EXHIBIT 2.4
**Confidential portions have been omitted pursuant to a request for confidential
treatment and have been filed separately with the Securities and Exchange
Commission (the "Commission").**
CONFIDENTIAL TREATMENT
ASSET SALE AND PURCHASE AGREEMENT
BETWEEN
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED, AS SELLER
AND
FT INTERACTIVE DATA CORPORATION, AS BUYER
RELATING TO SELLER'S SECURITIES PRICING SERVICE BUSINESS
Table of Contents
Page No.
ARTICLE I CERTAIN DEFINITIONS....................................................................... 1
ARTICLE II PURCHASE AND SALE OF ASSETS............................................................... 7
2.01 Purchase Price................................................................................ 7
2.02 Delivery of Purchase Price.................................................................... 7
2.03 Sale and Purchase of the Acquired Assets...................................................... 8
ARTICLE III CLOSING................................................................................... 8
3.01 Actions to be Taken at Closing................................................................ 8
3.02 Interdependence............................................................................... 9
3.03 Time and Place of Closing..................................................................... 9
ARTICLE IV REPRESENTATIONS, WARRANTIES AND DISCLAIMERS OF SELLER..................................... 10
4.01 Organization and Good Standing................................................................ 10
4.02 Authority..................................................................................... 10
4.03 Authorizations................................................................................ 10
4.04 No Conflicts.................................................................................. 10
4.05 Compliance with Applicable Laws............................................................... 10
4.06 Contracts..................................................................................... 10
4.07 Equipment..................................................................................... 11
4.08 Financial Information......................................................................... 11
4.09 Finder's Fees and Commissions................................................................. 11
4.10 Intellectual Property......................................................................... 11
4.11 Litigation and Claims......................................................................... 11
4.12 Permits....................................................................................... 12
4.13 Recent Conduct of the Business................................................................ 12
4.14 Taxes......................................................................................... 12
4.15 Title to Tangible Assets...................................................................... 12
4.16 Employee Benefit Plans; ERISA................................................................. 13
4.17 Employment Arrangements....................................................................... 13
4.18 No Material Change............................................................................ 13
4.19 Absence of Certain Customer Changes........................................................... 13
ARTICLE V REPRESENTATIONS AND WARRANTIES OF BUYER................................................... 13
5.01 Organization and Good Standing................................................................ 14
5.02 Authority..................................................................................... 14
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5.03 Authorizations................................................................................ 14
5.04 No Conflicts.................................................................................. 14
5.05 Finder's Fees and Commissions................................................................. 14
5.06 Available Funds............................................................................... 14
5.07 Litigation and Claims......................................................................... 14
ARTICLE VI COVENANTS................................................................................. 14
6.01 Additional Documents.......................................................................... 14
6.02 Bulk Transfer Laws............................................................................ 15
6.03 Confidentiality............................................................................... 15
6.04 Tax Matters................................................................................... 16
6.05 Efforts to Close.............................................................................. 17
6.06 Expenses...................................................................................... 17
6.07 Operation of the Business Prior to Closing.................................................... 17
6.08 Removal of Acquired Assets.................................................................... 18
6.09 Tax Records................................................................................... 18
6.10 Employee Matters.............................................................................. 18
6.11 Collection of Accounts Receivable and Remittance of Payments Received......................... 19
6.12 Access to Books and Records................................................................... 20
6.13 Customer Notification......................................................................... 20
6.14 Notice of Developments........................................................................ 20
6.15 Delivery of Acquired Assets after the Effective Time.......................................... 21
6.16 Non-Compete................................................................................... 21
6.17 Confidentiality Agreements.................................................................... 22
6.18 Seller Invoiced Contracts..................................................................... 22
6.19 Regulation S-X Financial Statements........................................................... 22
ARTICLE VII CONDITIONS TO SELLER'S OBLIGATION TO CLOSE................................................ 22
7.01 Buyer's Representations and Warranties True................................................... 22
7.02 Performance of Buyer's Obligations............................................................ 23
7.03 Authorizations/Waiting Periods................................................................ 23
7.04 No Injunction/Order........................................................................... 23
7.05 Lapse of Customer Notification Period......................................................... 23
ARTICLE VIII CONDITIONS TO BUYER'S OBLIGATION TO CLOSE................................................. 23
8.01 Seller's Representations and Warranties True.................................................. 23
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8.02 Performance of Seller's Obligations........................................................... 23
8.03 Authorizations/Waiting Periods................................................................ 23
8.04 No Injunction/Order........................................................................... 24
8.05 Lapse of Customer Notification Period......................................................... 24
ARTICLE IX INDEMNIFICATION AND ARBITRATION........................................................... 24
9.01 Survival of Representations, Warranties, Covenants and Agreements............................. 24
9.02 Indemnification by Seller..................................................................... 24
9.03 Indemnification by Buyer...................................................................... 26
9.04 Dispute Resolution............................................................................ 27
9.05 Limitations................................................................................... 28
9.06 Termination of Indemnification................................................................ 29
ARTICLE X TERMINATION............................................................................... 29
10.01 Termination................................................................................... 29
10.02 Procedure and Effect of Termination........................................................... 29
ARTICLE XI MISCELLANEOUS............................................................................. 30
11.01 Amendment and Modification.................................................................... 30
11.02 Waiver of Compliance.......................................................................... 30
11.03 No Third-Party Beneficiaries.................................................................. 30
11.04 Notices....................................................................................... 30
11.05 Exhibits and Schedules; Incorporation by Reference............................................ 31
11.06 Successors and Assigns........................................................................ 31
11.07 Entire Agreement.............................................................................. 31
11.08 Severability.................................................................................. 31
11.09 Captions...................................................................................... 31
11.10 Counterparts.................................................................................. 31
11.11 Governing Law................................................................................. 32
11.12 Jurisdiction and Service of Process........................................................... 32
11.13 Waiver of Jury Trial.......................................................................... 32
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This is an ASSET SALE AND PURCHASE AGREEMENT ("Agreement"), dated as of
December 31st 2001, by and between Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, a Delaware corporation ("Seller"), and FT Interactive Data
Corporation, a Delaware corporation ("Buyer"). Each of Seller and Buyer may
hereinafter be referred to as a "Party," or collectively, as "Parties."
This Agreement sets forth the terms and conditions upon which Seller
will sell and transfer to Buyer, and Buyer will purchase and accept from Seller,
the Acquired Assets and the Assumed Liabilities (each as hereinafter defined).
In consideration of the mutual agreements contained in this Agreement, and
intending to be legally bound by this Agreement, the Parties to this Agreement
agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
1.01 "ACQUIRED ASSETS" means the following assets of the Business:
(a) the Books and Records;
(b) obligations, claims, rights and benefits of Seller arising
after the Effective Time pursuant to any Contract;
(c) the Equipment;
(d) goodwill exclusively related to the Business not otherwise
specifically identified in this Agreement;
(e) subject to the license to be granted pursuant to the Data and
Software License and Services Agreement, the Intellectual
Property and the Documentation;
(f) all Licenses;
(g) all rights, claims, and causes of action to the extent
relating to the Acquired Assets or Assumed Liabilities
including rights of defense, setoff or counterclaim;
(h) the other assets identified on Schedule 1.01; and
(i) the aluminum frame of the professional trade show exhibition
booth used by Seller in the Business.(1)
Notwithstanding the above, the Acquired Assets do not include any of
the Excluded Assets.
1.02 "ACTION" means any claim, action, litigation, suit, arbitration,
mediation, or any proceeding by or before any mediator or Governmental
Entity, or any subpoena, or demand preliminary to any of the foregoing.
(1) Amended on January 31, 2002.
1.03 "AFFILIATE" means, with respect to a Person, another Person that
directly, or indirectly through one or more intermediaries, Controls,
or is Controlled by, or is under common Control with, such Person.
1.04 "ANTITRUST LAWS" means the HSR Act and all other statutes, rules,
regulations, orders, decrees, administrative and judicial doctrines,
and other laws (whether national, foreign, federal, state, provincial,
local or other) that are designed or intended to prohibit, restrict or
regulate actions having the purpose or effect of monopolization or
restraint of trade.
1.05 "ASSUMED LIABILITIES" means the following liabilities, whether known or
unknown, accrued or contingent, direct or indirect:
(a) all liabilities arising out of or related to the operation of
the Business or ownership of the Acquired Assets after the
Effective Time (for the avoidance of doubt, nothing in this
Section 1.05(a) shall relieve Seller from any liabilities
arising from its obligations under any other Transaction
Document);
(b) all liabilities for Taxes arising out of or related to the
operation of the Business or ownership of the Acquired Assets
after the Effective Time; and
(c) all post-Effective Time liabilities of Seller pursuant to any
Contract assigned hereunder, but excluding any liability or
obligation relating to or arising out of any such Contract as
a result of the failure of Seller to obtain the consent of any
third party as set forth on Schedule 4.04 to assign any
Contract being assigned hereunder or any breach by Seller of
any such Contract occurring at any time prior to the Effective
Time; provided, however, that the term "Assumed Liabilities"
shall in no event include any of Seller's accounts payable.
1.06 "ASSUMPTION AGREEMENT AND XXXX OF SALE" means that agreement in a form
reasonably acceptable to both Buyer and Seller, to be executed by Buyer
and Seller as of the Effective Time, dealing with the assumption by
Buyer of the Assumed Liabilities and the assignment by Seller of the
Contracts and the other Acquired Assets.
1.07 "AUTHORIZATION" means any legally required consent, authorization,
approval, order, license, certificate or permit of or from, or
declaration or filing with, any Governmental Entity including, without
limitation, any legally required filing with any Governmental Entity
and the subsequent expiration of any legally required waiting period
under any Antitrust Laws.
1.08 "BOOKS AND RECORDS" means all personnel records, customer invoices,
customer lists, supplier lists, price lists, operating, production and
other manuals, quality procedures and other documents, records and
files owned by Seller at the Closing Date that relate to, or are used
in connection with, the Business and the Acquired Assets, but only to
the extent that they are segregable from the books and records of
Seller that do not relate to the Acquired Assets; provided, however,
that after the Closing Date, Buyer shall have access to any Books and
Records that are not segregable from the books and records of Seller
that relate to the Acquired Assets and the Business in accordance with
the provisions of Section 6.12.
1.09 "BUSINESS" means those activities conducted by Seller's Securities
Services Division that are referred to as the "Securities Pricing
Service."
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1.10 "BUSINESS DAY" means any day on which commercial banks in New York City
are open for business providing substantially all services offered by
such banks.
1.11 "CLOSING" means the closing of the transactions contemplated by this
Agreement in accordance with the terms and upon the conditions set
forth in this Agreement.
1.12 "CLOSING DATE" means the date on which the Closing occurs, as provided
in Section 3.03 of this Agreement.
1.13 "CODE" means the Internal Revenue Code of 1986, as amended.
1.14 "CONTRACTS" means the contracts and agreements set forth on Schedule
1.14.
1.15 "CONTROL" means, with respect to a Person, the ownership by another
Person of greater than 50% of the income or voting interests of such
Person, or such other arrangement as constitutes the direct or indirect
ability to direct the management, affairs or actions of such Person.
1.16 "COPYRIGHTS" means all copyright rights in the Xxxxxxx Xxxxx Code and
any pending applications and registrations therefor, along with any and
all rights of enforcement with respect thereto, including all rights to
xxx or recover for the past, present and future infringement thereof,
and any and all choses in action related thereto.
1.17 "DATA AND SOFTWARE LICENSE AND SERVICES AGREEMENT" means the data and
software license and services agreement to be entered into between
Seller and Buyer at the Closing Date, in the form attached as Exhibit
1.17.
1.18 "DOCUMENTATION" means any written documents or other written materials,
which, to the Knowledge of Seller, are in the Seller's possession and
which were created or prepared exclusively in the development of the
Intellectual Property, including research reports, invention
disclosures, procedures, drawings, plans, annotations to computer
software, manuals, memoranda and notes and engineering, technical,
research and development data.
