the due date
(including any extensions thereof) for payment of Taxes with respect to such Tax
Return or (ii), in the event of a dispute, seven calendar days after the
resolution thereof either by mutual agreement of the parties or by a
determination of an independent accounting firm reasonably satisfactory to
Seller and Buyer, Seller shall pay to Buyer the portion of the Taxes set forth
on such Tax Return that is allocable to the period ending on the Closing Date
that (i) has not been previously paid by Seller to Buyer or to the appropriate
Tax Authority, after giving effect to any agreement of the parties or any
determination by the independent accounting firm, net of any payments made prior
to the Closing Date in respect of such Taxes and (ii) is not shown as reserved
for on the Latest Balance Sheet.
(b) In the case of a Straddle Period Return, except as provided in
Section 8.05(c) below, the allocation of such Taxes between the portion of such
taxable period ending on the Closing Date and the portion thereof beginning on
the day immediately following the Closing Date shall be made on the basis of an
interim closing of the books as of the end of the Closing Date. For purposes of
this Agreement, any Tax resulting from the departure of the Company from the
affiliated group of which ZD Holdings is the common parent (resulting from the
triggering into income of deferred intercompany transactions or excess loss
accounts or otherwise) shall be conclusively deemed attributable to the portion
of such taxable period ending on the Closing Date.
(c) Notwithstanding the provisions of Section 8.05(b) above, in the case
of (i) franchise Taxes based on capitalization, debt or shares of stock
authorized, issued or outstanding and (ii) ad valorem Taxes, in either case
attributable to any taxable period that includes but does not end on the Closing
Date, the portion of such Taxes attributable to the portion of such taxable
period ending on the Closing Date shall be the amount of such Taxes for the
entire taxable period, multiplied by a fraction the numerator of which is the
number of days in such taxable period ending on and including the Closing Date
and the denominator of which is the entire number of days in such taxable
period; provided, however, that if any property, asset or other right of the
Company is sold or otherwise transferred prior to the Closing Date, then ad
valorem Taxes pertaining to such property, asset or other right shall be
attributed entirely to the portion of such taxable period ending on the Closing
Date.
Section 8.06. Tax Refunds or Credits. Any refund of Taxes (including any
interest thereon) attributable to a portion of a taxable period ending on or
before the Closing Date and relating to the Company shall be the property of the
Seller and shall be retained by the Seller (or, if applicable, promptly paid by
the Buyer to the Seller if any such refund (or interest thereon) is received by
the Buyer). If the Seller or any of its Affiliates take or permit to be taken
any action without the approval of Buyer, which approval shall not be
unreasonably withheld, with respect to a Tax Return of, or that includes or
affects, the Company for a portion of a taxable period ending on or before the
Closing Date and such action affects adversely the Tax position of the Buyer or
the Company in any other taxable period or portion thereof, the Buyer shall be
entitled to indemnity under Section 10.02 for the full amount of its or the
Company's damages arising from such adverse effect.
Section 8.07. Cooperation on Tax Matters. (a) Buyer and the Seller shall
cooperate fully
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(and Seller shall cause its Affiliates to cooperate fully), as and to the extent
reasonably requested by one party of another, in connection with the filing of
Tax Returns pursuant to this Agreement and any audit, litigation, or other
proceeding with respect to Taxes. Such cooperation shall include the retention
and (upon another party's request) the provision of records and information
which are reasonably relevant to any such audit, litigation, or other proceeding
and making employees available on a mutually convenient basis to provide
additional information and explanation of any material provided hereunder.
Buyer, the Company, and Seller agree (and Seller shall cause its Affiliates to
agree) (A) to retain all books and records with respect to Tax matters pertinent
to the Company relating to any taxable period beginning before the Closing Date
until the expiration of the statute of limitations (and, to the extent notified
by Buyer or Seller, any extensions thereof) of the respective taxable periods,
and to abide by all record retention agreements entered into with any Tax
Authority, and (B) to give the other party reasonable written notice prior to
transferring, destroying or discarding any such books and records and, if the
other party so requests, the Company or Seller, as the case may be, shall allow
the other party to take possession of such books and records.
