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EXHIBIT 10.56
STOCK PURCHASE AGREEMENT
by and between
XXXXXXXX COMMUNICATIONS, INC.,
CONFERENCING ACQUISITION CORPORATION
and
GENESYS, S.A.
Dated as of June 30, 1999
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TABLE OF CONTENTS
STOCK PURCHASE AGREEMENT
Page
ARTICLE I. PURCHASE AND SALE OF SHARES..................................... 2
1.01 Shares Being Sold......................................... 2
1.02 Purchase Price............................................ 2
1.03 Net Current Asset Adjustment.............................. 2
1.04 Capital Expenditures...................................... 7
ARTICLE II. CLOSING........................................................ 8
2.01 Date of Closing........................................... 8
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF SELLER...................... 8
3.01 Organization and Authority................................ 8
3.02 Capital Stock of the Company.............................. 9
3.03 Subsidiaries.............................................. 9
3.04 Authorization of Agreement................................ 10
3.05 No Conflicts.............................................. 10
3.06 Litigation................................................ 11
3.07 No Consents............................................... 11
3.08 Financial Statements...................................... 11
3.09 Undisclosed Liabilities................................... 13
3.10 Title to and Condition of Assets.......................... 13
3.11 Compliance with Law....................................... 13
3.12 Intellectual Property..................................... 14
3.13 Contracts and Commitments................................. 15
3.14 Employees and Employee Benefits........................... 16
3.15 Absence of Certain Changes................................ 18
3.16 Restrictions on Property.................................. 20
3.17 Taxes..................................................... 20
3.18 No Brokers................................................ 21
3.19 Disclosure................................................ 21
3.20 Sufficiency of Assets..................................... 21
3.21 Transactions with Affiliates.............................. 22
3.22 Software.................................................. 22
3.23 Environmental Matters..................................... 22
3.24 Real and Personal Property Leased to Seller............... 24
3.25 Absence of Sensitive Payments............................. 25
3.26 Labor Disputes; Unfair Labor Practices................... 26
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3.27 Insurance Policies........................................ 26
3.28 Customers................................................. 27
3.29 Bridge Capacity and Location.............................. 27
3.30 Corporate Documents; Officers and Directors............... 27
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF PURCHASER..................... 28
4.01 Organization of Purchaser................................. 28
4.02 Authorization of Agreement................................ 28
4.03 No Brokers................................................ 28
4.04 Purchase for Investment................................... 29
4.05 No Conflicts.............................................. 30
ARTICLE V. CONDUCT PRIOR TO THE CLOSING.................................... 31
5.01 General................................................... 31
5.02 Seller's Obligations...................................... 31
ARTICLE VI. CONDITIONS TO CLOSING.......................................... 38
6.01 Conditions to Seller's Obligations........................ 38
6.02 Conditions to Purchaser's Obligations..................... 39
ARTICLE VII. FURTHER AGREEMENTS OF THE PARTIES.............................. 40
7.01 Expenses.................................................. 40
7.02 Cooperation after Closing................................. 41
7.03 Employees................................................. 41
7.04 Transfer Taxes............................................ 42
7.05 Mail...................................................... 42
7.06 Confidentiality Agreements................................ 42
7.07 Books and Records......................................... 42
7.08 Consents.................................................. 43
7.09 Non-Solicitation.......................................... 44
7.10 Insurance................................................. 44
7.11 Expenses or Assets of the Business........................ 44
7.12 Confidentiality and Publicity............................. 45
7.13 Section 338(h)(10) Election............................... 46
7.14 Deferred Revenue-Bridges Liability........................ 48
ARTICLE VIII. CLOSING DATE DELIVERIES...................................... 48
8.01 Documents to be Delivered by Seller....................... 48
8.02 Documents to be Delivered by Purchaser.................... 49
8.03 Funds to be Delivered..................................... 50
ARTICLE IX. INDEMNIFICATION................................................ 50
9.01 Survival.................................................. 50
9.02 Indemnification by Seller................................. 50
9.03 Indemnification by Purchaser.............................. 52
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9.04 Notice to the Indemnitor.................................. 52
9.05 Right of Parties to Settle or Defend...................... 52
9.06 Settlement Proposals...................................... 53
9.07 Reimbursement............................................. 54
ARTICLE X. EFFECT OF TERMINATION/PROCEEDING................................ 55
10.01 Right to Terminate........................................ 55
10.02 Remedies.................................................. 55
ARTICLE XI. MISCELLANEOUS.................................................. 56
11.01 Entire Agreement.......................................... 56
11.02 Governing Law; Arbitration................................ 56
11.03 Amendment; Waiver......................................... 57
11.04 Notices................................................... 57
11.05 Separability.............................................. 59
11.06 Assignment and Binding Effect............................. 59
11.07 No Benefit to Others...................................... 59
11.08 Counterparts.............................................. 59
11.09 Interpretation............................................ 60
DEFINITIONS
"AAA" shall have the meaning provided in Section 11.02.
"ACT" shall have the meaning provided in Section 3.02.
"ACCUMULATED FUNDED DEFICIENCY" shall have the meaning provided in
Section 3.14(d).
"ADDITIONAL AGREEMENTS" shall have the meaning provided in Section 7.01.
"AFFILIATE" shall mean with respect to a person or entity, any other person or
entity that controls, is controlled by, or is under common control with, such
person or entity.
"AGREEMENT" shall have the meaning provided in the preambles.
"ARBITRATOR" shall have the meaning provided in Section 1.03(d).
"ASSETS" shall mean all of the properties, rights and assets of Seller, of every
kind, nature and description, tangible or intangible, used or necessary for the
Business, whether arising by contract, law, or otherwise, including any such
assets or rights that have been written off or have not been included on the
books of Seller, as the same shall exist immediately prior to the Closing, the
tangible fixed assets of which are situated in and around Denver, Colorado or
are listed on Schedule 5.02(a)(i), except for the Excluded Assets, which
Excluded Assets are more particularly
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described in Section 5.02(a)(ii) and the Schedule referred to therein.
"ASSUMED LIABILITIES" shall have the meaning provided in Section 5.02(a)(iii).
"BASKET AMOUNT" shall have the meaning provided in Section 9.02.
"BENEFITS" shall have the meaning provided in Section 7.03.
"BUSINESS" shall mean the audio and video conferencing business conducted by
Conferencing primarily from its location in Denver, Colorado, as such business
is conducted immediately prior to the Closing, excluding the Tulsa Business.
"CLOSING" shall have the meaning provided in Section 2.01.
"CLOSING DATE" shall have the meaning provided in Section 2.01.
"CLOSING DATE BALANCE SHEET" shall have the meaning provided in Section
1.03(a)(i).
"CLOSING DATE CURRENT ASSETS" shall have the meaning provided in Section
1.03(a)(ii).
"CLOSING DATE CURRENT LIABILITIES" shall have the meaning provided in Section
1.03(a)(iii).
"CLOSING DATE NET CURRENT ASSET AMOUNT" shall have the meaning provided in
Section 1.03(a)(iv).
"CLOSING DATE RECEIVABLES" shall have the meaning provided in Section
1.03(a)(v).
"CODE" shall have the meaning provided in the preambles.
"COLLECTION DATE" shall have the meaning provided in Section 1.03(a)(v).
"COMPANY" shall have the meaning provided in the preambles.
"CONFERENCING" shall have the meaning provided in the preambles.
"CONFERENCING SERVICES AGREEMENT" shall have the meaning provided in Section
8.01(d).
"CONFIDENTIAL INFORMATION" shall have the meaning provided in Section 7.12(a).
"CONTRACTS" shall have the meaning provided in Section 5.02(a)(12).