1.19 "DOJ" means the United States Department of Justice.
1.20 "EFFECTIVE TIME" means 11:59:59 p.m.(2) Eastern Time on the Closing
Date.
1.21 "EQUIPMENT" means those capital assets set forth on Schedule 1.21.
1.22 "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
1.23 "ERISA AFFILIATE" means any Person that is or has been in the six year
period ending on the Closing Date treated as a single employer with the
Seller under Sections 414(b), (c), (m) or (o) of the Code or Section
4001(b)(1) of ERISA.
1.24 "EXCLUDED ASSETS" means any and all assets not expressly listed as
Acquired Assets, whether or not used in the Business. By way of
clarification, and not of limitation, Buyer acknowledges that the
following assets are Excluded Assets:
(a) all rights of Seller under the Transaction Documents;
(2) Amended on January 31, 2002.
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(b) the minute books from the meetings of the board of directors
and stockholders of Seller, the stock records of Seller and
Seller's corporate seal;
(c) the names Xxxxxxx Xxxxx & Co., Inc., Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated, Xxxxxxx Xxxxx and the Xxxxxxx
Xxxxx "Bull" logo, whether in logo, type design or any other
style or design, and any name or xxxx derived from or
including any of the foregoing;
(d) Seller's interest in its employee welfare, benefit or other
similar plans;
(e) all cash, cash equivalents, securities and negotiable
instruments of Seller on hand, in lock boxes, in financial
institutions or elsewhere;
(f) all books and records prepared solely in connection with the
sale of the Assets, including offers received from prospective
purchasers of the Acquired Assets and any information relating
solely to such offers;
(g) any of Seller's books and records, the disclosure of which
would violate applicable law or agreements binding on Seller
that are not being assigned to Buyer;
(h) any records that relate primarily to the foregoing or that
relate primarily to any Excluded Liabilities and, if also
relating to the Acquired Assets or the Assumed Liabilities,
that are not segregable from those relating to the foregoing
or the Excluded Liabilities; provided, however, that after the
Closing Date, Buyer shall have access to certain of such
records in accordance with the provisions of Section 6.12;
(i) all rights of defense, set-off or counterclaim relating to any
Excluded Liabilities;
(j) all supply contracts relating to the Business to which Seller
is a party;
(k) All trade accounts receivable and rights to receive payments
to the extent arising from the conduct of the Business before
the Closing Date, including any rights of the Seller with
respect to third party collection proceedings or any other
Actions which have been commenced in connection therewith; and
(l) all proceeds of any of the foregoing.
1.25 "EXCLUDED LIABILITIES" means all of the liabilities of Seller that are
not Assumed Liabilities.
1.26 "FINANCIAL INFORMATION" means the information described or set forth in
Schedule 1.26.
1.27 "FTC" means the United States Federal Trade Commission.
1.28 "GOVERNMENTAL ENTITY" means any arbitrator, court, judicial,
administrative or regulatory agency, commission, department, board or
bureau or body or other governmental authority or instrumentality, or
any Person or entity exercising executive, judicial, regulatory or
administrative functions of or pertaining to government, whether
national, foreign, federal, state, provincial, local or other.
1.29 "HSR ACT" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976 (as amended).
1.30 "INTELLECTUAL PROPERTY" means the Copyrights and the Trade Secrets.
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1.31 "IRS" means the United States Internal Revenue Service.
1.32 "KNOWLEDGE OF" means, whether or not capitalized, in the case of each
of Seller and Buyer, the actual knowledge, after reasonable review of
appropriate records and reasonable inquiry of appropriate employees of
Seller, of the persons named on Schedule 1.32.
1.33 "LICENSES" means all licenses, permits, franchises, approvals and
authorizations (including applications therefor) listed on Schedule
1.33.
1.34 "MANAGEMENT" means created in the ordinary course of business according
to industry standards and Seller's policies and practices including
internal allocations of costs and expenses.
1.35 "MATERIAL" and its variations when capitalized mean, with respect to an
event, circumstance or condition, that such event, circumstance or
condition, individually or in the aggregate, has a material adverse
effect upon the assets, financial condition or operations of the
Business taken as a whole, other than effects resulting from general
economic changes, changes in the securities industry generally, changes
resulting from the announcement of the transactions contemplated by
this Agreement or changes resulting from disclosure of the identity of
the Buyer.
1.36 "XXXXXXX XXXXX CODE" means the VM Pricing Delivery System, Model
Pricing System, Unix/Cornerstone II and Pricing Models software
products, each as further described in Schedule 1.36, and each in
object and Source Code (as such term is defined in the Data and
Software License and Services Agreement), together with the customer
output file layouts contained in the book designated as the `SPS
Formats and Appendices'.
1.37 "ML FIXED INCOME OUTPUT LICENSE" means the license to be entered into
at the Closing Date between Seller and Buyer, substantially in the form
attached as Exhibit 1.37.
1.38 "PERMITTED LIENS" means (a) liens for taxes, assessments and
governmental charges not yet due and payable or being contested in good
faith; (b) liens expressly set forth in the Financial Information as
securing specific liabilities; (c) those liens set forth on Schedule
1.38, which do not and could not reasonably be expected to,
individually or in the aggregate have a material adverse effect on the
Acquired Assets and (d) other imperfections of title, security
interests, liens, pledges, claims, charges or options, if any, which do
not and could not reasonably be expected to, individually or in the
aggregate, have a material adverse effect on the Acquired Assets.
1.39 "PERSON" means (as the context requires) an individual, a corporation,
a partnership, an association, a trust, a limited liability company or
other entity or organization, including a Governmental Entity.
1.40 "REAL ESTATE LICENSES" means the real estate licenses to be entered
into at the Closing Date between Seller and Buyer relating to 000
Xxxxxxxxxx Xxxxxx, 000 Xxxxxx Xxxxxx and 00 Xxxxxx Xxxxxx, each
substantially in the form attached as Exhibit 1.40.
1.41 "SELLER PLAN" means any plan, fund, program, policy, arrangement,
contract or commitment which is (a) an employee pension benefit plan
(as defined in ERISA Section 3(2)), (b) an employee welfare benefit
plan (as defined in ERISA Section 3(1)) or (c) an incentive or deferred
compensation benefit or other benefit arrangement which Seller (or its
Affiliate) sponsors, maintains or contributes to and under which
Continuing Employees participate.
1.42 "STRADDLE PERIOD" means any taxable period beginning before and ending
after the Closing Date.
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1.43 "TAX" and "TAXES" means all national, foreign, federal, state,
provincial, local or other taxes, fees, levies, duties or other
assessments or charges of whatever kind (including without limitation
income, sales, use, transfer, excise, stamp, property, value added,
recording, registration, intangible, documentary, goods and services,
real estate, sales, payroll, gains, gross receipts, withholding, and
franchise taxes) imposed by the United States or any state, county or
local government, subdivision or agency thereof, or any other
jurisdiction outside the United States together with any interest,
penalties, or additions payable in connection with such taxes, fees,
levies, duties or other assessments or charges.
1.44 "TRADE SECRETS" means the trade secrets, if any, used exclusively in
connection with the Xxxxxxx Xxxxx Code.
1.45 "TRANSACTION DOCUMENTS" means collectively: (a) this Agreement; (b) the
Assumption Agreement and Xxxx of Sale; (c) the Transitional Services
Agreement; (d) the Data and Software License and Services Agreement;
(e) the ML Fixed Income Output License and (f) the Real Estate
Licenses. The phrase "the consummation of the transactions contemplated
by this Agreement" or such similar phrases includes the execution,
delivery and performance of these Transaction Documents.
1.46 "TRANSITIONAL SERVICES AGREEMENT" means the agreement, in the form
attached as Exhibit 1.46 between Buyer and Seller, dealing with the
short-term provision of certain transitional services related to the
Business for Buyer by Seller and/or Seller's Affiliates.
1.47 "TRANSITIONAL SERVICES PERIOD" means the period during which Seller
will provide Buyer with the transitional services contemplated by the
Transitional Services Agreement.
1.48 "UNITED STATES" means the fifty states that comprise the United States
of America.
1.49 OTHER DEFINITIONS. Other terms defined in this Agreement, and the
location where they are defined are:
LOCATION
"AGREEMENT"....................................................... Preamble
"ALLOCATION ARBITER".............................................. Section 2.01(b)
"ASSET ACQUISITION STATEMENT"..................................... Section 2.01(b)
"BUYER"........................................................... Preamble
"BUYER BASKET".................................................... Section 9.05(c)(i)
"BUYER'S ASSERTION"............................................... Section 9.02(b)
"CLAIM"........................................................... Section 9.04(a)
"CONFIDENTIALITY AGREEMENT"....................................... Section 6.03(a)
"CONFIDENTIAL INFORMATION"........................................ Section 6.03(e)
"CONSUMMATION OF TRANSACTIONS CONTEMPLATED
BY THIS AGREEMENT"............................................... Section 1.45
"CONTINUING EMPLOYEES"............................................ Section 6.10(a)
"CUSTOMER NOTIFICATION"........................................... Section 6.13
"IDCO"............................................................ Section 6.19
"JAMS RULES"...................................................... Section 9.04(d)
"LOSSES".......................................................... Section 9.02(a)
"MATTER".......................................................... Section 11.05
"NON-DESIGNATED PAYMENT".......................................... Section 6.11(c)
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"NON-DESIGNATED PAYMENT THRESHOLD AMOUNT"......................... Section 6.11(c)
"PARTY"/"PARTIES"................................................. Preamble
"PURCHASE PRICE".................................................. Section 2.01
"RESTRICTED PERIOD"............................................... Section 6.16(a)
"RESTRICTIVE COVENANTS"........................................... Section 6.16(b)
"SELLER".......................................................... Preamble
"SELLER'S ASSERTION".............................................. Section 9.03(b)
"TAX RECORDS"..................................................... Section 6.9
"1933 ACT"........................................................ Section 6.19
ARTICLE II
PURCHASE AND SALE OF ASSETS
2.01 PURCHASE PRICE.
(a) The purchase price (the "Purchase Price") for the Acquired
Assets and the obligations of Seller under Section 6.16 shall
be $48,000,000 plus the assumption of the Assumed Liabilities.
(b) Within 180 days after the Closing Date, Buyer will provide to
Seller copies of IRS form 8594 and any required exhibits
thereto (the "Asset Acquisition Statement"). Within 30 days
after the receipt of such Asset Acquisition Statement, Seller
will propose to Buyer any changes to such Asset Acquisition
Statement (and in the event no such changes are proposed in
writing to Buyer within such time period, Seller will be
deemed to have agreed to, and accepted, the Asset Acquisition
Statement). Buyer and Seller will attempt in good faith to
resolve any differences with respect to the Asset Acquisition
Statement within 30 days after Buyer's receipt of written
notice of changes from Seller. If Seller has proposed a change
to the Asset Acquisition Statement, and Buyer and Seller have
acted in good faith to resolve any differences with respect to
items on the Asset Acquisition Statement and thereafter are
unable resolve any differences that, in the aggregate, are
material in relation to the Purchase Price, then any remaining
disputed matters will be finally and conclusively determined
by a mutually acceptable, nationally recognized independent
accounting firm that does not then have a relationship with
any of the Parties (the "Allocation Arbiter"). Promptly, but
not later than 15 days after its acceptance of appointment
hereunder, the Allocation Arbiter will determine only those
matters in dispute and will render a written report as to the
disputed matters which report shall be final, binding and
conclusive upon the Parties. To the extent that the Purchase
Price is adjusted after the Closing Date, the parties agree to
revise and amend IRS form 8594 in the same manner and
according to the same procedure. Buyer and Seller shall,
subject to the requirements of any applicable tax law or
election, file all Tax Returns and reports consistent with the
Asset Acquisition Statement and, if applicable, the
determination of the Allocation Arbiter, except that neither
party shall be unreasonably impeded in their ability and
discretion to negotiate, compromise and/or settle any Tax
audit, claim or similar proceedings. The fees and expenses of
the Allocation Arbiter shall be borne equally by Seller and
Buyer.