(b) Buyer and Seller further agree, upon request, to use their best
efforts to obtain any certificate or other document from any governmental
authority or any other Person as may be necessary to mitigate, reduce or
eliminate any Tax that could be imposed.
(c) Buyer and Seller further agree, upon request, to provide the other
party with all information that either party may be required to report pursuant
to Section 6043 of the Code and all Treasury Department Regulations promulgated
thereunder with respect to the transactions contemplated by this Agreement.
Section 8.08. Employee Benefits. Nothing contained in this Agreement will
be considered as requiring the Buyer or the Company to continue any specific
plan or benefit, or to confer upon any employee, beneficiary, dependent, legal
representative or collective bargaining agent of such employee any right or
remedy of any nature or kind whatsoever under or by reason of this Agreement,
including without limitation any right to employment or to continued employment
for any specified period following the Closing, at any specified location or
under any specified job category, except as specifically provided for in an
offer letter or other agreement of employment.
Section 8.09. Trademark Assignment. For the Purchase Price, Seller, on
behalf of the Company, hereby assigns and transfers to Buyer all right, title
and interest of the Company in and to the trademarks and service marks,
trademark and service xxxx registrations and trademark and service xxxx
applications listed on Schedule 3.09 (the "Trademarks"), together with the
goodwill of the Company's business symbolized thereby, as well as any causes of
action the Company may have for infringement of the Trademarks as of the Closing
Date. For the Purchase Price, Seller will cause Ziff Xxxxx Publishing Holdings
Inc. ("Holdings") to, assign and transfer to the Company all right, title and
interest of Holdings in and to all Websites listed on Schedule 3.09 used in the
Company's business and owned by Holdings. The Seller covenants that no
assignment, sale, agreement or encumbrance has been or will be made or entered
into which would conflict with this assignment and sale. Seller further
covenants that Seller will, upon Buyer's request, promptly execute and deliver
to Buyer, any and all papers or instruments required to maintain and enforce the
Trademarks which may be necessary or desirable to carry out the purposes hereof.
Section 8.10. Certain Employees. Buyer acknowledges and agrees that (i)
certain
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employees of Seller or Seller's Affiliates are occupying and using the premises
that the Company is currently utilizing located at 000 Xxxxxxxx Xxxxx, Xxxxxx
Xxxx, Xxxxxxxxxx (the "Facility"), and (ii) such employees and certain assets
used exclusively by such employees of Seller or Seller's Affiliates located at
such premises are the property of Seller or an Affiliate of Seller. Upon the
Closing, Buyer shall cause the Company to grant to Seller or an Affiliate of
Seller, as the case may be, the right and license to use and occupy the Facility
for a period of thirty (30) days after the Closing and Seller shall, or shall
cause an Affiliate of Seller to, remove such employees and assets from the
Facility within such period.
Section 8.11. Certain Taxes. All transfer, documentary, sales, use, stamp,
registration and other similar Taxes and fees (including any penalties and
interest) incurred in connection with this Agreement (including any New York
State Gains Tax, New York City Transfer Tax and any similar tax imposed in other
states or subdivisions), shall be paid when due by the party against which such
Taxes or Fees are assessed, and such party will, at its own expense, file all
necessary Tax Returns and other documentation with respect to all such transfer,
documentary, sales, use, stamp, registration and other similar Taxes and fees,
and, if required by applicable law, the Seller or Buyer, as the case may be,
will, and will cause its affiliates to, join in the execution of any such Tax
Returns and other documentation.
Section 8.12. Assignment of Leases. Prior to Closing, Seller shall use its
reasonable best efforts to secure the assignment of the Xxxxxx City Lease to the
Company. To the extent that the Xxxxxx City Lease is not assigned to the Company
prior to Closing, Buyer and Seller will cooperate to secure the assignment of
the Xxxxxx City Lease to the Company after the Closing. At the Closing, Buyer
shall assume all liabilities and obligations with respect to the Leases and be
entitled to all benefits and rights under the Leases.