"COPYRIGHTS" shall have the meaning provided in Section 5.02(a)(8).
"DAMAGES" shall have the meaning provided in Section 9.02.
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"DEFICIENCY" shall have the meaning provided in Section 1.03(a)(vi).
"DISPUTED ITEM" OR "DISPUTED ITEMS" shall have the meaning provided in Section
1.03(c)(ii).
"DOJ" shall have the meaning provided in Section 6.01(e)
"EMPLOYEE" shall have the meaning provided in Section 3.14(a).
"EMPLOYEE BENEFIT PLAN" shall have the meaning provided in Section 3.14(b)(i).
"EMPLOYEE BENEFIT PROGRAM" OR "EMPLOYEE BENEFIT PROGRAMS" shall have the meaning
provided in Section 3.14(b)(ii).
"ENVIRONMENTAL CLAIM" shall have the meaning provided in Section 3.23(e).
"ENVIRONMENTAL LAWS" shall have the meaning provided in Section 3.23(e).
"ERISA" shall have the meaning provided in Section 3.14(b)(i).
"EVENTS MANAGEMENT" shall mean the integration (and not individual sale of
component parts) of video events, including the integration of video
conferencing with other services, encompassing fiber optic cable, satellite,
ISDN and internet protocol transmission, whether interactive or non-interactive,
utilized by customers for the purpose of corporate communications or messaging,
sales or product roll-outs or sales training, and shall include project
management, AV equipment rental, third party production and direct customer
distribution.
"EVENTS RESELLER AGREEMENT" shall have the meaning provided in Section 8.01(e).
"EXCLUDED ASSETS" shall have the meaning provided in Section 5.02(a)(ii).
"EXCLUDED LIABILITIES" shall have the meaning provided in Section 5.02(a)(iii).
"EXPENDITURES" shall have the meaning provided in Section 1.04.
"E&Y" shall have the meaning provided in Section 1.03(d).
"FINANCIAL STATEMENTS" shall have the meaning provided in Section 3.08(a).
"FTC" shall have the meaning provided in Section 6.01(e).
"GAAP" shall have the meaning provided in Section 1.03(a)(ii).
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" shall have the meaning provided in
Section 11.09.
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"HSR ACT" shall have the meaning provided in Section 6.01(e).
"INDEMNIFIED PURCHASER PARTIES" shall have the meaning provided in Section 9.02.
"INDEMNITEE" shall have the meaning provided in Section 9.04.
"INDEMNITOR" shall have the meaning provided in Section 9.04.
"INVENTORY" shall have the meaning provided in Section 5.02(a)(13).
"LIEN" shall mean any mortgage, pledge, security interest, lien, or encumbrance
of any kind.
"LOSSES" shall have the meaning provided in Section 9.02.
"MARKS" shall have the meaning provided in Section 5.02(a)(6).
"MATERIAL CONTRACTS" shall have the meaning provided in Section 3.13(a).
"MATERIAL OF ENVIRONMENTAL CONCERN" shall have the meaning provided in Section
3.23(e).
"NON-COMPETITION AGREEMENT" shall have the meaning provided in Section 8.01(c).
"PATENTS" shall have the meaning provided in Section 5.02(a)(7).
"PLAN" OR "PLANS" shall have the meaning provided in Section 3.14(b)(i).
"PROHIBITED TRANSACTION" shall have the meaning provided in Section 3.14(d).
"PROPOSED SETTLEMENT" shall have the meaning provided in Section 9.06(a).
"PURCHASE PRICE" shall have the meaning provided in Section 1.02(a).
"PURCHASE PRICE ALLOCATION" shall have the meaning provided in Section 7.13(b).
"PURCHASER" shall have the meaning provided in the preambles.
"PURCHASER'S ADDITIONAL AGREEMENTS" shall have the meaning provided in Section
4.01.
"PWC" shall have the meaning provided in Section 1.03(d).
"REGULATED PROPERTIES" shall have the meaning provided in Section 3.23(a).
"REPORTABLE EVENT" shall have the meaning provided in Section 3.14(d).
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"SHARES" shall have the meaning provided in the preambles.
"SCHEDULE OF CAPITAL EXPENDITURES" shall have the meaning provided in Section
1.04(e).
"SECTION 338(H)(10) ELECTIONS" shall have the meaning provided in Section
7.13(a).
"SELLER" shall have the meaning provided in the preambles.
"SELLER'S ADDITIONAL AGREEMENTS" shall have the meaning provided in Section
3.01.
"SOFTWARE" shall have the meaning provided in Section 3.22.
"TAX" shall have the meaning provided in Section 3.17.
"TAX RETURNS" shall have the meaning provided in Section 3.17.
"TRANSITION SERVICES AGREEMENT" shall have the meaning provided in Section
8.01(f).
"TULSA BUSINESS" shall mean the business of Conferencing of (i) providing video
conferencing services to companies within the Xxxxxxxx group of companies for
their internal use using the technology currently used by Conferencing in
providing such services, including provision of ISDN video conferencing services
internally until September 25, 2000 and (ii) providing Events Management.
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STOCK PURCHASE AGREEMENT
AGREEMENT (this "Agreement"), dated as of the 30th day of June, 1999,
by and among Xxxxxxxx Communications, Inc., a Delaware corporation ("Seller"),
Conferencing Acquisition Corporation, a Delaware corporation (the "Company") and
Genesys, S.A., a French corporation ("Purchaser").
WHEREAS, Xxxxxxxx Conferencing, a division of Seller ("Conferencing"),
offers worldwide audio and video conferencing services and special events
management to businesses;
WHEREAS, Seller owns 1000 shares (the "Shares") of common stock, par
value $1.00 per share, of the Company, which Shares constitute all of the issued
outstanding securities of the Company;
WHEREAS, in order to induce Purchaser to acquire the Shares, Seller
shall transfer certain of the assets and certain of the liabilities of
Conferencing to the Company;
WHEREAS, subsequent to such transfer, and upon the terms and conditions
set forth herein, Seller desires to sell, and Purchaser desires to purchase, the
Shares;
WHEREAS, the parties hereto intend that the purchase of the Shares by
Purchaser constitute a "qualified stock purchase" for purposes of Section 338 of
the Internal Revenue Code of 1986, as amended (the "Code"), and will be treated
for tax purposes, in accordance with Section 338(h)(10) of the Code and
comparable tax provisions of state and local law, as a purchase of the Assets
(as herein defined).
NOW, THEREFORE, in consideration of the premises and the respective
representations, warranties, covenants and agreements contained herein, the
parties hereto hereby agree as follows:
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ARTICLE I. PURCHASE AND SALE OF SHARES.
1.01 SHARES BEING SOLD.
Upon the terms and subject to the conditions of this
Agreement, on the Closing Date referred to in Article II hereof, Seller shall
sell, assign, transfer and deliver to Purchaser, and Purchaser shall purchase
and acquire from Seller, the Shares.
1.02 PURCHASE PRICE.
(a) In consideration of the sale, assignment, transfer and delivery of
the Shares by Seller to Purchaser at the Closing and in reliance upon the
representations and warranties made herein by Seller, Purchaser agrees to pay to
Seller at the Closing Thirty-Nine Million Dollars ($39,000,000) (the "Purchase
Price"), subject to adjustment as provided in Sections 1.03 and 1.04 below.
(b) All payments to be made on the Closing Date pursuant to this
Section 1.02 shall be made by wire transfer of immediately available funds to
the account or accounts specified in writing by Seller.
1.03 NET CURRENT ASSET ADJUSTMENT.
(a) Definitions.