2.02 DELIVERY OF PURCHASE PRICE. In accordance with the terms and upon the
conditions of this Agreement, and in consideration of the sale of the
Acquired Assets to Buyer by Seller, at the Closing, Buyer will deliver
to Seller the Purchase Price in immediately available funds by wire
transfer to an account or accounts specified by Seller.
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2.03 SALE AND PURCHASE OF THE ACQUIRED ASSETS. In accordance with the terms
and upon the conditions of this Agreement, at the Closing, Seller will
sell, convey, assign, transfer and deliver to Buyer the Acquired Assets
and Assumed Liabilities, and Buyer will purchase, acquire, accept and
assume, the Acquired Assets and Assumed Liabilities.
ARTICLE III
CLOSING
3.01 ACTIONS TO BE TAKEN AT CLOSING. At the Closing, the following actions
will be taken:
(a) Seller will deliver to Buyer, duly executed, the following:
(i) a copyright assignment, in a customary and mutually
acceptable form for the assignment of the Copyrights;
(ii) an electronic copy and a hard copy of the Xxxxxxx
Xxxxx Code;
(iii) a certificate from Seller in a form reasonably
acceptable to Seller and Buyer to the effect that the
warranties and representations set forth in Article
IV of this Agreement are true and correct in all
material respects as of the Closing with the same
force and effect as if made on and as of such date,
except (x) for representations and warranties
qualified by materiality or the term "Material" (in
which case such representations and warranties shall
be true and correct in all respects) and (y) to the
extent such representations and warranties expressly
speak as of an earlier date (in which case such
representations and warranties shall be true and
correct in all respects, or in all material respects,
as the case may be, as of such earlier date), and
that all commitments required by this Agreement to be
performed by Seller prior to Closing have been
performed in all material respects by Seller; and
(iv) such other documents as are, in the reasonable
opinion of counsel for Seller and Buyer, necessary or
desirable to transfer the Assumed Liabilities and
Acquired Assets to Buyer.
(b) Buyer will deliver to Seller the following:
(i) a duly executed certificate from Buyer, in a form
reasonably acceptable to Seller and Buyer to the
effect that the warranties and representations set
forth in Article V of this Agreement are true and
correct in all material respects as of the Closing
with the same force and effect as if made on and as
of such date, except (x) for representations and
warranties, qualified by materiality (in which case
such representations and warranties shall be true and
correct in all respects) and (y) to the extent such
representations and warranties expressly speak as of
an earlier date (in which case such representations
and warranties shall be true and correct in all
respects, or in all material respects, as the case
may be, as of such earlier date), and that all
commitments required by this Agreement to be
performed by Buyer prior to Closing, except for those
which, individually or in the aggregate, will not
have a material adverse effect on this Agreement or
the transactions contemplated by this Agreement, have
been performed by Buyer;
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(ii) the Purchase Price, delivered as described in Section
2.02; and
(iii) such other documents as are, in the reasonable
opinion of counsel for Seller and Buyer, necessary or
desirable to transfer the Assumed Liabilities and
Acquired Assets to Buyer.
(c) Unless otherwise executed and delivered by Buyer and Seller
prior to the Closing, Seller and Buyer concurrently will duly
execute and deliver to each other:
(i) a certificate of its Secretary or an Assistant
Secretary of incumbency for all officers executing
the Transaction Documents and any other documents
contemplated by the Transaction Documents;
(ii) the Assumption Agreement and Xxxx of Sale;
(iii) the Transitional Services Agreement;
(iv) the Data and Software License and Services Agreement;
(v) the ML Fixed Income Output License; and
(vi) the Real Estate Licenses.
3.02 INTERDEPENDENCE. The transfers and deliveries described in this Article
III are mutually interdependent and are to be regarded as occurring
simultaneously as of the Effective Time. Unless agreed to in writing by
Seller and Buyer, no such transfer or delivery will become effective
until all other transfers and deliveries provided for in this Article
III have also become effective.
3.03 TIME AND PLACE OF CLOSING. The Closing will take place at the offices
of Xxxxxxxx Chance Xxxxxx & Xxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, as soon as practicable and, in any event, not later than
five Business Days after the satisfaction or waiver of all of the
conditions to Closing set forth in Articles VII and VIII, or at such
other date and place as Seller and Buyer agree.
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ARTICLE IV
REPRESENTATIONS, WARRANTIES AND DISCLAIMERS OF SELLER
Seller represents and warrants that the following are true and correct
as of the date of this Agreement.
4.01 ORGANIZATION AND GOOD STANDING. Seller is a corporation duly
incorporated, validly existing, and in good standing under the laws of
the State of Delaware, with full corporate power to own and sell the
Acquired Assets and to conduct the Business as presently conducted by
it.
4.02 AUTHORITY. Seller has all necessary corporate power and authority to
execute and deliver the Transaction Documents and to consummate the
transactions contemplated by the Transaction Documents. All corporate
actions and proceedings on the part of Seller that are necessary to
approve and authorize the execution and delivery of the Transaction
Documents and the consummation of the transactions contemplated by the
Transaction Documents have occurred, and, assuming proper execution and
delivery by Buyer, this Agreement is enforceable against Seller in
accordance with its terms and the other Transaction Documents will be
enforceable against Seller in accordance with their terms upon proper
execution and delivery to Buyer.
4.03 AUTHORIZATIONS. No Authorization is needed by Seller for the execution,
delivery, or performance of this Agreement and the consummation of the
transactions contemplated by this Agreement, except as set forth in
Schedule 4.03 or where the failure to obtain such Authorization will
not have a material adverse effect on this Agreement or the
consummation of the transactions contemplated by this Agreement.
4.04 NO CONFLICTS. The execution, delivery and performance of the
Transaction Documents by Seller and the consummation by Seller of the
transactions contemplated by the Transaction Documents will not, with
or without the giving of notice or passage of time, or both, violate
any law, rule or regulation or order, judgment or decree binding on
Seller and will not result in a breach of any term of the certificate
of incorporation or by-laws of Seller or result in a breach of, or
constitute a default under, any contract, agreement or other instrument
to which Seller is a party, including, without limitation, the
Contracts, except as set forth in Schedule 4.04 or where not Material.
4.05 COMPLIANCE WITH APPLICABLE LAWS. Except as set forth in Schedule 4.05
or where not Material, the Business is being and has been conducted in
compliance with all statutes, laws, ordinances, rules, orders and
regulations applicable to the Business and the Acquired Assets.
4.06 CONTRACTS. Except as set forth in Schedule 4.06(a), each written
Contract is in full force and effect and is enforceable in accordance
with its terms against Seller and, to the Knowledge of Seller, against
the other parties thereto **THE CONFIDENTIAL PORTION HAS BEEN SO
OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS BEEN
FILED SEPARATELY WITH THE COMMISSION.**. Except as set forth in
Schedule 4.06(b), or where not Material, Seller has performed all
obligations required to be performed by it to date under the written
Contracts and neither Seller, nor, to the Knowledge of Seller, any
other party thereto, is (with or without the lapse of time or the
giving of notice, or both) in breach or default under the written
Contracts. Except as set forth on Schedule 4.06(c), since **THE
CONFIDENTIAL PORTION HAS BEEN SO OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND HAS BEEN FILED SEPARATELY WITH THE
COMMISSION.** and through the date of this Agreement, Seller has not
received any written notice of any alleged material breach by Seller
under the Contracts. Schedule 1.14 sets forth a
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description that is true and correct in all material respects of the
following terms and conditions for each Contract that is not a written
Contract: (i) service being provided by Seller; (ii) current annual run
rate revenue; and (iii) billing commencement date (where available).
4.07 EQUIPMENT. Except as set forth in Schedule 4.07 or where not Material,
the Equipment is in good operating condition and repair, normal wear
and tear excepted, and is adequate for its current uses. SELLER
DISCLAIMS ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY
PURPOSE WITH RESPECT TO THE EQUIPMENT.
4.08 FINANCIAL INFORMATION. The Financial Information has been prepared
from, and is in accordance with the Management books and records of
Seller. The Financial Information has been prepared in accordance with
Seller's internal accounting practices, which practices have been
applied on a consistent basis throughout the periods covered thereby,
except as otherwise noted therein, and is true, complete and accurate
in all material respects, and fairly presents, on a Management basis,
in all material respects the results of operations of the Business for
the periods indicated in Schedule 1.26. Revenue recognized on the
Financial Information was recognized in accordance with generally
accepted accounting principles.
4.09 FINDER'S FEES AND COMMISSIONS. Neither Seller nor its Affiliates have
any liability or obligation to pay any fees or commissions to any
broker, finder or other agent with respect to the transactions
contemplated by this Agreement for which Buyer could become liable or
obligated.
4.10 INTELLECTUAL PROPERTY.
(a) Except as set forth in Schedule 4.10(a), Seller has all rights
necessary to sell, convey, assign, transfer and deliver to
Buyer the Intellectual Property and the Documentation free and
clear of any liens or other encumbrance except Permitted
Liens.
(b) Except as set forth in Schedule 4.10(b) **THE CONFIDENTIAL
PORTION HAS BEEN SO OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND HAS BEEN FILED SEPARATELY WITH THE
COMMISSION.**:
(A) Seller owns or possesses or otherwise has the right
to use all Intellectual Property and Documentation
necessary for the present conduct of the Business,
without any conflict with the rights of others; and
(B) no Actions are pending or, to the Knowledge of
Seller, threatened against Seller with respect to the
Intellectual Property or the Documentation.
(C) Except as set forth in Schedule 4.10(c) **THE
CONFIDENTIAL PORTION HAS BEEN SO OMITTED PURSUANT TO
A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS BEEN
FILED SEPARATELY WITH THE COMMISSION.**, there are no
licenses, sublicenses, assignments or co-existence
agreements currently in effect pertaining to any of
the Intellectual Property.
4.11 LITIGATION AND CLAIMS. There is no Action pending or, to the Knowledge
of Seller, threatened against or involving Seller either (a) arising
out of Seller's operation of the Business which, individually or in the
aggregate, if determined adversely to Seller could reasonably be
expected to result in Losses to Seller exceeding **THE CONFIDENTIAL
PORTION HAS BEEN SO OMITTED PURSUANT
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TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS BEEN FILED SEPARATELY
WITH THE COMMISSION.** or (b) which questions or challenges the
validity of this Agreement or any action to be taken pursuant to this
Agreement.
4.12 PERMITS. Except as set forth in Schedule 4.12, Seller possesses all
material licenses, permits and other approvals of Governmental Entities
necessary to enable it to carry on the Business as it is currently
conducted.
4.13 RECENT CONDUCT OF THE BUSINESS. Except as set forth in Schedule 4.13,
since June 30, 2001, Seller has not;
(a) permitted or allowed any of the Acquired Assets to be
subjected to any lien, mortgage, pledge, or other encumbrance,
other than Permitted Liens;
(b) sold, transferred, leased, or licensed any of the Acquired
Assets other than pursuant to the Contracts and otherwise in
the ordinary course of business;
(c) suffered any material physical damage, destruction or loss
(whether or not covered by insurance) relating to the Acquired
Assets;
(d) failed to perform in any material respect any of its
obligations, or suffered or permitted to exist and be
continuing, any material default, under any Contract;
(e) entered into, amended or terminated any material Contract,
knowingly waived any **THE CONFIDENTIAL PORTION HAS BEEN SO
OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND
HAS BEEN FILED SEPARATELY WITH THE COMMISSION.** right of
Seller or obligation of any third party to Seller under any
Contract or entered into any Contract other than on arm's
length basis;
(f) except in the ordinary course of business, incurred or assumed
any debt, obligation or liability;
(g) entered into or adopted or materially amended any employee
benefit plan or any employment or severance agreement, or
increased in any manner the compensation or fringe benefits of
any Continuing Employee (as defined in Section 6.10(a))
(except in the ordinary course of business and consistent with
past practice or pursuant to pre-existing agreements or as
required by law); or
(h) agreed to take any of the foregoing actions.