Section 8.13. Continuation of Benefit Coverage. For a period beginning on
the Closing Date and continuing until July 31, 2002, Seller shall, or shall
cause its appropriate Affiliate to, provide the employees of the Company the
same medical, dental, vision, life and disability coverage as was provided to
such employees under Seller's or an Affiliate of Seller's employee benefit plans
immediately before Closing. Buyer shall promptly after July 31, 2002 reimburse
Seller or the appropriate Affiliate of Seller for all costs and expenses
incurred by Seller or its Affiliates in providing such coverage.
ARTICLE IX
CONDITIONS TO CLOSING
Section 9.01. Conditions to the Obligations of Each Party. The obligations
of Buyer and Seller to consummate the Closing are subject to the satisfaction of
the following conditions:
(a) No provision of any applicable law or regulation and no judgment,
injunction, order or decree shall prohibit the consummation of the Closing
substantially on the terms contained herein.
(b) No proceeding challenging this Agreement or the transactions
contemplated hereby or seeking to prohibit, alter, prevent or materially delay
the Closing shall have been instituted by any Person before any court,
arbitrator or governmental body, agency or official and be pending.
(c) Each of Buyer and Seller shall have executed and delivered to the
other each of the Ancillary Agreements to be entered into at Closing, in each
case substantially in the form attached as an Exhibit to this Agreement.
Section 9.02. Conditions to Obligation of Buyer. The obligation of Buyer
to
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consummate the Closing is subject to the satisfaction of the following further
conditions:
(a) (i) Seller shall have performed in all material respects all of its
obligations hereunder required to be performed by it at or prior to the Closing
Date, (ii) the representations and warranties of the Company and Seller
contained in this Agreement which are qualified as to materiality shall have
been true and correct, and the representations and warranties of the Company and
Seller which are not qualified as to materiality shall have been true and
correct in all material respects, in each case, as of the date hereof and as of
the Closing Date as if made at and as of such date and (iii) Buyer shall have
received a certificate signed by an officer of the Seller to the foregoing
effect.
(b) Without prejudice to Buyer's rights under Section 9.02(a), Seller
shall have delivered to Buyer revised schedules to this Agreement containing
information updated to the Closing Date.
(c) Buyer shall have received such closing documents as it may
reasonably request, all in form and substance reasonably satisfactory to Buyer.
(d) Seller shall have delivered to Buyer a balance sheet of the Company
dated as of June 30, 2002 and such balance sheet shall not show any Material
Adverse Change from the Latest Balance Sheet.
(e) Seller shall have obtained releases of the guarantees of the Company
of any debt obligations of Seller or its Affiliates.
(f) Buyer shall have received copies of all documents, satisfactory in
form and substance to Buyer and its counsel, providing for the Seller's senior
lenders' release of any Liens attaching to the Company Stock and the assets and
properties of the Company
(g) Seller shall have delivered to Buyer a properly executed certificate
satisfying the requirements of Treasury Regulation Section 1.1445-2(b)(2) in a
form reasonably satisfactory to Buyer.
Section 9.03. Conditions to Obligations of Seller. The obligation of
Seller to consummate the Closing is subject to the satisfaction of the following
further conditions:
(a) (i) Buyer shall have performed in all material respect all of its
obligations hereunder required to be performed by it at or prior to the Closing
Date, (ii) the representations and warranties of Buyer contained in this
Agreement which are qualified as to materiality shall have been true and
correct, and the representations and warranties of Buyer which are not qualified
as to materiality shall have been true and correct in all material respects, in
each case, as of the date hereof and as of the Closing Date, as if made at and
as of such date and (iii) Seller shall have received a certificate signed by an
officer of Buyer to the foregoing effect.
(b) Seller shall have obtained the consent of the its senior lenders to
the transactions contemplated herein and the senior lenders shall have released
their liens on the Company Stock and, if any, on the assets and properties of
the Company.