For the purposes of this Agreement, the following terms shall
have the following respective meanings:
(i) "Closing Date Balance Sheet" shall mean the balance sheet
of the Company setting forth the Closing Date Current Assets and Closing Date
Current Liabilities (each as hereinafter defined).
(ii) "Closing Date Current Assets" shall mean, as of the
Closing Date, the net
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amount of those current assets of the Company on the Closing Date Balance Sheet,
determined in accordance with Generally Accepted Accounting Principles ("GAAP"),
consistently applied, except that (u) amounts due from MCI/WorldCom shall be
excluded, (v) cash and cash equivalents shall be excluded, (w) the determination
of Accounts Receivable shall be equal to the Closing Date Receivables as
hereinafter set forth, (x) amounts due from any Affiliates of the Company shall
be excluded, (y) amounts of uncleared checks received prior to the Closing Date
from third parties and not subsequently cleared within sixty (60) days after the
Closing Date shall be reclassified as "Accounts Receivable", and (z) credit
balances in "Accounts Receivable" (other than reserves) shall be reclassified as
"Accounts Payable".
(iii) "Closing Date Current Liabilities" shall mean, as of the
Closing Date, the current liabilities of the Company on the Closing Date Balance
Sheet, in the categories to be agreed upon by the parties on or prior to
Closing, determined in accordance with GAAP, consistently applied, except that
(y) amounts due to any Affiliate of the Company shall be excluded, and (z) debit
balances in "Accounts Payable" shall be classified as "Accounts Receivable."
(iv) "Closing Date Net Current Asset Amount" shall mean the
Closing Date Current Assets less Closing Date Current Liabilities. The Closing
Date Net Current Asset Amount can be a positive or negative number.
(v) "Closing Date Receivables" shall mean those accounts
receivable of the Company on the books of the Company on the Closing Date that
(i) with respect to accounts receivable that were on the books of Seller on May
31, 1999, are collected as of the four month anniversary of the end of the month
in which the Closing Date occurs, or, if the Closing Date
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is no more than ten days after the end of the preceding month, as of the four
month anniversary of the last day of such preceding month, and (ii) with respect
to accounts receivable not on the books of Seller on May 31, 1999 (i.e.,
receivables generated after such date), are collected as of the five month
anniversary of the end of the month in which the Closing Date occurs, or, if the
Closing Date is no more than ten days after the end of the preceding month, as
of the five month anniversary of the last day of such preceding month (the date
referred to in (ii) being the "Collection Date").
(vi) "Deficiency" shall mean the amount, if any, by which the
Closing Date Net Current Asset Amount is less than One Million Dollars
($1,000,000).
(vii) "Excess" shall mean the amount, if any, by which the
Closing Date Net Current Asset Amount is more than One Million Dollars
($1,000,000).
(b) Effect of Deficiency or Excess. The amount of any Deficiency or
Excess shall be reviewed and resolved in accordance with Sections 1.03(c) and
1.03(d) and shall be paid, if applicable, in accordance with Sections 1.03(e)
and 1.03(f).
(c) Delivery of Closing Date Balance Sheet.
(i) No later than 90 days after the Closing Date, Purchaser
shall deliver to Seller the preliminary Closing Date Balance Sheet (the
"Preliminary Statement"); provided, in lieu of the amount of the Closing Date
Receivables, the Preliminary Statement shall include the Accounts Receivable of
the Company (net of reserves) as of the Closing Date.
(ii) Seller shall have forty-five (45) days from its receipt
of the Preliminary Statement to notify Purchaser if it objects to any item on
the Preliminary Statement. Any such notice shall specify the item or items in
dispute (a "Disputed Item" or "Disputed Items").
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(iii) If either (A) Seller does not deliver to Purchaser its
objections in writing to the Preliminary Statement within forty-five (45) days
of its receipt of such statement, or (B) Seller acknowledges in writing that the
Preliminary Statement is accurate, the Preliminary Statement shall be final,
binding and conclusive on all parties.
(iv) Within thirty (30) days after the later of (A) the
Collection Date, (B) the date the Preliminary Statement is finally determined in
accordance with clause (iii) above or (C) all Disputed Items are resolved,
Purchaser shall deliver to Seller the Closing Date Balance Sheet, setting forth
the Closing Date Receivables, which is the only change that shall be made by
Purchaser to the final version of the Preliminary Statement.
(v) Seller shall have thirty (30) days from its receipt of the
Closing Date Balance Sheet to notify Purchaser if it objects to the Closing Date
Receivables (which is the only item on the Closing Date Balance Sheet which the
parties may dispute as a Disputed Item).
(vi) If either (A) Seller does not deliver to Purchaser its
objections in writing to the Closing Date Balance Sheet within thirty (30) days
of its receipt of such statement, or (B) Seller acknowledges in writing that the
Closing Date Balance Sheet is accurate, the Closing Date Balance Sheet shall be
final, binding and conclusive on all parties.
(d) Arbitration. If Purchaser and Seller shall be unable to resolve any
Disputed Items within thirty (30) days after notice from Seller to Purchaser
that a dispute exists, then Seller's accounting representative, Ernst & Young
("E&Y"), and Purchaser's accounting representative, PricewaterhouseCoopers
("PWC"), shall endeavor in good faith to resolve any Disputed Item or Disputed
Items. Either party may change its representative to an accounting firm other
than E&Y or PWC at any time prior to the thirtieth (30th) day after any notice
as set forth in the preceding
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sentence, by notice in writing to the other party. In the event that E&Y and PWC
are unable to resolve the Disputed Item(s) within thirty (30) days, E&Y and PWC
shall together, within ten (10) days thereafter, appoint a representative from
the office of an accounting firm other than E&Y and PWC to arbitrate the dispute
(the "Arbitrator"). Seller and Purchaser shall, within the next twenty (20) days
thereafter, present their positions with respect to the Disputed Item or
Disputed Items to the Arbitrator together with such other material as the
Arbitrator deems appropriate. The Arbitrator shall, after the submission of the
parties' materials, submit a written decision on each Disputed Item to the
Seller and Purchaser. Any determination by the Arbitrator with respect to any
Disputed Item shall be final and binding on each party to this Agreement. The
cost of the Arbitrator shall be borne 50% by Seller and 50% by Purchaser.
(e) Resolution of Deficiency or Excess. If it is finally determined
pursuant to the provisions of this Section 1.03 that there is a Deficiency or an
Excess, then within ten (10) days after all Disputed Items with respect thereto
have been resolved, Seller shall pay to Purchaser the amount of the Deficiency
or Purchaser shall pay to Seller eighty percent (80%) of the amount of any
Excess.
(f) Payment. All payments for any Deficiency or Excess shall be made by
wire transfer of immediately available funds to an account or accounts
designated by Purchaser or Seller, as applicable.
(g) Collection of Receivables.During the period between the date of
this Agreement and the Closing Date, Seller shall use good faith efforts in
collecting the Accounts Receivable on the books of the Company, it being
understood that Seller's obligation shall not extend to the institution of
litigation, employment of counsel or a collection agency, or any other means of
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collection that might have an adverse effect on customer relationships. During
the period after the Closing and prior to the Collection Date, Purchaser shall
use good faith efforts to collect Accounts Receivables on the books of Company
on the Closing Date. Purchaser shall provide to Seller, during the period after
the Closing Date and prior to the Collection Date, on a monthly basis, a report
of the collections made with respect to such Accounts Receivable.
1.04 CAPITAL EXPENDITURES. (a) At Closing, Seller shall deliver to
Purchaser a schedule (the "Schedule of Capital Expenditures") detailing the 1999
third party expenditures (of the type budgeted, but including capital
expenditures for upgrades and enhancement of the billing and reservation systems
for the Business) ("Expenditures") actually made by the Seller in connection
with the Business during the period from January 1, 1999 through May 31, 1999.