4.14 TAXES. Seller has filed all material Tax returns that it was required
to file with respect to the Acquired Assets. All such Tax Returns were
correct and complete in all material respects. All material Taxes owed
by Seller shown on any such Tax Returns have been paid. There are no
liens or security interests (other than Permitted Liens) on any of the
Acquired Assets that arose in connection with any failure (or alleged
failure) to pay any Tax.
4.15 TITLE TO TANGIBLE ASSETS. Seller has and will convey to Buyer at
Closing good and marketable title to all of the tangible Acquired
Assets free and clear of any lien or other encumbrance, except for
Permitted Liens and as set forth in Schedule 4.15; provided, however,
that in no event shall there exist any liens arising under Section 412
of the Code or Sections 302 or 4068 of ERISA.
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4.16 EMPLOYEE BENEFIT PLANS; ERISA. Schedule 4.16 sets forth each Seller
Plan. With respect to each Seller Plan, to the extent applicable,
except as would not be Material:
(a) each of the Seller Plans and its administration is and has
been in substantial compliance with its terms and all
applicable laws. Each of the Seller Plans which is intended to
be tax-qualified under Section 401(a) of the Code has been
determined by the IRS to be so qualified and such
determination has not been modified, revoked or limited, and,
to the Knowledge of the Seller, no circumstances have occurred
that would adversely affect the tax-qualified status of any
such Seller's Plan;
(b) to the Knowledge of Seller, there is no suit, action, dispute,
claim, arbitration or legal, administrative or other
proceeding or governmental investigation pending, or
threatened, alleging any breach of the terms of any such
Seller Plan or of any fiduciary duties thereunder or violation
of any applicable law with respect to any such Seller Plan;
and
(c) to the Knowledge of Seller, neither Seller, nor any "party in
interest" (as defined in Section 3(14) of ERISA) or any
"disqualified person" (as defined in Section 4975 of the Code)
with respect to any such Seller Plan, has engaged in a
non-exempt "prohibited transaction" within the meaning of
Section 4975 of the Code or Section 406 of ERISA.
4.17 EMPLOYMENT ARRANGEMENTS. Schedule 4.17 sets forth a list of all written
employment, noncompetition and confidentiality agreements with all full
or part time Continuing Employees. Seller has no legal obligation or
liability, contingent or other, under any employment arrangement,
including without limitation any retention bonus plan, with any such
employee other than (i) those listed on Schedule 4.16 or Schedule 4.17
or (ii) those incurred in the ordinary course of business which can be
terminated at will without the payment of severance. None of the
Continuing Employees is subject to any collective bargaining agreement
or labor contract with any union.
4.18 NO MATERIAL CHANGE. Since June 30, 2001, there has been no Material
change in the Acquired Assets (including, without limitation, physical
loss of or damage to a material amount or part of the Acquired Assets)
or the Business (including, without limitation, the operations,
management, properties or the condition (financial or other), or
results of operation of the Business).
4.19 ABSENCE OF CERTAIN CUSTOMER CHANGES. Except as set forth on Schedule
4.19 (which shall set forth for each customer listed thereon, the
amount of increase or decrease in their business), none of Seller's
customers whose business exceeded **THE CONFIDENTIAL PORTION HAS BEEN
SO OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE COMMISSION.** for the year ended
December 31, 2000, has, as of the date of this Agreement, terminated or
indicated in writing (or, to Seller's Knowledge, orally) an intention
to terminate its business with, or reduced or indicated in writing (or,
to the Knowledge of Seller, orally), an intention to reduce in any
material respect, the volume of its business with, Seller.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants that the following are true and correct
as of the date of this Agreement.
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5.01 ORGANIZATION AND GOOD STANDING. Buyer is a corporation duly organized,
validly existing, and in good standing under the laws of Delaware.
5.02 AUTHORITY. Buyer has all necessary corporate power and authority to
execute and deliver the Transaction Documents and to consummate the
transactions contemplated by the Transaction Documents. All corporate
actions and proceedings on the part of Buyer that are necessary to
approve and authorize the execution and delivery of the Transaction
Documents and the consummation of the transactions contemplated by the
Transaction Documents have occurred, and, assuming proper execution and
delivery by Seller, this Agreement is enforceable against Buyer in
accordance with its terms and the other Transaction Documents will be
enforceable against Buyer upon proper execution and delivery to Seller.
5.03 AUTHORIZATIONS. No Authorization is needed by Buyer for the execution,
delivery, or performance of this Agreement and the consummation of the
transactions contemplated by this Agreement, except as set forth in
Schedule 5.03 or where the failure to obtain such Authorization will
not have a material adverse effect on this Agreement or the
consummation of the transactions contemplated by this Agreement.
5.04 NO CONFLICTS. The execution, delivery and performance of the
Transaction Documents by Buyer and the consummation by Buyer of the
transactions contemplated by the Transaction Documents will not, with
or without the giving of notice or passage of time, or both, violate
any law, rule or regulation or order, judgment, or decree binding on
Buyer and will not result in a breach of any term of the certificate of
incorporation or bylaws or other organizational documents of Buyer or
result in a breach of, or constitute a default under, any contract,
agreement or other instrument to which Buyer is a party, except such
violations or breaches as will not have a material adverse effect on
the condition of Buyer, or the consummation of the transactions
contemplated by this Agreement.
5.05 FINDER'S FEES AND COMMISSIONS. Neither Buyer nor its Affiliates have
any liability or obligation to pay any fees or commissions to any
broker, finder or other agent with respect to the transactions
contemplated by this Agreement for which Seller could become liable or
obligated.
5.06 AVAILABLE FUNDS. Buyer has sufficient unrestricted, non-contingent
funds to enable it to deliver the Purchase Price in the manner required
and specified in Section 2.02.
5.07 LITIGATION AND CLAIMS. There is no Action pending or, to the Knowledge
of Buyer, threatened against or involving Buyer which questions or
challenges the validity of this Agreement or any action to be taken
pursuant to this Agreement, except as set forth in Schedule 5.07 and
such litigation as will not have a material adverse effect on this
Agreement or the consummation of the transactions contemplated by this
Agreement.
ARTICLE VI
COVENANTS
6.01 ADDITIONAL DOCUMENTS. From time to time after the Closing, Seller and
Buyer will execute and deliver, without further consideration, such
documents as either Party may reasonably request, in such form as may
be appropriate, if necessary or advisable in connection with the
consummation of the transactions contemplated by this Agreement.
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6.02 BULK TRANSFER LAWS. Buyer and Seller hereby waive compliance with the
bulk sales law, if any, and any other similar laws in any applicable
jurisdiction in respect of the transactions contemplated by this
Agreement.
6.03 CONFIDENTIALITY.
(a) Except to the extent contrary to the terms of this Section
6.03, the terms of the Confidentiality Agreement dated July
20, 2001 between Seller and Buyer (the "Confidentiality
Agreement"), including, without limitation, the
non-solicitation and non-hire obligations provisions of the
Confidentiality Agreement, are hereby incorporated by
reference and will continue in full force and effect in
accordance with the terms of the Confidentiality Agreement.
(b) Except as otherwise expressly permitted by this Agreement,
Seller and Buyer will not, and will cause their respective
Affiliates not to, disclose the terms of the Transaction
Documents to any Person other than such directors, officers,
shareholders, employees and attorneys of Seller, Buyer, their
respective Affiliates and their financial advisors, or such
other Persons acting on behalf of or in the interests of
Seller, Buyer and their respective Affiliates to whom
disclosure of the terms of this Agreement is necessary for the
consummation of the transactions contemplated by this
Agreement or the operation of the Business. Any disclosure
permitted by this Section 6.03(b) will be made on a
confidential basis.
(c) Notwithstanding anything to the contrary in this Agreement,
Seller, Buyer and their respective Affiliates may disclose the
terms of this Agreement to any Person, whether by providing
such Person with photocopies of all or portions of such terms
or otherwise: (i) to the extent required by applicable laws,
rules or regulations; (ii) as may be required, in the
reasonable opinion of Seller, Buyer, or their respective
Affiliates, as the case may be, in the defense of Seller,
Buyer, or their respective Affiliates in any Action; or (iii)
as may be legally required, in the reasonable opinion of
Seller's or Buyer's counsel, in any filings under the
Securities Act of 1933, the Securities Exchange Act of 1934 or
the Investment Advisers Act of 1940. The disclosing party will
use commercially reasonable efforts to obtain adequate
confidentiality protections in the event of such disclosures.
(d) Any press releases, public announcements or similar publicity
with respect to this Agreement or the transactions
contemplated by this Agreement must be approved by both Seller
and Buyer in advance, provided that such approval may not be
unreasonably withheld or delayed, and further provided that
nothing in this Agreement will prevent either Seller or Buyer
or their respective Affiliates, upon reasonable notice to the
other, from making public announcements to comply with the
requirements of law or any listing agreement with any
securities exchange or to inform their respective employees of
the transactions contemplated by this Agreement.
(e) As a result of the consummation and performance of this
Agreement, the Parties and their respective employees, agents,
contractors and representatives may learn information relating
to the businesses of the other Party or its Affiliates other
than the Business. Buyer and Seller acknowledge and agree that
all such information is Buyer's or Seller's, as applicable,
valuable trade secret information ("Confidential
Information"). Notwithstanding anything to the contrary herein
any trade secrets that are used in the Business but which do
not constitute Trade Secrets, shall be deemed to be
Confidential Information of Seller and shall be kept
confidential pursuant to this Section 6.03(e).
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Neither Buyer nor Seller will, nor will either of them cause
its Affiliates, officers, directors, employees, agents,
contractors and representatives to, disclose to any third
party or use in any manner Confidential Information other than
(i) with the other Party's prior written consent or (ii) to
the extent any such Confidential Information becomes generally
available to the public through no fault of the disclosing
party. Buyer and Seller will institute appropriate security
measures to safeguard the Confidential Information and prevent
its disclosure to any third party. Buyer or Seller, as the
case may be, will be responsible for any improper disclosure
or use of the Confidential Information by any of its
Affiliates, officers, directors, employees, agents,
contractors or representatives. The obligations of this
Section 6.03(e) will survive indefinitely. All information
provided by either Party hereto to the other Party hereto
pursuant to the Transitional Services Agreement, Data and
Software License and Services Agreement or ML Fixed Income
Output License shall be subject to the confidentiality
provisions contained in such agreements and, with respect to
such information, in the event of a conflict between the
provisions of the Transitional Services Agreement, Data and
Software License and Services Agreement or ML Fixed Income
Output License, as applicable, and this Agreement, the terms
of the Transitional Services Agreement, Data and Software
License and Services Agreement or ML Fixed Income Output
License, as applicable, shall govern.
6.04 TAX MATTERS.
(a) Buyer shall prepare and timely file all real property,
personal property and similar tax returns relating to the
Acquired Assets for the Straddle Period, as defined below.
Buyer shall pay and discharge all Taxes shown to be due on
such Tax returns. No later than 10 Business Days prior to the
due date of such return, Seller shall pay to Buyer the amount
of Taxes shown due which is attributable to the pre-Closing
portion of the Straddle Period. Seller shall have a reasonable
opportunity to review all such Tax returns. The Tax returns
referred to in the preceding sentences shall be prepared in a
manner consistent with past practice, unless a contrary
treatment is required by an intervening change in the
applicable law. Buyer shall cause a copy of any Tax return
that is required to be filed by it under the preceding
sentences, together with all relevant workpapers and other
information to the extent such return, workpapers and other
information relate solely to the Acquired Assets, to be made
available to Seller for review and approval no later than 20
Business Days prior to the due date for the filing of such Tax
return (taking into account proper extensions), such approval
not to be unreasonably withheld. An exact copy of any such Tax
return filed by Buyer and evidence of payment of such Taxes
shall be provided to Seller no later than 10 Business Days
after such Tax return is filed. For purposes of this section,
the amount of Taxes relating to the Acquired Assets
attributable to the pre-Closing portion of the Straddle Period
shall be determined by reference to the relative number of
days in the pre-Closing and post-Closing portions of such
Straddle Period. Any refunds or credits of real property,
personal property and similar taxes for any Straddle Period
shall be apportioned between Seller and Buyer in the same
manner as the liability for such Taxes is apportioned pursuant
to the preceding sentence.