(c) The amount of accounts receivable of the Company at Closing shall be
at least $900,000.
(d) Seller shall have received all other closing documents it may
reasonably request, all in form and substance reasonably satisfactory to Seller.
ARTICLE X
SURVIVAL; INDEMNIFICATION
Section 10.01. Survival. The covenants, agreements, representations and
warranties of the parties hereto contained in this Agreement or in any
certificate or other writing delivered
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pursuant hereto or in connection herewith shall survive the Closing until the
first anniversary of the Closing Date or in the case of the covenants,
agreements, representations and warranties contained in Sections 3.14, 3.15 and
8.04 through and including 8.07, until the expiration of the applicable
statutory period of limitations (giving effect to any waiver, mitigation or
extension thereof), if later (the "Expiration Date"). Notwithstanding the
preceding sentence, any covenant, agreement, representation or warranty in
respect of which indemnity may be sought under Section 10.02 shall survive the
time at which it would otherwise terminate pursuant to the preceding sentence,
if notice of the inaccuracy or breach thereof giving rise to such right to
indemnity shall have been given to the party against whom such indemnity may be
sought prior to such time, with respect to the item contained in such notice.
Neither Seller nor Buyer shall be liable for any claim for indemnification under
Section 10.02 unless written notice specifying in reasonable detail the nature
of the claim thereunder is delivered by the Person seeking indemnification to
the Person from whom indemnification is sought prior to the Expiration Date. Any
investigation or other examination that may have been made or may be made at any
time by or on behalf of the party to whom representations and warranties are
made shall not limit, diminish or in any way affect the representations and
warranties in this Agreement, and the parties may rely on the representations
and warranties in this Agreement irrespective of any information obtained by
them during any investigation, examination or otherwise.
Section 10.02. Indemnification.
(a) Seller and ZDM shall jointly and severally indemnify Buyer and its
Affiliates (the "Buyer Group") against and agree to hold each of them harmless
from any and all damage, loss, liability and expense (including, without
limitation, reasonable expenses of third party investigations and reasonable
attorneys' fees and expenses in connection with any action, suit or proceeding
but excluding any incidental, consequential or punitive damages) (collectively,
"Loss") incurred or suffered by Buyer or any of its Affiliates arising out of:
(i) any inaccuracy in any representation or breach of
warranty of Seller contained in this Agreement or any certificate or other
writing delivered pursuant hereto or thereto or in connection herewith or
therewith (taking into account any disclosures made pursuant to Section
2.04(d));
(ii) any failure by Seller or any of its Affiliates to
perform or observe, or to have performed or observed, in full, any covenant
or agreement to be performed or observed by them in this Agreement; or
(iii) any federal or state Tax liability of the Company
attributable to periods (or any portion thereof) ending on or prior to the
Closing but only to the extent such liabilities were not accrued for on the
Latest Balance Sheet.
(b) Buyer shall indemnify Seller and its Affiliates (the "Seller Group")
against and agrees to hold each of them harmless from any and all Loss incurred
or suffered by the Seller Group arising out of:
(i) any inaccuracy in any representation or breach of
warranty of the Buyer contained in this Agreement or any certificate or
other writing delivered pursuant hereto or thereto or in connection
herewith or therewith; or
(ii) any failure by Buyer or any of its Affiliates to
perform or observe, or to have performed or observed, in full, any covenant
or agreement to be performed or observed by them in this Agreement.