Such Schedule of Capital Expenditures shall be certified by the Chief Financial
Officer of Seller as being a true and correct list of payments actually made by
Seller between January 1, 1999 and May 31, 1999 in respect of Expenditures. If
the Schedule of Capital Expenditures shows that the amount of Expenditures
actually made between January 1, 1999 and May 31, 1999, including Expenditures
for upgrades and enhancements of the billing and reservation systems for the
Business, was less than $1,958,333, then the Purchase Price shall be reduced by
the amount by which $1,958,333 exceeds actual Expenditures during such period.
(b) On or prior to the Collection Date, Purchaser shall deliver to
Seller a list of the Expenditures made by the Seller in connection with the
Business for the period from June 1, 1999 through the Closing Date. Within
thirty (30) days after receipt of such list, Seller may dispute the amount of,
or failure to include, any item on such list by written notice to Purchaser. If
no such notice is received by Purchaser within such time period the list shall
be deemed final.
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The parties shall attempt to resolve any dispute with respect to such list in
the manner provided in Section 1.03(d) hereof. Within ten (10) days of the
finalization of such list or resolution of any disputed items on such list,
whichever is later, Seller shall pay to Purchaser the amount, if any, by which
the aggregate Expenditures on such list are less than the prorated amount of
budgeted Expenditures for the period from June 1, 1999 through Closing (based on
an annual budget of $4,700,000).
ARTICLE II. CLOSING.
2.01 DATE OF CLOSING. The closing (the "Closing") of the transactions
contemplated by this Agreement shall take place at the offices of Xxxxxxx &
Xxxxxx, LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, on July 30, 1999 or on such
other date as the parties may agree. The actual time and date of Closing are
hereinafter referred to as the "Closing Date." All calculations hereunder to be
made as of the Closing Date shall be made as of 11:59 p.m., Eastern Standard
Time, on the Closing Date.
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF SELLER.
Seller hereby represents and warrants to the Purchaser as follows:
3.01 ORGANIZATION AND AUTHORITY. Seller and the Company each is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware. In connection with the Business, Seller has qualified
to do business in all jurisdictions in which qualification is necessary in order
to conduct the Business. The Company has not qualified to do business in any
jurisdiction other than Delaware, as it is not doing business and will not do
business prior to Closing. Seller has not failed to qualify to do business in
any jurisdiction where the failure to so qualify would materially adversely
affect the financial condition of the Business
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or its ability to perform its obligations under this Agreement and the other
agreements and instruments referred to in Section 8.01 of this Agreement to be
executed and delivered by Seller ("Seller's Additional Agreements") or its
ability to operate the Business. Seller has, and the Company shall have at
Closing, the full power and authority to own or lease and operate its properties
relating to the Business and to carry on the Business as now being operated and
conducted. Seller has full power and authority to carry out the transactions
contemplated by this Agreement and Seller's Additional Agreements.
3.02 CAPITAL STOCK OF THE COMPANY. The authorized capital stock of the
Company consists of 1000 shares of common stock, par value $1.00 per share, of
which the Shares are the only issued and outstanding securities of the Company.
The Shares are duly and validly issued, outstanding, fully paid and
non-assessable and are subject to no preemptive rights. None of the Shares were
issued in violation of the Securities Act of 1933, as amended (the "Act"), or
the securities or blue sky laws of any state or other jurisdiction. There are no
outstanding options, warrants or agreements of any kind for the issuance or sale
of, or outstanding securities convertible into, any shares of capital stock of
any class of the Company. Seller has complete and unrestricted power to sell,
convey, assign, transfer and deliver the Shares to Purchaser. The transfer of
the Shares pursuant to this Agreement will convey to Purchaser good, valid and
marketable title to the Shares, free and clear of all Liens. Upon delivery of
the Shares to Purchaser pursuant to this Agreement, Purchaser will have good,
valid and marketable title to all the outstanding shares of capital stock of the
Company, and the Shares will be, when delivered, duly authorized, validly
issued, fully paid and non-assessable.
3.03 SUBSIDIARIES. The Company does not (i) own, and on the Closing
Date will not
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own, directly or indirectly, any interest or investment (whether equity or debt)
in any corporation, partnership, joint venture, trust, or other entity, or (ii)
have any option, right, agreement or commitment of any kind, whether oral or in
writing, to acquire any securities of or to make any investment in any person,
corporation, partnership, joint venture, trust or other entity.
3.04 AUTHORIZATION OF AGREEMENT. The execution, delivery and
performance by Seller of this Agreement and Seller's Additional Agreements and
the consummation by Seller of the transactions contemplated hereby and thereby,
have been duly authorized by all necessary corporate action of Seller. This
Agreement has been, and Seller's Additional Agreements shall be on the Closing
Date, duly executed and delivered by Seller, and constitute the legal, valid and
binding obligations of Seller, enforceable against Seller in accordance with
their respective terms, except as the enforceability of this Agreement and
Seller's Additional Agreements may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting the
rights of creditors generally.
3.05 NO CONFLICTS. Neither the execution, delivery or performance of
this Agreement or any of Seller's Additional Agreements, nor the consummation by
Seller of the transactions contemplated hereby or thereby, nor compliance by
Seller with the terms and provisions hereof or thereof, will: (i) conflict with
the Certificate of Incorporation or Bylaws of Seller; (ii) conflict with, or
result in the breach or termination of, or constitute a default (or with notice
or lapse of time, or both, constitute a default) under or result in the
termination or suspension of, or accelerate the performance required by any of
the terms, conditions or provisions of, any material note, bond, mortgage,
indenture, license, lease, agreement, commitment or other instrument to which
Seller is a party or by which any of the Assets is bound, except for any
required consents
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to assignment or other transfer of Contracts, which consents as to Material
Contracts are listed on Schedule 3.13(b); (iii) constitute a violation by Seller
of any law or statute or any judgment, ruling, order, writ, injunction, decree,
rule or regulation of any court or governmental authority applicable to Seller;
or (iv) result in the creation of a Lien upon any of the Assets.
3.06 LITIGATION. Except as set forth on Schedule 3.06, there are no
actions, suits, inquiries, material claims, proceedings or investigations
pending, or, to the best of Seller's knowledge, threatened before any court,
arbitration panel or governmental or administrative body or agency (i) against
Conferencing or the Company, (ii) against Seller relating to the Assets, the
Business or the Shares, or (iii) otherwise relating to the Assets, the Business
or the Shares or the transactions contemplated by this Agreement or Seller's
Additional Agreements nor, to the best of Seller's knowledge, are there any
facts which would provide a basis for any such action, suit, inquiry, claim,
proceeding or investigation. None of the Assets, Business or Shares is subject
to any judgment, order or decree entered in any lawsuit or proceeding.
3.07 NO CONSENTS. Except as set forth on Schedule 3.07, no order,
permission, consent, approval, license, authorization, registration, or
validation of, or filing with, notice to, or exemption by, any governmental
authority, commission, board, or agency is required to authorize, or is required
in connection with, the execution, delivery or performance by Seller of this
Agreement or any of Seller's Additional Agreements.