(b) Seller and Buyer agree to furnish or cause to be furnished to
each other, upon request, as promptly as practicable, such
information and assistance (including access to books and
records) as is reasonably necessary for preparation of any Tax
related return, claim for refund or audit, and the prosecution
or defense of any Tax related claim, suit or proceeding with
respect to the Acquired Assets. The requesting party shall
bear all out-
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of-pocket costs and expenses incurred by the other party
hereto in providing such assistance.
(c) Buyer shall provide Seller with such resale exemption
certificates as are appropriate. Buyer (i) shall be
responsible for the filing of Tax returns (including any
documentation) with respect to all transfer, documentation,
sales, use, stamp, registration, and similar Taxes and (ii)
shall pay such Taxes and shall indemnify Seller for the
payment of such taxes, incurred in connection with this
Agreement or any transaction contemplated thereby.
(d) To the extent permitted by applicable law, the parties agree
that any indemnification payments (and/or payments or
adjustments) made with respect to this Agreement shall be
treated for all Tax purposes as adjustments to the Purchase
Price.
6.05 EFFORTS TO CLOSE.
(a) Seller and Buyer will use all commercially reasonable efforts
to cause all of the conditions, as specified in Articles VII
and VIII of this Agreement, to the obligations of the other to
consummate the transactions contemplated by this Agreement to
be met as soon as practicable after the date of this
Agreement.
(b) Seller and Buyer will comply fully with all applicable
mandatory notification, reporting and other requirements of
the HSR Act. Seller and Buyer, within ten Business Days after
the date of this Agreement, will file any required
notifications with the FTC and the Antitrust Division of the
DOJ pursuant to and in compliance with the HSR Act. Seller and
Buyer will as soon as practicable file any additional
information requested by any Governmental Entity.
(c) Seller and Buyer will each use commercially reasonable efforts
to obtain, as soon as practicable, the Authorizations that may
be or become necessary for the performance of its obligations
under this Agreement and the consummation of the transactions
contemplated by this Agreement and will cooperate fully with
each other in promptly seeking to obtain such Authorizations;
provided, however, that in no event shall Buyer's commercially
reasonable efforts be deemed to obligate Buyer to divest of
any assets.
(d) Seller shall use its commercially reasonable efforts to **THE
CONFIDENTIAL PORTION HAS BEEN SO OMITTED PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT AND HAS BEEN FILED SEPARATELY WITH
THE COMMISSION.**
6.06 EXPENSES. Except as otherwise expressly provided in this Agreement,
whether or not the transactions contemplated by this Agreement are
consummated, each of Seller and Buyer will bear its own costs and
expenses, including, without limitation, all fees and expenses of
agents, representatives, counsel and accountants.
6.07 OPERATION OF THE BUSINESS PRIOR TO CLOSING. From the date of this
Agreement until the Closing, and except as otherwise contemplated by
this Agreement or as otherwise agreed in writing by Buyer, Seller and
Seller's Affiliates will conduct the Business in the ordinary course
and consistent with Seller's past practice. Without limiting the
generality of the foregoing, without the prior written consent of
Buyer, Seller and Seller's Affiliates will:
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(a) not mortgage or otherwise encumber or subject to any lien
(other than Permitted Liens), or sell, transfer or otherwise
dispose of any of the Acquired Assets;
(b) continue to meet the contractual obligations of, and pay
obligations relating to, the Business as they mature in the
ordinary course;
(c) not settle any material pending or threatened legal action
which relates to the Acquired Assets or the Business;
(d) confer on a regular basis with one or more representatives of
Buyer to report material operational matters and the general
status of ongoing operations;
(e) not increase the compensation payable to any Continuing
Employee (except for increases in the ordinary course of
business consistent with past practice), or change the
benefits for which any such Continuing Employee is eligible
(except increases in the ordinary course of business
consistent with past practice), or grant any severance,
retention bonus or termination pay to, or enter into any
employment, retention bonus or severance agreement with, any
Continuing Employee other than as expressly contemplated by
this Agreement;
(f) not terminate or materially amend any Contract with the
exception of any termination carried out as a result of a
breach of such Contract by any other party thereto, any
termination carried out by any other party thereto and any
amendment carried out solely to reflect changes in the
ordinary course of business in the services provided by Seller
under any Contract; and
(g) use its commercially reasonable efforts to maintain the
existing business relations with suppliers, customers,
employees and other Persons with which it has Material
business relationships related to the Business.
6.08 REMOVAL OF ACQUIRED ASSETS. All tangible Acquired Assets will be moved
from Seller's premises in a manner so as to not unreasonably interfere
with Seller's operations and to minimize damage to such premises at
Buyer's expense in accordance with the Transitional Services Agreement.
6.09 TAX RECORDS. Buyer will preserve and keep all Books and Records
received from Seller or Seller's Affiliates relating to Tax matters of
the Business ("Tax Records") until the expiration of the appropriate
statutes of limitations with respect to such Tax matters, or seven
years after the date of this Agreement, whichever is longer. Until such
expiration, representatives of Seller or Seller's Affiliates will, upon
reasonable notice, have access to such Tax Records during normal
business hours to examine, inspect and copy them. After such
expiration, but prior to disposal, Buyer will inform Seller of its
intent to dispose of any Tax Records, and will provide Seller and
Seller's Affiliates with a reasonable opportunity to obtain such Tax
Records as they deem appropriate.
6.10 EMPLOYEE MATTERS.
(a) Buyer covenants and agrees that, as soon as practicable after
the date of this Agreement, it will extend offers of either
full-time or part-time employment (depending on the employment
status of each employee as of the date of this Agreement),
effective on the Closing Date, to each of the employees of the
Business listed on Schedule 6.10 (such
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employees being collectively referred to as the "Continuing
Employees") at substantially the same job function as such
employees held with Seller on the date of this Agreement, at
the annual base salary listed opposite each such Continuing
Employee's name on Schedule 6.10. Buyer agrees to provide the
Continuing Employees with substantially the same benefit plans
and arrangements, in the aggregate, as provided by Buyer to
similarly situated employees of Buyer on the Closing Date,
insofar as such plans and arrangements are consistent with
applicable law; provided, that Buyer shall have no obligation
to establish or maintain any particular plan or arrangement,
except that Buyer shall cause a tax-qualified defined
contribution plan maintained by Buyer or one of its Affiliates
to accept rollovers of amounts, including outstanding loans to
employees rolling over such amounts, distributed from
Continuing Employee's accounts under the Xxxxxxx Xxxxx & Co.,
Inc. 401(k) Savings and Investment Plan, so long as such
rollovers occur no later than 90 days following the Closing
Date. Buyer agrees that it shall be solely liable for all
costs relating to the employment (including the termination of
such employment) of Continuing Employees after the Effective
Time, provided, that nothing in this Section 6.10(a) shall be
construed to impose liability on Buyer for any costs arising
from any Continuing Employee's employment with Seller prior to
the Effective Time.
(b) Effective as of the Effective Time, Buyer agrees that it shall
be liable for all benefits payable under all employee benefit
plans maintained by Buyer for the benefit of the Continuing
Employees and for Buyer's workers' compensation obligations
with respect to the Continuing Employees. Continuing Employees
(and their eligible dependents) shall be given credit under
the employee benefit plans, programs, policies and
arrangements that are maintained by Buyer or its Affiliates
for the benefit of the Continuing Employees for their service
with Seller and its Affiliates prior to the Effective Time for
purposes of (i) eligibility to participate and vesting and
(ii) satisfying any waiting periods, evidence of insurability
requirements. Buyer shall cause any preexisting condition
limitations under its or its Affiliates welfare plans which
may cover Continuing Employees, to be waived.
6.11 COLLECTION OF ACCOUNTS RECEIVABLE AND REMITTANCE OF PAYMENTS RECEIVED.
(a) Seller shall send invoices to all customers of the Business
for services performed during the calendar month in which the
Closing occurs under the Contracts to which those customers
are party. In accordance with its past practice, Seller shall
send such invoices to the customers within 60 days after the
end of the calendar month in which the Closing occurs. Seller
shall remit to Buyer promptly, and in any event within 10
Business Days thereafter, all payments received by Seller in
respect of such customer invoices for Services performed from
and after the Closing Date through the end of the calendar
month in which the Closing occurs. The amount of payments due
to Buyer will be computed, with respect to each customer
invoice, by multiplying (a) the quotient obtained by dividing
the aggregate amount of the invoice by the number of Business
Days in the month in which the Closing occurs by (b) the
number of Business Days from and including the Closing Date
through the last day of the month in the month in which the
Closing occurs. Seller shall be entitled to all payments
received in respect of the balance of the invoice.
(b) If, after the Effective Time, Buyer receives a payment from a
customer and at the time of such payment is not instructed by
the customer as to the purpose for which the payment is to be
applied (each, a "Non-designated Payment"), then Buyer shall
contact such customer and ascertain from such customer the
purpose for which the payment is to be
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applied. In the event that such payment relates to payment for
services provided prior to the Effective Time, Buyer shall
promptly remit such payment to Seller.(3)
(c) In the event that Seller receives any payment or proceeds
relating to or arising out of any of the Acquired Assets
subsequent to the Effective Time, Seller shall promptly remit
such payment or proceeds to Buyer. In the event that Buyer
receives any payment or proceeds relating to or arising out of
the Excluded Assets subsequent to the Effective Time, Buyer
shall promptly remit such payment to Seller.
6.12 ACCESS TO BOOKS AND RECORDS. Seller shall afford Buyer and its
representatives reasonable access during normal business hours (i) for
a period of three (3) years following the Closing Date, upon no less
than three (3) Business Days' notice, to any Books and Records or other
records relating to or used primarily in connection with the Acquired
Assets or the Assumed Liabilities that are not segregable from the
Books and Records of Seller that do not relate to the Acquired Assets
or the Assumed Liabilities to the extent that such access may be
reasonably required by Buyer for any reasonable business purpose, and
(ii) for a period of five (5) years following the Closing Date, upon
twenty four (24) hours notice, to any customer records, any record of
written communications with any customers, any pricing data (including
any work papers which support Seller's pricing) and any other customer
or price related documentation, in each case relating to the Acquired
Assets or the Assumed Liabilities, that Buyer shall reasonably request
access to in order to comply with the express requirements of
applicable regulatory authorities. Seller agrees not to destroy any
Books and Records or other information for a period of five (5) years
after such Books and Records or other information was created.
6.13 CUSTOMER NOTIFICATION. Promptly following the execution of this
Agreement, Seller or Buyer shall send notice (a "Customer
Notification"), the form, substance, timing and coordination of which
shall be reasonably satisfactory to Buyer and Seller, to each customer
which has a Contract with Seller notifying each such customer (i) that
Seller intends to assign such customer's Contract with Seller to Buyer,
(ii) that such customer may elect to terminate its Contract with Seller
rather than consent to the assignment of such Contract to Buyer, (iii)
that such customer shall be deemed to have consented to such assignment
if such customer does not, within **THE CONFIDENTIAL PORTION HAS BEEN
SO OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE COMMISSION.**, send notice of its intent
to terminate the Contract and (iv) that its Contract with Seller (or,
if such customer consents to the assignment, with Buyer) shall be
amended to provide that the Contract cannot be further assigned without
the consent of such customer.
6.14 NOTICE OF DEVELOPMENTS. Each Party shall give prompt notice to the
other of the occurrence or non-occurrence of any event the occurrence
or non-occurrence of which would be likely to cause (i) any
representation or warranty made by it contained in this Agreement to be
untrue or inaccurate, or (ii) any failure of Seller or Buyer, as the
case may be, to comply with or satisfy, or be able to comply with or
satisfy, any material covenant, condition or agreement to be complied
with or satisfied by it hereunder. No disclosure by a Party pursuant to
this Section 6.14 shall constitute a waiver by the Party receiving such
disclosure of any condition to such Party's obligation to close the
transaction contemplated hereby unless the Party to which such
disclosure is made agrees in writing to waive such condition (it being
understood that the delivery of any notice pursuant to this Section
6.14 shall not limit or otherwise affect the remedies available
hereunder to the Party receiving such notice).