The Buyer Group's right to seek indemnification hereunder, and the
aggregate liability of
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Seller, ZDM and their Affiliates to the Buyer Group with respect to the
transaction contemplated by this Agreement, (x) shall be limited solely to an
aggregate amount equal to the Purchase Price (the "Cap") and (y) the Buyer Group
shall not be entitled to seek indemnification with respect to any individual
Loss unless such Loss together with all other Losses of the Buyer Group exceeds
1% of Purchase Price in the aggregate, in which case the Buyer Group shall be
entitled to indemnification relating back to the first dollar of Losses;
provided that the Buyer Group's right to seek indemnification hereunder for any
(i) inaccuracy or breach of the representations and warranties contained in
Sections 3.06 (Litigation), 3.14 (Taxes) 3.15 (Employee Benefit Plans) and (ii)
any failure by Seller or any of its Affiliates to perform or observe any
covenant contained in Sections 8.04 (Tax Returns for Periods Through Closing
Date) through and including 8.07 (Cooperation on Tax Matters) shall not be
limited to the Cap. The Seller Group's right to seek indemnification hereunder,
and the aggregate liability of Buyer and Affiliates to Seller Group with respect
to the transactions contemplated by this Agreement shall be limited solely to an
aggregate amount equal to the Cap; provided that the Seller Group's right to
seek indemnification hereunder for any (i) inaccuracy or breach of the
representations and warranties contained in Section 5.08 (Investment Intent) and
(ii) any failure by Buyer or any of its Affiliates (including without
limitation, the Company after the Closing) to perform or observe any covenant
contained in Sections 8.04 (Tax Returns For Periods Through Closing Date)
through and including 8.07 (Cooperation on Tax Matters) shall not be limited to
the Cap.
The Seller Group's indemnifications obligation to the Buyer Group in
respect of Losses for which indemnification is provided under this Agreement (a
"Seller Group Indemnified Loss") will be reduced by any amounts received or
receivable by or on behalf of the Buyer Group from third parties (net of costs
and expenses (including reasonable legal fees and expenses) incurred by the
Buyer Group in connection with seeking to collect and collecting such amounts),
in respect to such Seller Indemnified Losses. No insurer or other third party
who would otherwise be obligated to pay any claim shall be relieved of the
responsibility with respect to such claim or, solely by virtue of the
indemnification provisions hereof, have any subrogation rights with respect to
such claim. The Parties agree that the indemnification provisions hereof shall
not confirm any benefit upon an insurer or any other third party which such
insurer or other third party would not be entitled to receive in the absence of
the indemnification provisions.
Section 10.03. Procedures; No Waiver; Exclusivity.
(a) The party seeking indemnification under Section 10.02 (the
"Indemnified Party") agrees to give prompt notice to the party against whom
indemnity is sought (the "Indemnifying Party") of the assertion of any claim, or
the commencement of any suit, action or proceeding in respect of which indemnity
may be sought under such Section. Seller may, at its option, assume the defense
of the Indemnified Party against any third party claim with respect to which the
Buyer Group is seeking indemnification under Section 10.02(a) above (including
the employment of counsel and the payment of expenses). Buyer may, at its
option, assume the defense of the Indemnified Party against any third party
claim with respect to which the Seller Group is seeking indemnification under
Section 10.02(b) above (including the employment of counsel and the payment of
expenses). Any Indemnified Party shall have the right to employ separate counsel
in any such third party claim and to participate in the defense thereof, but the
fees and expenses of such counsel shall not be an expense of the Indemnifying
Party unless (i) the Indemnifying Party shall have failed, within a reasonable
time after having been notified by the Indemnified Party of the existence of
such third party claim, to assume the defense of such
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third party claim or (ii) the employment of such counsel has been specifically
authorized by the Indemnifying Party in the case of all third party claims with
respect to which the Buyer Group is entitled to indemnification under Section
10.02(a) above. The Indemnifying Party shall not be liable under Section 10.02
for any settlement effected without its consent (which consent shall not be
unreasonably withheld or delayed) of any claim, litigation or proceeding in
respect of which indemnity may be sought hereunder.
(b) After the Closing, Section 10.02 will provide the exclusive remedy
for any misrepresentation, breach of warranty, covenant or other agreement or
other claim arising out of this Agreement or the sale of Company Stock to the
Buyer; provided, however, that nothing set forth in this sentence shall limit or
impair the rights and remedies that any party hereto may have for equitable
relief or specific performance. Notwithstanding the foregoing, that there will
be no limitation on the obligations of any Indemnifying Party for indemnifiable
amounts arising out of criminal activity or activity constituting fraud under
applicable law by such party in connection with this Agreement.