3.08 FINANCIAL STATEMENTS. (a) Seller has delivered to Purchaser (i)
Conferencing's unaudited income statements with regard to the Business for the
years ended December 31, 1996, 1997 and 1998, and the four months ended April
30, 1999 (ii) Conferencing's unaudited balance sheets with regard to the
Business as at December 31, 1996, 1997 and 1998, and April 30, 1999
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and (iii) Conferencing's unaudited statements of cash flows for the year ended
December 31, 1998, and the four months ended April 30, 1999 (collectively, the
"Financial Statements"). Seller shall supply to Purchaser financial statements
for the five months ended May 31, 1999 as soon as they are available and the
definition of "Financial Statements" shall be deemed to include such May 31,
1999 financial statements after they are delivered. True and correct copies of
the Financial Statements are attached as Schedule 3.08(a) hereto. Except as set
forth on Schedule 3.08(a), the Financial Statements have been prepared in
accordance with GAAP, consistently applied, from books and records maintained by
Seller in accordance with GAAP, consistently applied, and fairly present in all
material respects the financial condition and results of operations of the
Business as of the dates thereof and for the periods presented.
(b) The receivables of Conferencing either reflected on the unaudited
balance sheet of Conferencing as at April 30, 1999 or created subsequent to
April 30, 1999 are, and the receivables of the Company at Closing will be, to
the extent not previously collected in full, true and valid receivables, created
in the ordinary course of the business of Conferencing. Neither Seller nor the
Company has permitted or agreed to any extension in the time for payment of
receivables, accelerated billing or collection practices, except for efforts to
remedy past billing problems in a manner which would not adversely effect
customer relationships, or accepted reduced payments for early or prompt
payment, other than in the ordinary course of business consistent with the past
practice of Conferencing.
(c) Except as set forth on Schedule 3.08(c), none of the obligations of
Seller relating to the Business are, and none of the obligations of the Company
at Closing will be, guaranteed either as to performance or payment by any other
person, and neither (i) Seller, relating to the
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Business, nor (ii) the Company has or will prior to Closing guarantee the
obligations of any other person.
3.09 UNDISCLOSED LIABILITIES. Except for the leases of real and
personal property listed on Schedule 3.13, Schedule 3.24(a) and Schedule
3.24(b), and except for the liabilities of Conferencing reflected on the April
30, 1999 balance sheet or incurred in the ordinary course of business since such
date, neither Conferencing, the Company, the Assets nor the Business are subject
to any debt, liabilities or obligations of any nature, whether absolute,
accrued, contingent or otherwise and whether due or to become due.
3.10 TITLE TO AND CONDITION OF ASSETS. Except as set forth on Schedule
3.10, Seller has, and the Company will have at Closing, good, valid, and
marketable title to all of the Assets owned by it, valid leasehold interests in
all real and personal property leased by it, and valid right, title and interest
in all licenses used by it, in each case related to the Business, free and clear
of all Liens. In all material respects, all of the tangible Assets have been
adequately maintained and repaired for their continued operation and are in good
operating condition, reasonable wear and tear excepted, and usable in the
ordinary course of business for the purposes and uses intended. Except as set
forth on Schedule 3.10 and Schedule 3.21 attached hereto, none of the tangible
Assets are used by Seller, the Company or any third party in connection with any
operation or business other than the Business. Schedule 3.10 attached hereto
sets forth all the states and counties in which any of the tangible Assets are
located (and a brief description of the Assets at each such location).
3.11 COMPLIANCE WITH LAW. Neither Seller nor the Company is in
violation (i) in any material respect of any applicable federal, state or local
law, rule, regulation or ordinance, or (ii)
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of any judgment, writ, decree, injunction, order or any material requirement of
any court, administrative agency, bureau, board, commission, office, department
or other governmental authority or agency, in each case relating to the
Business, and no notice has been received by Seller or the Company alleging any
such violation.
3.12 INTELLECTUAL PROPERTY. Schedule 3.12 attached hereto lists an
accurate and complete description of all of the Marks, Patents and Copyrights
(other than common law rights) owned, licensed, used or required for use by
Seller (and by the Company on the Closing Date) for the Business. Except as set
forth on Schedule 3.12 attached hereto, the Seller is, and the Company on the
Closing Date shall be, the sole and exclusive owner of the Marks, Patents and
Copyrights, free and clear of all Liens. Except as set forth on Schedule 3.12,
no governmental registration of any of such Marks, Patents or Copyrights has
lapsed, expired or been canceled, abandoned, opposed or been the subject of a
re-examination request. Seller has received no notice of any actual or
threatened claims that challenge the scope, validity or enforceability of any of
the Marks, Patents or Copyrights. None of the Marks, Patents or Copyrights
infringes on any trademarks, patents, copyrights or any other rights of any
other person. Seller has received no notice of any actual or threatened claims
of any third party for infringement of the copyrights, patents, trademarks,
trade names or trade secrets of any third party by Seller or the Company
relating to the Business, for unfair competition or based on the use by or
challenging the ownership of or the right to use by Seller or the Company of the
Marks, Patents or Copyrights. None of the Marks, Patents or Copyrights is
subject to any outstanding order, decree, judgment, stipulation, injunction,
written restriction or agreement restricting the scope of use thereof. To the
best of Seller's knowledge, there are no infringing or diluting uses of the
Marks, Patents or
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Copyrights. Neither Seller nor the Company has granted any license, franchise or
permit to any person or entity to use any of the Marks, Patents or Copyrights.
3.13 CONTRACTS AND COMMITMENTS. Except as set forth on Schedule 3.13,
Schedule 3.24(a) or Schedule 3.24(b):
(a) Neither Seller nor the Company is party to or subject to any
Contracts and there are no Contracts relating to the Assets or the Business,
other than those customer contracts which, during the last three calendar years,
involved less than $10,000 in any of such calendar years and those contracts
other than customer contracts involving less than $10,000 in calendar year 1998.
Such Contracts above such amount in such periods are referred to herein as
"Material Contracts".
(b) No consent by, notice to, or approval from any person or entity is
required under any of the Material Contracts as a result of or in connection
with the execution, delivery or performance of this Agreement and Seller's
Additional Agreements and the consummation of the transactions contemplated
hereby or thereby, and the consummation of the transactions contemplated hereby
shall not affect the terms or enforceability thereof or give rise to any right
of termination whatsoever. No Material Contracts contain a "change in control,"
"potential change in control" or similar provision, and the consummation of the
transactions contemplated hereby shall not result in any payment or payments
becoming due from the Company to any person or give any person the right to
terminate or alter the provisions of any Contract.
(c) Neither Seller nor the Company is in default in any material
respect, nor to the best of Seller's knowledge is there any basis for any claim
of such default, under any Contracts made or obligations owed by Seller
thereunder. All Material Contracts are in full force and effect and are valid
and enforceable in accordance with their respective terms, except as the
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enforceability thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium, or other similar laws relating to or affecting the rights of
creditors generally. To the best of Seller's knowledge, none of the other
parties to such Material Contracts is in default thereunder, nor is there any
basis for any claim of such default.
(d) Seller has heretofore delivered to Purchaser true and correct
copies of all Material Contracts and will deliver at the Closing all written
Contracts, and a summary of all oral Contracts. The Material Contracts are
listed on Schedule 3.13, Schedule 3.24(a) or Schedule 3.24(b) and Schedule
5.02(a).
3.14 EMPLOYEES AND EMPLOYEE BENEFITS.
(a) Schedule 3.14 attached hereto sets forth (x) the name of each
employee employed by Seller in connection with the Business and those employees
to be employed by the Company on the Closing Date (each an "Employee"), (y) each
such Employee's date of hire, title, current base salary and other compensation,
and (z) each such Employee's gross earnings for the twelve months ended December
31, 1998 separately setting forth base salary, commission and other compensation
(including gains on the exercise of stock options).