3 Amended on January 31, 2002.
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6.15 DELIVERY OF ACQUIRED ASSETS AFTER THE EFFECTIVE TIME. In the event
that, after the Effective Time, Seller becomes aware of (A) any asset
that (i) is necessary to operate the Business; (ii) was not included in
the definition of Acquired Assets or was not delivered to Buyer on the
Closing Date, (iii) is wholly owned by Seller, and (iv) is **THE
CONFIDENTIAL PORTION HAS BEEN SO OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND HAS BEEN FILED SEPARATELY WITH THE
COMMISSION.** or (B) any contract with a customer of the Business that
was inadvertently omitted from Schedule 1.14, then Seller and Buyer and
shall cooperate with each other in order to effectuate the transfer of
such asset or contract to Buyer; provided, that Buyer shall have no
obligation to pay any additional consideration in connection with such
transfer.
6.16 NON-COMPETE.
(a) Restrictive Covenants. Seller covenants and agrees that Seller
shall not, and shall cause its Affiliates not to, during the
period beginning on the Closing Date and ending on **THE
CONFIDENTIAL PORTION HAS BEEN SO OMITTED PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT AND HAS BEEN FILED SEPARATELY WITH
THE COMMISSION.** (the "Restricted Period"), operate, for its
own account or its Affiliates' own accounts, the business of
**THE CONFIDENTIAL PORTION HAS BEEN SO OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT AND HAS BEEN FILED
SEPARATELY WITH THE COMMISSION.** (the "Restricted Business");
provided, however, that nothing contained in this Agreement
shall be deemed to prohibit, restrict or otherwise limit
Seller or any of its Affiliates from hereafter engaging in a
strategic transaction (including, without limitation, a joint
venture, acquisition, merger, consolidation, reorganization or
asset sale) with any Person, so long as such Person did not
derive **THE CONFIDENTIAL PORTION HAS BEEN SO OMITTED PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS BEEN FILED
SEPARATELY WITH THE COMMISSION.** of its revenues from the
Restricted Business during the twelve month period prior to
such strategic transaction.
(b) Rights and Remedies Upon Breach. If Seller or any of its
Affiliates breaches, or threatens to commit a breach of, any
of the provisions of Section 6.16(a) (the "Restrictive
Covenants"), Buyer shall have the right and remedy (upon
compliance with any necessary prerequisites imposed by law
upon the availability of such remedy) to have the Restrictive
Covenants specifically enforced (without posting any bond) by
any court having equity jurisdiction, including, without
limitation, the right to an entry against Seller or such
Affiliate of restraining orders and injunctions (preliminary,
mandatory, temporary and permanent) against violations,
threatened or actual, and whether or not then continuing, of
such covenants, it being acknowledged and agreed that any such
breach or threatened breach will cause irreparable injury to
Buyer and that money damages will not provide adequate remedy
to Buyer. This remedy shall be in addition to, and not in lieu
of, any other rights and remedies available to Buyer under law
or in equity.
(c) Severability of Covenants. If any court determines that any of
the Restrictive Covenants, or any part thereof, is invalid or
unenforceable, the remainder of the Restrictive Covenants
shall not thereby be affected and shall be given full effect,
without regard to the invalid portions.
(d) Blue-Pencilling. If any court determines that any of the
Restrictive Covenants, or any part thereof, is unenforceable
because of the duration of such provision or the area covered
thereby, such court shall have the power to reduce the
duration or area of such
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provisions and, in its reduced form, such provision shall then
be enforceable and shall be enforced.
6.17 CONFIDENTIALITY AGREEMENTS. Seller agrees that it shall not waive any
of its rights under any confidentiality agreement entered into by
Seller with any other potential buyer of the Business without the prior
written consent of Buyer, which consent shall not be unreasonably
withheld.
6.18 SELLER INVOICED CONTRACTS. Buyer agrees that it shall send all invoices
relating to the contracts listed on Schedule 6.18 to Seller (an at
address designated for such purpose by Seller) for payment in
accordance with the terms of such contracts.
6.19 REGULATION S-X FINANCIAL STATEMENTS. If Buyer's parent, Interactive
Data Corporation ("IDCO"), **THE CONFIDENTIAL PORTION HAS BEEN SO
OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS BEEN
FILED SEPARATELY WITH THE COMMISSION.** under Regulation S-X under the
Securities Act of 1933, as amended (the "1933 Act") and the applicable
published rules and regulations thereunder, to include historical
financial statements for the Business in any filing under the 1933 Act
or the Securities Exchange Act of 1934, as amended, then Buyer shall
notify Seller in writing of this requirement at least 60 days prior to
the anticipated date of the filing. Following receipt of such notice,
Seller shall prepare statements of assets acquired and liabilities
assumed and statements of revenues and direct expenses and such other
financial statements and information as may be required by the
Securities and Exchange Commission for the required historical periods
for inclusion in the filing, and Seller shall request its independent
accountants to audit those statements and otherwise to cooperate with
IDCO in connection with the foregoing (including, without limitation,
requesting its independent accountants to deliver so-called "comfort
letters" and written consents relating to the audited statements and
other financial information derived from them). If, for any reason,
Seller's accountants decline or are unable to audit the necessary
financial statements, Seller shall cooperate with Buyer's independent
accountants in connection with the audit of those financial statements.
Buyer shall reimburse Seller for its out-of-pocket expenses incurred in
connection with its compliance with this Section 6.19.
ARTICLE VII
CONDITIONS TO SELLER'S OBLIGATION TO CLOSE
All obligations of Seller to sell the Acquired Assets, to transfer the Business,
and to perform any other action at the Closing are subject to the fulfillment,
prior to or at the Closing, of each of the following conditions, any of which
may be waived by Seller in whole or in part without written or oral notice of
such waiver to Buyer, but without prejudice to any right or remedy which Seller
may have under this Agreement as the result of any misrepresentation by Buyer,
or breach of any agreement, covenant or warranty of Buyer contained in this
Agreement by Buyer.
7.01 BUYER'S REPRESENTATIONS AND WARRANTIES TRUE. All representations and
warranties of Buyer contained in this Agreement will be true and
correct in all material respects as of the Closing with the same force
and effect as if made on and as of such date, except (x) for
representations and warranties, qualified by materiality or by the term
"Material" (in which case such representations and warranties shall be
true and correct in all respects) and (y) to the extent such
representations and warranties expressly speak as of an earlier date
(in which case such representations and warranties shall be true and
correct in all respects, or in all material respects, as the case may
be, as of such earlier date).
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7.02 PERFORMANCE OF BUYER'S OBLIGATIONS. All commitments required by this
Agreement to be performed by Buyer prior to Closing will have been
performed in all material respects by Buyer, and Buyer will have
delivered to Seller at the Closing the Purchase Price and the documents
required in Sections 3.01(b) and (c).
7.03 AUTHORIZATIONS/WAITING PERIODS. All Authorizations legally required for
the Closing will have been obtained, except where failure to obtain
such Authorizations will not have a material adverse effect on this
Agreement or the consummation of the transactions contemplated by this
Agreement.
7.04 NO INJUNCTION/ORDER. On the Closing Date, (i) there will not be any
investigation suit, action, or other proceeding threatened or pending
by or before any court or Governmental Entity, in which it is sought to
restrain or prohibit or to obtain damages or other relief in connection
with this Agreement or the consummation of the transactions
contemplated by this Agreement and (ii) no Governmental Entity shall
have issued any order, decree or ruling enjoining, prohibiting or
granting damages or other relief in connection with the consummation of
the transactions contemplated by this Agreement.
7.05 LAPSE OF CUSTOMER NOTIFICATION PERIOD. At least **THE CONFIDENTIAL
PORTION HAS BEEN SO OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT AND HAS BEEN FILED SEPARATELY WITH THE COMMISSION.** shall
have elapsed since the Customer Notifications were sent in accordance
with Section 6.13.
ARTICLE VIII
CONDITIONS TO BUYER'S OBLIGATION TO CLOSE
All obligations of Buyer to purchase the Acquired Assets, to assume the Assumed
Liabilities, and to perform any other action at the Closing are subject to the
fulfillment, prior to or at the Closing, of each of the following conditions,
any of which may be waived by Buyer in whole or in part without written or oral
notice of such waiver to Seller, but without prejudice to any right or remedy
which Buyer may have under this Agreement as the result of any misrepresentation
by Seller, or breach of any agreement, covenant or warranty of Seller contained
in this Agreement by Seller.
8.01 SELLER'S REPRESENTATIONS AND WARRANTIES TRUE. All representations and
warranties of Seller contained in this Agreement will be true and
correct in all material respects as of the Closing with the same force
and effect as if made on and as of such date, except (x) for
representations and warranties, qualified by materiality or by the term
"Material" (in which case such representations and warranties shall be
true and correct in all respects) and (y) to the extent such
representations and warranties expressly speak as of an earlier date
(in which case such representations and warranties shall be true and
correct in all respects, or in all material respects, as the case may
be, as of such earlier date).
8.02 PERFORMANCE OF SELLER'S OBLIGATIONS. All commitments required by this
Agreement to be performed by Seller prior to Closing will have been
performed in all material respects by Seller and Seller will have
delivered at the Closing the documents required by Sections 3.01(a) and
(c).
8.03 AUTHORIZATIONS/WAITING PERIODS. All Authorizations legally required for
the Closing will have been obtained, except where failure to obtain
such Authorizations will not have a material adverse effect on this
Agreement or the consummation of the transactions contemplated by this
Agreement.
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8.04 NO INJUNCTION/ORDER. On the Closing Date, (i) there will not be any
investigation, suit, action, or other proceeding threatened or pending
by or before any court or Governmental Entity, in which it is sought to
restrain or prohibit or to obtain damages or other relief in connection
with this Agreement or the consummation of the transactions
contemplated by this Agreement and (ii) no Governmental Entity shall
have issued any order, decree or ruling enjoining, prohibiting or
granting damages or other relief in connection with the consummation of
the transactions contemplated by this Agreement.
8.05 LAPSE OF CUSTOMER NOTIFICATION PERIOD. At least **THE CONFIDENTIAL
PORTION HAS BEEN SO OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT AND HAS BEEN FILED SEPARATELY WITH THE COMMISSION.** shall
have elapsed since the Customer Notifications were sent in accordance
with Section 6.13.
ARTICLE IX
INDEMNIFICATION AND ARBITRATION
9.01 SURVIVAL OF REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS. All
representations, warranties, covenants and agreements contained in this
Agreement shall survive the execution and delivery of this Agreement
and the Closing. All such representations and warranties shall
thereafter terminate and expire on **THE CONFIDENTIAL PORTION HAS BEEN
SO OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS
BEEN FILED SEPARATELY WITH THE COMMISSION.** except that the
representations and warranties as to title contained in Section 4.15
and the representations and warranties contained in Sections 4.01,
4.02, 4.14, 4.16, 5.01 and 5.02 shall survive and remain operative and
in full force and effect for **THE CONFIDENTIAL PORTION HAS BEEN SO
OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS BEEN
FILED SEPARATELY WITH THE COMMISSION.** and the representations and
warranties as to title contained in Section 4.10 shall survive until
**THE CONFIDENTIAL PORTION HAS BEEN SO OMITTED PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT AND HAS BEEN FILED SEPARATELY WITH THE
COMMISSION.**, in all events regardless of any investigation made by or
on behalf of any Party hereto. All covenants and agreements of the
Parties shall survive the Closing (unless any such covenant or
agreement by its express terms in this Agreement does not so survive)
and are subject to all applicable statutes of limitation, similar
statutes and other similar defenses provided by law or equity, it being
understood that the Parties' obligations to indemnify with respect to
Excluded Liabilities and Assumed Liabilities will survive for the
statute of limitations applicable to such liability.