ARTICLE XI
TERMINATION
Section 11.01. Grounds for Termination. This Agreement may be
terminated at any time prior to the Closing:
(i) by mutual written agreement of Seller and Buyer; or
(ii)by either Seller or Buyer if the Closing shall not have been
consummated on or before July 19, 200; provided, however, that
the right to terminate this Agreement pursuant to the preceding
clause will not be available to any party whose breach of this
Agreement has been a significant cause of, or resulted in, the
failure of the Closing Date to occur on or before such date.
Section 11.02. Effect of Termination. If this Agreement is
terminated as permitted by Section 11.01, such termination shall be without
liability of either party (or any shareholder, director, officer, employee,
agent, consultant or representative of such party) to the other party to this
Agreement; provided that if such termination shall result from the willful
failure of either party to fulfill a condition to the performance of the
obligations of the other party or to perform a covenant of this Agreement or
from a willful breach by either party to this Agreement, such party shall be
fully liable for any and all Losses incurred or suffered by the other party as a
result of such failure or breach. The provisions of Section 12.03 shall survive
any termination hereof pursuant to Section 11.01.
ARTICLE XII
MISCELLANEOUS
Section 12.01. Notices. All notices, requests and other communications
to either party hereunder shall be in writing (including telex, telecopy or
similar writing) and shall be given,
if to Buyer, to:
Xxxx X. Xxxxx, Chairman and Chief Executive Officer
Lionbridge Technologies, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Telecopy: 781.434.6034
with a copy to:
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Xxxxxxxx X. Xxxxxx
General Counsel
000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Telecopy: 781.434.6034
if to Seller, to:
Xxxx Xxxxxxxx, COO & CFO
Ziff Xxxxx Media Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: 212.503.3550
with a copy to:
Xxxxxxx Xxxxxx Xxxxx, General Counsel
Ziff Xxxxx Media Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: 212.503.3560
Section 12.02. Amendments; No Waivers.
(a) Any provisions of this Agreement may be amended or waived if, and only
if, such amendment or waiver is in writing and signed, in the case of an
amendment, by the Buyer and Seller, or in the case of a waiver, by the party
against whom the waiver is to be effective.
(b) No failure or delay by either party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
Section 12.03. Expenses. Except as otherwise provided herein, all costs and
expenses incurred in connection with this Agreement shall be paid by the party
incurring such cost or expense.
Section 12.04. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
Section 12.05. Governing Law. This Agreement shall be construed in
accordance with and governed by the law of the State of New York, without regard
to the conflicts of law rules of
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such state.
Section 12.06. Counterparts; Effectiveness. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto shall have received
a counterpart hereof signed by the other party hereto.
Section 12.07. Entire Agreement. This Agreement and the Ancillary
Agreements constitute the entire agreement between the parties with respect to
the subject matter hereof and supersedes all prior agreements, understandings
and negotiations, both written and oral, between the parties with respect to the
subject matter of this Agreement. No representation, inducement, promise,
understanding, condition or warranty not set forth herein has been made or
relied upon by either party hereto.
Section 12.08. Captions. The captions herein are included for convenience
of reference only and shall be ignored in the construction or interpretation
hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties hereto here caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
LIONBRIDGE TECHNOLOGIES, INC.
By: /s/ Xxxxxxx Xxxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxxxx
---------------------------
Title: Senior Vice President,
----------------------------
Chief Financial Officer
-----------------------
ZIFF XXXXX DEVELOPMENT INC.
By: /s/ Xxxx X. Xxxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxxx
---------------------------
Title: Chief Operating Officer and
--------------------------
Chief Financial Officer
-----------------------
ZIFF XXXXX MEDIA INC.
By: /s/ Xxxx X. Xxxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxxx
---------------------------
Title: Chief Operating Officer and
----------------------------
Chief Financial Officer
------------------------
[Signature page to Stock Purchase Agreement]
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