(b) Schedule 3.14 hereto lists:
(i) Each "Employee Benefit Plan" as such term is defined in
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), that is covered by ERISA and that is maintained, or otherwise
contributed to by Seller or the Company for the benefit of the Employees of the
Business (a "Plan"; collectively, the "Plans"); and
(ii) Each plan or arrangement not subject to ERISA maintained, or
otherwise contributed to or paid for by Seller or the Company for the benefit
of Employees employed by
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Seller or the Company in connection with the operation of the Business and
providing for retirement benefits, termination bonuses, deferred compensation,
bonuses, stock options, employee insurance coverage or any similar compensation
or welfare benefit plan (individually, an "Employee Benefit Program";
collectively, the "Employee Benefit Programs").
(c) Each Plan and Employee Benefit Program has been maintained and
administered at all times in compliance in all material respects with all
applicable laws, rules and regulations, including but not limited to ERISA and
the Code applicable to such Plan and Employee Benefit Program.
(d) No "Reportable Event" (as such term is used in Section 4043 of
ERISA), "Prohibited Transaction" (as such term is used in Section 406 of ERISA
or Section 4975 of the Code) or "Accumulated Funded Deficiency" (as such term
is used in Section 412 or Section 4971 of the Code) has heretofore occurred
with respect to any Plan and there exists no condition or set of circumstances
which could result in a "Reportable Event."
(e) Neither Seller nor the Company has contributed to or participated
in any pension plan which is a "multi-employer plan," as defined in Section
3(37) of ERISA, in respect of any employees employed by Seller or the Company
in connection with the operation of the Business.
(f) No material litigation or administrative or other proceeding
involving a Plan or Employee Benefit Program has occurred or to the best of
Seller's knowledge is threatened.
(g) Except as set forth on Schedule 3.13 or Schedule 3.14 hereto,
there are no other employment agreements or contracts or special bonus or
incentive compensation agreements with the Employees of Seller or the Company
employed or sales agents retained in connection with the operation of the
Business.
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3.15 ABSENCE OF CERTAIN CHANGES. Except as and to the extent set forth
in Schedule 3.15 attached hereto or in the April 30, 1999 financial statements
included in the Financial Statements or as contemplated by this Agreement,
since December 31, 1998, neither Seller nor the Company has, with respect to
the Assets or the Business:
(a) suffered any material adverse change in its Business, condition
(financial or otherwise), operations or prospects or any event or occurrence
which, individually or in the aggregate, could reasonably result in a material
adverse change;
(b) operated the Business other than in the ordinary course;
(c) except in the ordinary course of business consistent with past
practice of Conferencing, incurred any material obligations or liabilities
(whether absolute, accrued, contingent or otherwise and whether due or to
become due) or entered into any material agreements, commitments or
transactions;
(d) except in the ordinary course of business consistent with past
practice of Conferencing, canceled any material debts or claims, written off as
uncollectible or canceled any material notes or accounts receivable or any
portion thereof, or waived any rights of material value;
(e) sold or transferred any of its material properties or Assets,
real, personal, mixed, tangible or intangible other than in the ordinary course
of business, consistent with past practice of Conferencing;
(f) disposed of or permitted to lapse any Xxxx, Patent or Copyright,
or any Xxxx, Patent or Copyright application or license (with respect to
lapsing of a common law copyright, Seller's representation contained herein is
given to the best of Seller's knowledge);
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(g) except in the ordinary course of business consistent with past
practice of Conferencing, and as described in Section 1.04 hereof, made any
material capital expenditures or commitments for capital assets or deferred
making any such capital expenditures or commitments for capital assets;
(h) made any change in any accounting practice, principle, policy or
method;
(i) (A) except in the ordinary course of business of Seller and in
amounts consistent with past practice of Conferencing, granted any general
increase in the compensation of Employees of Seller or the Company employed in
connection with the operation of the Business (including, without limitation,
any increase pursuant to any bonus, pension, profit sharing or other plan,
commitment or benefit), except the right granted to certain employees of
Xxxxxxxx Communications Group, Inc. ("WCG") and its Affiliates to purchase
shares of stock of WCG at the initial public offering price, or (B) granted any
increase in any compensation payable to any individual Employee of Seller or the
Company employed in connection with the operation of the Business (other than
increases given in connection with regular reviews in the ordinary course of
business and in amounts consistent with past practice of Conferencing);
(j) accelerated any billing or collection efforts, except for efforts
to remedy past billing problems in a manner which would not adversely affect
customer relationships, or deferred the payment of bills, liabilities or
obligations;
(k) made any advances (except in the ordinary course of business) or
any loans or capital contributions to or investments in any person;
(l) suffered any material damage, destruction or casualty loss
(whether or not covered by insurance);
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(m) failed to use reasonable efforts to (i) maintain intact and
preserve the business organization material to the Business and (ii) preserve
the business relationships with third parties material to the Business;
(n) suffered or made any material change in personnel used in
connection with the Business, whether or not employed by Seller or the Company;
or
(o) agreed, whether in writing or otherwise, to take any action
referred to in this Section 3.15 in the future.
3.16 RESTRICTIONS ON PROPERTY. Seller is not, and the Company shall
not be at Closing, a party to, subject to, or bound by any judgment of any
court or governmental authority or any contract, commitment, agreement,
undertaking, arrangement, or restriction that could prevent the use of any of
the Assets in the manner used by Seller prior to the Closing Date.
3.17 TAXES. Seller and the Company have duly and timely filed or
received extensions to file all Tax Returns required to be filed and paid all
Taxes and other charges due, or claimed to be due, from Seller and the Company
to any federal, state, local or foreign taxing authorities relating to the
Business. All of such Tax Returns and reports of Seller and the Company have
been prepared in accordance with all applicable governmental requirements and
are accurate and complete in all material respects, and Seller and the Company
have paid or made adequate provisions for the payment of all Taxes due and
payable by same. There are no actions or proceedings now pending against Seller
or the Company involving any item of income, deduction, gain, loss or credit
attributable to same related to the Business. There are no Liens for Taxes upon
any of the Assets or the Shares and there are no claims asserted for Taxes or
assessments against Seller or the Company with respect to the Assets. For
purposes of this Agreement, "Tax"
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shall be defined to include any tax of any type imposed by any taxing authority
(including, without limitation, federal, state, local and foreign income, sales,
use, excise, franchise, withholding, transfer, real property and personal
property taxes and any installment payment for such taxes and any tax by reason
of the application of Code regulation section 1-1502-6 or similar provisions in
any taxing jurisdiction), and any interest charges, penalties, additions to tax,
additional amounts, assessments or deficiencies, governmental charges or duties.
For purposes of this Agreement, "Tax Returns" shall mean all federal, state,
local and foreign income, sales, use, excise, franchise, withholding, transfer,
real property and personal property tax returns or annual reports. The Company
is part of an affiliated group and Seller will include the Company in its
consolidated federal income tax return and in any state or local tax return
filed on a consolidated, combined or unitary basis through the close of
business on the Closing Date.
3.18 NO BROKERS. Neither Seller nor the Company has incurred any
obligation or liability, contingent or otherwise, for brokers' or finders' fees
or commissions or similar fees in connection with the transactions contemplated
by this Agreement.
3.19 DISCLOSURE. No representation or warranty of Seller contained in
this Agreement or Seller's Additional Agreements and any instruments attached
to this Agreement, and no statement contained in any certificate, schedule,
list or other document or writing delivered to Purchaser hereunder, contains
any untrue statement of a material fact, or omits to state a material fact
which would render any material statement contained herein or therein untrue or
misleading.
3.20 SUFFICIENCY OF ASSETS. Except as described on Schedule 3.20 and
Schedule 3.21 hereto, the Assets comprise all of the assets, properties and
rights of every type and description, real, personal and mixed, tangible or
intangible, owned, used (other than incidental use) or
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employed by Seller or the Company in operating the Business, or otherwise
necessary for the Business.