9.02 INDEMNIFICATION BY SELLER.
(a) Subject to the terms, conditions, and limitations set forth in
this Agreement, Seller agrees from and after the Closing to
defend, indemnify and hold harmless Buyer (and its directors,
officers, employees, Affiliates and shareholders) from and
against all losses, liabilities, damages, costs, claims,
obligations and expense (including, without limitation,
reasonable fees and expenses of attorneys and accountants)
("Losses") actually incurred by Buyer or any of such other
indemnified parties to the extent arising from (i) any breach
of any representation or warranty made by Seller in this
Agreement, the Assumption Agreement and Xxxx of Sale, the
copyright assignment to be delivered pursuant to Section
3.01(a)(i) hereof or the certificate to be delivered pursuant
to Section 3.01(a)(iii) hereof, (ii) any breach of any
covenant made by Seller in this Agreement, the Assumption
Agreement and Xxxx of Sale or the copyright assignment to be
delivered
-24-
pursuant to Section 3.01(a)(i) hereof, or (iii) any failure of
Seller to perform or satisfy any Excluded Liability.
(b) Promptly after receipt by Buyer of notice of any third-party
Action in respect of which indemnity may be sought against
Seller under this Agreement (for purposes of this Section
9.02, a "Buyer's Assertion"), Buyer will notify Seller in
writing of the Buyer's Assertion, but the failure to so notify
Seller will not relieve Seller of any liability it may have to
Buyer, except to the extent Seller suffered actual prejudice
thereby. Seller will be entitled to participate in the defense
of such Buyer's Assertion. If Seller, by written notice to
Buyer within 30 days after receipt by Seller of notice of such
Buyer's Assertion, acknowledges its responsibility to
indemnify Buyer based on the facts alleged in the third party
Action and the Buyer's Assertion and if Seller elects to do
so, Seller will also be entitled to assume the defense of such
Buyer's Assertion, at its own expense, with counsel chosen by
it which will be reasonably satisfactory to Buyer. With
respect to any such Buyer's Assertion, Buyer will promptly
provide Seller with: (i) notice and copies of any documents
served upon Buyer; and (ii) all reasonable cooperation which
Seller deems necessary to defend such Buyer's Assertion,
including without limitation providing Seller and its outside
attorneys access to any potentially relevant documents,
information, or individuals within the control of Buyer, other
than any privileged documents. If business information of
Buyer other than that pertaining to the Business is contained
in such documents or information, Seller and Buyer will enter
into appropriate secrecy commitments to protect such documents
or information. Notwithstanding that Seller may have elected
as provided above to assume the defense of any Buyer's
Assertion, Buyer will have the right to participate in the
investigation and defense thereof, with separate counsel
chosen by Buyer, but in such event the fees and expenses of
Buyer (above those which would otherwise have been incurred)
and such separate counsel will be paid by Buyer.
(c) Notwithstanding anything in this Section 9.02 to the contrary:
(i) Seller will have no obligation with respect to any Buyer's
Assertion if, in connection therewith, Buyer, without the
written consent of Seller, settles or compromises any Action
or consents to the entry of any judgment; and (ii) Seller will
not, without the written consent of Buyer with respect to any
Buyer's Assertion: (A) settle or compromise any Action or
consent to the entry of any judgment which does not include as
an unconditional term thereof the delivery by the claimant or
plaintiff to Buyer of a duly executed written release of Buyer
from all liability in respect of such Action, which release
will be reasonably satisfactory in form and substance to
counsel for Buyer; or (B) settle or compromise any Action in
any manner that, in the reasonable judgment of Buyer or its
counsel, may materially adversely affect Buyer, it being
acknowledged and agreed that any settlement or compromise
pursuant to which the sole relief is monetary damages that are
paid in full by Seller will not be deemed to materially
adversely affect Buyer.
(d) Upon the payment of any settlement or judgment pursuant to
this Section 9.02 with respect to any Buyer's Assertion,
Seller will be subrogated to all rights and remedies of Buyer
against any third party in respect of such Buyer's Assertion
to the extent of the amount so paid by Seller.
(e) Except in the event of fraud, the indemnity provided for by
this Section 9.02 will be Buyer's exclusive post-Closing
remedy with respect to matters covered hereby.
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9.03 INDEMNIFICATION BY BUYER.
(a) Subject to the terms, conditions, and limitations set forth in
this Agreement, Buyer agrees from and after the Closing to
defend, indemnify and hold harmless Seller (and its directors,
officers, employees, Affiliates and shareholders) from and
against all Losses actually incurred by Seller or any of such
other indemnified parties to the extent arising from (i) any
breach of any representation or warranty made by Buyer in this
Agreement, the Assumption Agreement and Xxxx of Sale or the
certificate to be delivered pursuant to Section 3.01(b)(i)
hereof, (ii) any breach of any covenant made by Buyer in this
Agreement or the Assumption Agreement and Xxxx of Sale, or
(iii) any failure of Buyer to perform or satisfy any Assumed
Liability.
(b) Promptly after receipt by Seller or its Affiliates of notice
of any third-party Action in respect of which indemnity may be
sought against Buyer under this Agreement (for purposes of
this Section 9.03 a "Seller's Assertion"), Seller will notify
Buyer in writing of the Seller's Assertion, but failure to so
notify Buyer will not relieve Buyer of any liability it may
have to Seller, except to the extent Buyer has suffered actual
prejudice thereby. Buyer will be entitled to participate in
the defense of such Seller's Assertion. If Buyer, by written
notice to Seller within 30 days after receipt by Buyer of
notice of such Seller's Assertion, acknowledges its
responsibility to indemnify Seller based on the facts alleged
in the third-party Action and the Seller's Assertion and if
Buyer elects to do so, Buyer will also be entitled to assume
the defense of such Seller's Assertion, at its own expense,
with counsel chosen by it which will be reasonably
satisfactory to Seller. With respect to any such Seller's
Assertion, Seller will promptly provide Buyer with: (i) notice
and copies of any documents served upon Seller; and (ii) all
reasonable cooperation which Buyer deems necessary to defend
such Seller's Assertion, including without limitation
providing Buyer and its outside attorneys' access to any
potentially relevant documents, information, or individuals
within the control of Seller, other than any privileged
documents. If business information of Seller other than that
pertaining to the Business is contained in such documents or
information, Seller and Buyer will enter into appropriate
secrecy commitments to protect such documents or information.
Notwithstanding that Buyer may have elected as provided above
to assume the defense of any Seller's Assertion, Seller will
have the right to participate in the investigation and defense
thereof, with separate counsel chosen by Seller, but in such
event the fees and expenses of Seller (above those which would
otherwise have been incurred) and such separate counsel will
be paid by Seller.
(c) Notwithstanding anything in this Section 9.03 to the contrary:
(i) Buyer will have no obligation with respect to any Seller's
Assertion if, in connection therewith, Seller, without the
written consent of Buyer, settles or compromises any Action or
consents to the entry of any judgment; and (ii) Buyer will
not, without the written consent of Seller with respect to any
Seller's Assertion: (A) settle or compromise any Action or
consent to the entry of any judgment which does not include as
an unconditional term thereof the delivery by the claimant or
plaintiff to Seller of a duly executed written release of
Seller from all liability in respect of such Action, which
release will be reasonably satisfactory in form and substance
to counsel for Seller; or (B) settle or compromise any Action
in any manner that, in the reasonable judgment of Seller or
its counsel, may materially adversely affect Seller, it being
acknowledged and agreed that any settlement or compromise
pursuant to which the sole relief is monetary damages that are
paid in full by Buyer will also be deemed to materially
adversely affect Seller.
-26-
(d) Upon the payment of any settlement or judgment pursuant to
this Section 9.03 with respect to any Seller's Assertion,
Buyer will be subrogated to all rights and remedies of Seller
and its Affiliates against any third party in respect of such
Seller's Assertion to the extent of the amount so paid by
Buyer.
(e) Except in the case of fraud, the indemnity provided for by
this Section 9.03 will be Seller's exclusive post-Closing
remedy with respect to matters covered hereby.
9.04 DISPUTE RESOLUTION.
(a) Except with respect to disputes, controversies or claims
arising under the Transitional Services Agreement, the Data
and Software License and Services Agreement, ML Fixed Income
Output License and Section 6.16 of this Agreement, any
dispute, controversy or claim asserted by Seller against Buyer
or by Buyer against Seller (a "Claim") arising out of or
related to the Transaction Documents, including without
limitation any Claim for indemnification pursuant to Article
IX of this Agreement or any issue as to whether or not a Claim
is arbitrable, will be resolved pursuant to the procedures
described in this Section 9.04.
(b) Should any Claim arise, Seller and Buyer will first attempt to
resolve such Claim by entering into good faith negotiations by
or among their appropriate employees or officers. Such
negotiations will commence as soon as practicable after Seller
or Buyer, as applicable, has received notice of such Claim,
but no later than ten days after such receipt, and will
terminate no later than 20 calendar days after such
commencement. During such negotiations, Seller and Buyer will
not have the right to any "discovery" unless both Seller and
Buyer agree otherwise.
(c) Any Claim which has not been resolved pursuant to Section
9.04(b) of this Agreement will be referred to good faith
negotiations by or among one or more Managing Directors of
Seller and executive officers of Buyer. Such negotiations will
commence as soon as practicable after termination of the
negotiations described in Section 9.04(b), but not later than
ten Business Days thereafter, and will terminate no later than
10 calendar days after such commencement. During such
negotiations Seller and Buyer will not have the right to any
discovery unless both Seller and Buyer agree otherwise.
(d) Any Claim which has not been resolved pursuant to Section
9.04(c) of this Agreement will be finally resolved by a
self-administered arbitration initiated by service on the
other party of an arbitration Statement of Claim. The
arbitration will be conducted by three arbitrators, one of
whom will be appointed by Seller, one of whom will be
appointed by Buyer, and the third of whom will be chosen by
the first two arbitrators. No ex parte communications will
occur with party-appointed arbitrators after the selection of
the third arbitrator. The arbitration will be held in a
mutually agreed location in New York City and will be
conducted in accordance with the Comprehensive Arbitration
Rules and Procedures of JAMS, as then in effect (the "JAMS
Rules"), except that the rules set forth in this Section
9.04(d) will govern such arbitration to the extent they
conflict with the JAMS Rules. Costs of the arbitration will be
shared equally by Seller and Buyer, except that Seller and
Buyer will each pay its own arbitrator, attorneys,
accountants, consultants, and other experts and witnesses.
Seller and Buyer will use commercially reasonable efforts to
cause the arbitration to be conducted in an expeditious manner
and to be completed within 60 days after selection of the
third arbitrator. The Claim will be determined in accordance
with New York law, except to the extent that it conflicts with
-27-
the JAMS Rules and the provisions of this Section 9.04(d).
There will be no discovery save for document production except
as the arbitrators permit following a determination by the
arbitrators that the Person seeking such discovery has a
substantial demonstrable need. All other procedural matters
will be within the discretion of the arbitrators. The
determination of the arbitrators shall be reflected in a
writing not to exceed ten pages and will be final and binding
on Seller and Buyer with the exception of such review as is
expressly authorized by the provisions of the Federal
Arbitration Act. Judgment upon the award rendered by the
arbitrators may be entered in any court having jurisdiction of
such award. No multiple or punitive damages may be awarded by
either the arbitrators or the reviewing court.
9.05 LIMITATIONS.
(a) Seller and Buyer will not be permitted to recover from the
other any consequential, indirect, or punitive damages arising
out of or related to this Agreement **THE CONFIDENTIAL PORTION
HAS BEEN SO OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT AND HAS BEEN FILED SEPARATELY WITH THE
COMMISSION.**. For the avoidance of doubt, Seller and Buyer
agree that this Section 9.05(a) is not intended to contradict
any agreements relating to indemnification and limitations
thereon set forth in the other Transaction Documents. Any such
provisions in the other Transaction Documents shall govern and
control with regard to the matters contemplated by them.