3.21 TRANSACTIONS WITH AFFILIATES. Except as described in Schedule
3.21, (a) there are no personnel, facilities, equipment or other property or
types of services being provided to the Business, or shared by, any Affiliate
of Conferencing or the Company, other than that which is incidental, and (b)
there have been no transactions of any type between Conferencing or the Company
and any of such Affiliates since December 31, 1997.
3.22 SOFTWARE. Schedule 3.22 lists all software used in connection
with the Business, except for licensed shrink wrapped off-the-shelf software
(the "Software"), and sets forth which of the Software is owned and which is
licensed. Except as set forth on Schedule 3.22 or Schedule 3.13, Seller has
(whether by ownership, lease or license), and the Company shall have at Closing,
all necessary rights in and to all such Software, including without limitation,
any and all modifications, additions and alterations to such Software such that,
after the date hereof, the Purchaser shall be able to use and operate the
Software substantially in the manner now being used in connection with the
Business.
3.23 ENVIRONMENTAL MATTERS. Neither Seller nor the Company has ever
owned nor does either currently own any real property in connection with the
operation of the Business. Except as set forth in Schedule 3.23 attached
hereto:
(a) Seller and the Company are in compliance in all material respects
with all Environmental Laws (as hereinafter defined) relating to all real
property currently leased by it in connection with the operation of the
Business and all real property previously leased by it in connection with the
operation of the Business (the "Regulated Properties"). Neither Seller nor
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the Company has received any written communication relating to any of the
Regulated Properties, whether from a governmental authority or otherwise, that
alleges that it is not in such compliance. All permits and other governmental
authorizations required pursuant to the Environmental Laws relating to the
Regulated Properties have been obtained by Seller or the Company and are
currently in force, and all such permits and other governmental authorizations
are identified in Schedule 3.23 hereto.
(b) There is no Environmental Claim (as hereinafter defined) relating
to the Regulated Properties pending or, to the best of Seller's knowledge,
threatened against Seller or the Company or any predecessor.
(c) There are no present activities, including, without limitation,
the release, threatened release, emission, discharge or disposal of any
Material of Environmental Concern (as hereinafter defined), that are reasonably
likely to form the basis of any Environmental Claim against Seller, in
connection with the operation of the Business, or the Company.
(d) Without in any way limiting the generality of the foregoing, (i)
the procedures currently used by Seller and the Company for storing, disposing
of or arranging for the disposal of Materials of Environmental Concern on the
Regulated Properties are set forth in Schedule 3.23, (ii) all underground
storage tanks located on any of the Regulated Properties are identified in
Schedule 3.23, (iii) no polychlorinated biphenyls have been disposed of by
Seller or the Company at any of the Regulated Properties and (iv) no exposed,
friable asbestos or asbestos-containing material is present at any of the
Regulated Properties.
(e) Certain definitions used in this Section 3.23 are set forth below:
"Environmental Claim" means any written notice by any person or entity
alleging potential
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liability (including, without limitation, potential liability for investigatory
costs, cleanup costs, remedial activity or removal costs, government response
costs, natural resource damages, property damages, personal injuries, fines or
penalties arising out of, based on, or resulting from (i) the presence, or
release into the environment, of any Material of Environmental Concern at any of
the Regulated Properties or (ii) circumstances forming the basis of any
violation, or alleged violation, of any Environmental Law.
"Environmental Laws" means all federal, state and local laws and
regulations relating to the protection of the environment (including, without
limitation, ambient air, water, land surface or subsurface strata), including,
without limitation, laws and regulations relating to emissions, discharges,
disposals, releases or threatened releases of Materials of Environmental
Concern, or otherwise relating to the generation, treatment, storage, disposal,
transport or handling of Materials of Environmental Concern.
"Material of Environmental Concern" means any material defined as a
"hazardous substance" under Section 101 of the Comprehensive Environmental
Response, Compensation and Liability Act, as amended, and any petroleum
products.
3.24 REAL AND PERSONAL PROPERTY LEASED TO SELLER. Set forth on Schedule
3.24(a) hereto is a description of each lease under which Seller or the Company
is the lessee of any real property used or useful (other than incidental) in
connection with the Business, and on Schedule 3.24(b) hereto is a description
of each lease under which Seller or the Company is the lessee of any material
personal property used or useful in connection with the Business. Seller has
delivered to Purchaser a true, correct and complete copy of each lease
identified on Schedule 3.24(a) and Schedule 3.24(b). The premises or property
described in said leases are presently
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occupied or used by Seller as lessee under the terms of such leases. Except as
set forth on Schedule 3.24(a) and Schedule 3.24(b), all amounts due under such
leases have been paid and there exists no material default by Seller or the
Company, or to the best of Seller's knowledge, by any other party to such leases
under the terms of any such leases and, to the best of Seller's knowledge, no
event has occurred which, upon passage of time or the giving of notice, or both,
would result in any material event of default or prevent Seller or the Company
from exercising and obtaining the benefits of any rights or options contained
therein. Seller has, and the Company shall have at Closing, all right, title and
interest of the lessee under the terms of said leases, free of all Liens and all
such leases are valid and in full force and effect. Except as set forth on
Schedule 3.24(a) and Schedule 3.24(b), no consent is necessary under such leases
in respect of the consummation of the transactions contemplated hereby.
3.25 ABSENCE OF SENSITIVE PAYMENTS. Neither Seller nor the Company nor
any partner, officer, director, manager, agent or employee of Seller or the
Company, in connection with the Business:
(a) has made or authorized any contributions, payments or gifts of
funds or property to any government official, employee or agent where either
the payment or the purpose of such contribution, payment or gift was or is
illegal under (i) the Foreign Corrupt Practices Act and the regulations adopted
thereto, or (ii) applicable local laws;
(b) has directly or indirectly made any contribution to candidates for
public office which would be a violation of (i) the Foreign Corrupt Practices
Act and the regulations adopted thereto, or (ii) applicable local laws; or
(c) maintains any unrecorded fund or asset for any purpose, other than
immaterial
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amounts of xxxxx cash.
3.26 LABOR DISPUTES; UNFAIR LABOR PRACTICES. There is no current union
representation or request for union representation of the employees employed by
Seller or the Company in connection with the operation of the Business. There
is neither pending nor, to the best of Seller's knowledge, threatened any labor
dispute, strike or work stoppage which affects or which reasonably may be
expected to have an adverse effect on the Business. Except as set forth on
Schedule 3.26, within the past three years, neither Seller nor the Company nor
any of their agents, representatives or employees has committed any unfair labor
practice, as defined in the National Labor Relations Act of 1947, as amended, in
connection with the operation of the Business. There is not now pending or, to
the best of Seller's knowledge, threatened any charge or complaint against
Seller or the Company by the National Labor Relations Board, any state or local
labor or employment agency or any representative thereof in connection with the
operation of the Business.
3.27 INSURANCE POLICIES. Set forth on Schedule 3.27 hereto is a list
of all insurance coverages relating to the Assets or the Business, including
without limitation all coverages of properties, operations or personnel of
Seller or the Company, all of which insurance coverages shall cease as of
Closing. Policies covering the types of insurance thereon described evidence
insurance in such amounts and against such risks and losses as are generally
maintained with respect to comparable businesses and properties. Except as set
forth on Schedule 3.27, there are no claims by Seller relating to the Business
or the Company pending under any of such insurance coverages as to which
coverage has been questioned, disputed or denied by the underwriter's of such
insurance coverages. To the best of Seller's knowledge, no state of facts
exists and no event
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has occurred relating to the Business that might form the basis of any claim
against or relating to Seller or the Company that might substantially increase
the Seller's insurance premiums payable under or result in the cancellation or
non-renewal of any of the coverages listed on Schedule 3.27.