(b) The indemnification provided for in Section 9.02(a) shall be
subject to the following terms and limitations:
(i) Seller shall not be obligated to pay an aggregate
amount for indemnification under Section 9.02(a)(i)
in excess of **THE CONFIDENTIAL PORTION HAS BEEN SO
OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT AND HAS BEEN FILED SEPARATELY WITH THE
COMMISSION.**.
(ii) Seller shall be obligated to pay any and all amounts
for indemnification under Subsections 9.02(a)(ii) and
(iii) in full without regard to the limit established
by Subsection 9.05(b)(i).
(c) The indemnification provided for in Section 9.03(a) shall be
subject to the following terms and limitations:
(i) Buyer shall not be obligated to pay any amounts for
indemnification under Section 9.03(a)(i) until the
aggregate Losses actually incurred by Seller exceed
**THE CONFIDENTIAL PORTION HAS BEEN SO OMITTED
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND
HAS BEEN FILED SEPARATELY WITH THE COMMISSION.** (the
"Buyer Basket"), whereupon Buyer shall be obligated
to pay all amounts of Losses actually incurred by
Seller under Section 9.03(a)(i) in excess of the
Buyer Basket, subject to the limits set forth in
clauses (ii) and (iii) below.
(ii) Buyer shall not be obligated to pay an aggregate
amount for indemnification under Section 9.03(a)(i)
in excess of **THE CONFIDENTIAL PORTION HAS BEEN SO
OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT AND HAS BEEN FILED SEPARATELY WITH THE
COMMISSION.**.
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(iii) Buyer shall be obligated to pay any and all amounts
for indemnification under Subsections 9.03(a)(ii) and
(iii) in full without regard to the Buyer Basket or
the limit established by Subsection 9.05(c)(ii).
(d) In the event any Buyer's Assertion, Seller's Assertion or
Claim hereunder results in a Tax benefit or is an insured loss
to the indemnified Party, the indemnifying Party will be
entitled to a credit against any liability thereunder in the
amount by which any Taxes of the indemnified Party are reduced
by reason of any deduction or adjustment allowed the
indemnified Party for any payment, settlement or satisfaction
of such claim, as well as in the amount of and to the extent
of any insurance proceeds that the indemnified party recovers.
The indemnified party shall use commercially reasonably
efforts to recover Losses under insurance policies and to
avail itself of Tax benefits arising from any Losses.
9.06 TERMINATION OF INDEMNIFICATION. The obligation to indemnify a Person
pursuant to Sections 9.02(a)(i) and 9.03(a)(i) will terminate when the
applicable representation or warranty terminates pursuant to Section
9.01; provided, however, that such indemnification obligation will not
terminate with respect to any item as to which the Person to be
indemnified will have, prior to the expiration of the applicable
period, previously delivered written notice (stating in reasonable
detail the nature of, and factual and legal basis for, any Claim, and
the provisions of this Agreement on which such Claim is made) to the
other Party.
ARTICLE X
TERMINATION
10.01 TERMINATION. This Agreement may be terminated at any time prior to the
Closing as follows:
(a) by mutual written consent of Seller and Buyer;
(b) by either Seller or Buyer if the Closing has not occurred by
February 15, 2002, provided that the terminating Person is not
then in default under this Agreement; and
(c) by either Seller or Buyer if any Governmental Entity has
issued a final, non-appealable order, decree or ruling
permanently enjoining or prohibiting the consummation of the
transactions contemplated by this Agreement.
10.02 PROCEDURE AND EFFECT OF TERMINATION. In the event of termination of
this Agreement and the transactions contemplated by this Agreement
pursuant to Section 10.01 of this Agreement, written notice of such
termination will promptly be given to all appropriate entities and this
Agreement will terminate and the transactions contemplated by this
Agreement will be abandoned, without further action by Seller or Buyer,
and without additional liability on the part of any of them or their
Affiliates, directors, officers, shareholders, employees, contractors
or agents, except for Sections 6.03, 6.06 and 10.02 and Article IX and
any definitions pertaining thereto, which sections and definitions will
continue to bind the Parties as necessary to effectuate their purpose.
Nothing contained in this Section 10.02 will release any of Seller or
Buyer from liability for any breach of this Agreement prior to its
termination.
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ARTICLE XI
MISCELLANEOUS
11.01 AMENDMENT AND MODIFICATION. The Transaction Documents may be amended,
modified, or supplemented only by the written agreement of Seller and
Buyer.
11.02 WAIVER OF COMPLIANCE. Except as otherwise provided in the Transaction
Documents, the failure by any Person to comply with any obligation,
covenant, agreement or condition under such agreements may be waived by
the Person entitled to the benefit thereof only by a written instrument
signed by the Person granting such waiver, but such waiver or failure
to insist upon strict compliance with such obligation, covenant,
agreement or condition will not operate as a waiver of, or estoppel
with respect to, any subsequent or other failure. The failure of any
Person to enforce at any time any of the provisions of such agreements
will in no way be construed to be a waiver of any such provision, nor
any way to affect the validity of such agreements or any part thereof
or the right of a Person thereafter to enforce each and every such
provision. No waiver of any breach of such provisions will be held to
be waiver of any other or subsequent breach.
11.03 NO THIRD-PARTY BENEFICIARIES. Except for the provisions of Article IX
relating to indemnified parties, nothing expressed or implied in the
Transaction Documents is intended or shall be construed to confer upon
or give to any Person, other than the Parties to this Agreement and
their respective successors and permitted assigns, any rights or
remedies under or by reason of the Transaction Documents.
11.04 NOTICES. All notices required or permitted pursuant to this Agreement
will be in writing and will be given (and will be deemed to be properly
given when actually received by the Person entitled to receive the
notice) by delivery in person, courier service, facsimile or registered
or certified mail at the address stated below, or at such other address
as a Party may provide by notice to the other
Seller:
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
4 World Financial Center
Xxx Xxxx, Xxx Xxxx 00000
Attention: Office of the General Counsel
Copy (which shall not constitute
notice) to:
Xxxxxxxx Chance Xxxxxx & Xxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxx
Buyer:
FT Interactive Data Corporation
00 Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxx, Vice President
and General Counsel
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Copy (which shall not constitute notice) to:
Xxxxxxxx & Worcester LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
11.05 EXHIBITS AND SCHEDULES; INCORPORATION BY REFERENCE. The exhibits and
schedules attached to this Agreement are incorporated by reference into
and made a part of this Agreement. The fact that any document, asset,
item, action, entity, event, condition, claim, agreement, or other
matter (hereinafter collectively referred to as "Matter") is set forth
or described or referred to in an one or more exhibits or schedules
will not be construed as a representation, warranty, acknowledgment or
admission by any Person or as evidence that such Matter is, or may at
any time be or have been material or in any way significant to the
transactions contemplated by this Agreement. Disclosure in any exhibit
or schedule to this Agreement will be deemed to be disclosure in any
exhibit(s) or schedule(s) where such disclosure would be appropriate or
required.
11.06 SUCCESSORS AND ASSIGNS. The Transaction Documents will be binding upon
and will inure to the benefit of the signatories to the Transaction
Documents and their respective successors and permitted assigns. Except
as otherwise set forth in the applicable Transaction Document, neither
Seller nor Buyer may assign any of the Transaction Documents, or any of
their rights or liabilities under the Transaction Documents, without
the prior written consent of the other signatories to the Transaction
Documents, provided that Seller and Buyer may so assign in whole or in
part, to one or more of their Affiliates.
11.07 ENTIRE AGREEMENT. The Transaction Documents and the Confidentiality
Agreement constitute the entire agreement between the signatories to
this Agreement with respect to the subject matter of the Transaction
Documents and will supersede all previous negotiations, commitments,
and writings with respect to such subject matter. SELLER AND BUYER MAKE
NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, OTHER
THAN THOSE SPECIFICALLY SET FORTH IN THE TRANSACTION DOCUMENTS.
11.08 SEVERABILITY. The illegality or partial illegality of any or all of the
Transaction Documents, or any provision of the Transaction Documents,
will not affect the validity of the remainder of such agreements, or
any provision thereof, and the illegality or partial illegality of any
such agreements will not affect the validity of any such agreement in
any jurisdiction in which such determination of illegality or partial
illegality has not been made, except in either case to the extent such
illegality or partial illegality causes such agreements to no longer
contain all of the material provisions reasonably expected by the
signatories to be contained therein.
11.09 CAPTIONS. The captions appearing in the Transaction Documents are
inserted only as a matter of convenience and as a reference and in no
way define, limit or describe the scope or intent of such agreements or
any of the provisions thereof.
11.10 COUNTERPARTS. The Transaction Documents may be executed in two or more
counterparts, each of which will be deemed to be an original, but all
such counterparts shall together constitute one and the same
instrument.
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11.11 GOVERNING LAW. The Transaction Documents will be governed by and
construed in accordance with the laws of the State of New York.
11.12 JURISDICTION AND SERVICE OF PROCESS. Any legal action or proceeding
with respect to the Transaction Documents shall be brought in the
courts of the State of New York or of the United States of America for
the Southern District of New York. By execution and delivery of this
Agreement, each Party accepts for itself and in respect of its
property, generally and unconditionally, the jurisdiction of the
aforesaid courts. Each Party irrevocably consents to the service of
process of any of the aforementioned courts in any such action or
proceeding by the mailing of copies of service of process by certified
mail, postage prepaid, to the Party at its address set forth in Section
11.04 of this Agreement.
11.13 WAIVER OF JURY TRIAL. SELLER AND BUYER HEREBY IRREVOCABLY WAIVE ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
(WHETHER BASED IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO THE TRANSACTION DOCUMENTS OR THE ACTIONS OF SELLER OR BUYER
IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT OF THE
TRANSACTION DOCUMENTS.
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IN WITNESS WHEREOF, each of the signatories hereto has caused this
Agreement to be signed by their respective duly authorized officers as of the
date first above written.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX FT INTERACTIVE DATA CORPORATION
INCORPORATED
By: /s/ Xxxxxxxx X. Xxxx By: /s/ Xxxxxx X. Xxxxx
--------------------------------- --------------------------------
Name: Xxxxxxxx X. Xxxx Name: Xxxxxx X. Xxxxx
Title: First Vice President Title: President and Chief
Executive Officer
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The following exhibits and schedules have been omitted and will be
supplementally furnished to the Securities and Exchange Commission upon request:
Exhibits
Exhibit 1.17 ....... Form of Data and Software License and Services Agreement
Exhibit 1.37 ....... Form of ML Fixed Income Output License
Exhibit 1.40 ....... Form of Real Estate License
Exhibit 1.46 ....... Form of Transitional Services Agreement
Schedules
Schedule 1.01 ...... Acquired Assets
Schedule 1.14 ...... Contracts
Schedule 1.21 ...... Equipment
Schedule 1.26 ...... Financial Information
Schedule 1.32 ...... Knowledge of Seller/Buyer
Schedule 1.33 ...... Licenses
Schedule 1.36 ...... Xxxxxxx Xxxxx Code
Schedule 1.38 ...... Permitted Liens
Schedule 4.03 ...... Authorizations
Schedule 4.04 ...... Conflicts
Schedule 4.05 ...... Compliance with Laws
Schedule 4.06 ...... Contracts
Schedule 4.07 ...... Equipment not in Good Operating Condition
Schedule 4.10 ...... Intellectual Property
Schedule 4.11 ...... Litigation and Claims
Schedule 4.12 ...... Permits
Schedule 4.13 ...... Recent Conduct of the Business
Schedule 4.15 ...... Title to Tangible Assets
Schedule 4.16 ...... Employee Benefits Plans; ERISA
Schedule 4.17 ...... Employment Arrangements
Schedule 4.19 ...... Certain Customer Changes
Schedule 5.03 ...... Authorizations
Schedule 5.07 ...... Litigation and Claims
Schedule 6.05(d) ... Third Party Vendors
Schedule 6.10 ...... Continuing Employees
Schedule 6.18 ...... Seller Invoiced Contracts