3.28 CUSTOMERS. Attached hereto as Schedule 3.28 is a true and correct
list of the top thirty (30) customers of the Business for the fiscal year ended
December 31, 1998 and the three months ended March 31, 1999, and the total
dollar amount of services billed to such customers. True and correct copies of
schedules detailing the rates charged to such customers have been provided to
Purchaser. Except as set forth on Schedule 3.28, no customer that purchased
services from Seller during the fiscal year ended December 31, 1998 or during
the three months ended March 31, 1999 has given written or oral notification to
Conferencing of its intent to cancel, terminate, materially reduce or otherwise
suspend such relationship.
3.29 BRIDGE CAPACITY AND LOCATION. The port capacity and location of
the bridges contained within the Assets (whether owned or leased) are set forth
on Schedule 3.29. Except as set forth on Schedule 3.29, none of such bridges
will require relocation prior to one year after the date of Closing, except for
any such relocation required due to any act or failure to act by Purchaser,
including the purchase of services from a carrier not currently used for the
Business.
3.30 CORPORATE DOCUMENTS; OFFICERS AND DIRECTORS. Seller will, no
later than ten (10) days prior to Closing, furnish Purchaser with true, correct
and current copies of (i) the Articles of Incorporation and By-laws of the
Company, together with all respective amendments thereto, (ii) the minute book
of the Company containing all records of proceedings, consents, actions and
meetings of the shareholders and board of directors of same, and (iii) the
stock transfer book of
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the Company setting forth all issuances and transfers of capital stock of the
Company. The names of the officers and directors of the Company will also be so
provided.
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
Purchaser represents and warrants to Seller as follows:
4.01 ORGANIZATION OF PURCHASER. Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of France and
has the full corporate power and authority to enter into this Agreement and the
other agreements and instruments referred to in Section 8.02 of this Agreement
to be executed and delivered by Purchaser (the "Purchaser's Additional
Agreements") and to carry out the transactions contemplated hereby and thereby.
4.02 AUTHORIZATION OF AGREEMENT. The execution, delivery and
performance by Purchaser of this Agreement and Purchaser's Additional
Agreements and the consummation by Purchaser of the transactions contemplated
hereby and thereby, have been duly authorized by all necessary corporate action
of Purchaser. This Agreement has been, and Purchaser's Additional Agreements
shall be on the Closing Date, duly executed and delivered by Purchaser and
constitute the legal, valid and binding obligations of Purchaser, enforceable
against Purchaser in accordance with their respective terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting the
rights of creditors generally.
4.03 NO BROKERS. Except for Purchaser's obligation to Mille Capital
Corporation for a merger and acquisition fee, for which Seller shall not be
obligated, Purchaser has not incurred any obligation or liability, contingent
or otherwise, for brokers' or finders' fees or commissions or similar fees in
connection with the transactions contemplated by this Agreement.
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4.04 PURCHASE FOR INVESTMENT. (a) Purchaser is purchasing the Shares
for its own account for investment and not with a view to the distribution or
resale thereof, except in compliance with the Act and all other applicable
securities laws, rules or regulations.
(b) Purchaser is able to fend for itself in the transactions
contemplated by this Agreement, has such knowledge and experience in financial
and business matters to be capable of evaluating the merits and risks of its
investment, has the ability to bear the economic risks of its investment, and
has been furnished with and has had access to such information as it has
requested and deemed appropriate to its investment decision. In particular,
Purchaser is experienced in evaluating and investing in companies involved in
the operation and management of businesses similar to the Business. Purchaser
has had the opportunity to discuss the business, management, and financial
affairs of Conferencing and the Company with the principal officers of the
Company, Conferencing and Seller. Purchaser has had access to and the
opportunity to review all of Conferencing's and the Company's financial and
operational documents and plans of operations.
(c) Purchaser understands and acknowledges that the Shares are
restricted securities under the Act and may not be resold or transferred unless
the Shares to be resold are first registered under the securities laws or
unless an exemption from such registration is available. Accordingly, Purchaser
acknowledges and agrees that it is prepared to hold such Shares for an
indefinite period and Purchaser must therefore bear the economic risk of such
investment indefinitely, unless a subsequent disposition thereof is registered
under the Act or is exempt from registration.
(d) Each instrument representing the Shares may be endorsed with the
following
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legend:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND
MAY NOT BE SOLD, TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS
THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT
COVERING SUCH SECURITIES, THE SALE IS MADE IN ACCORDANCE WITH
RULE 144 UNDER THE ACT, OR THE COMPANY RECEIVES AN OPINION OF
COUNSEL FOR THE HOLDER OF THE SECURITIES REASONABLY
SATISFACTORY TO THE COMPANY, STATING THAT SUCH SALE,
TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE
REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH
ACT.
(e) Anything in this Section to the contrary notwithstanding, Seller
acknowledges that Purchaser is relying on the representations, warranties and
covenants of Seller made herein in making its decision to execute this Agreement
and Purchaser's Additional Agreements and consummate the transactions
contemplated hereby and thereby.
4.05 NO CONFLICTS. Neither the execution, delivery or performance of
this Agreement or any of Purchaser's Additional Agreements, nor the consummation
by Purchaser of the transactions contemplated hereby or thereby, nor compliance
by Purchaser with the terms and provisions hereof or thereof, will: (i) conflict
with the organizational documents of Purchaser; (ii) conflict with, or result in
the breach or termination of, or constitute a default under or result in the
termination or suspension of, or accelerate the performance required by any of
the terms, conditions or provisions of any material note, bond, mortgage,
indenture, license, lease, agreement, commitment, or other instrument to which
Purchaser is a party; or (iii) constitute a violation by Purchaser of any law or
statute or any judgment, ruling, order, writ, injunction, decree, rule or
regulation of any court or governmental authority applicable to Purchaser.
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ARTICLE V. CONDUCT PRIOR TO THE CLOSING
5.01 GENERAL. Seller and Purchaser shall have the rights and
obligations with respect to the period between the date hereof and the Closing
Date which are set forth in the remainder of this Article V.
5.02 SELLER'S OBLIGATIONS. The following are Seller's obligations:
(a) (i) On or prior to the Closing Date, Seller shall transfer to
the Company, and on the Closing Date the Company shall own, all of Seller's
right, title and interest in and to the Assets. The Assets shall include,
without limitation, all of Seller's right, title and interest in and to the
following:
(1) all accounts receivable due to Conferencing in connection with
the Business;
(2) all furniture, fixtures, bridges, equipment and other fixed
assets of the Business, or used or necessary for the operation of the Business,
situated in and around Denver, Colorado, together with any related warranties
with respect thereto;
(3) all prepaid expenses and deposits of the Business (other than
deposits on real estate leases);
(4) all hardware of the Business or used or necessary for the
Business situated in and around Denver, Colorado and all software and all
databases and database systems of the Business or used or necessary for the
Business, whether owned, leased, or licensed, together with any related
warranties with respect thereto;
(5) all existing lists (whether rented or owned), documents and
records of the Business, or used or necessary for the Business, relating to
past, present and prospective
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customers of the Business (in printed form, on magnetic tape or in any
computer-based or electronic media);
(6) all trademarks, trademark applications, service marks,
tradenames, trade dress and logos, including any existing or pending
registrations or applications for registration therefor of the Business or used
or necessary for the Business, but not the names "Xxxxxxxx" or "Xxxxxxxx
Conferencing" or any marks or logos incorporating or relating to such names
(collectively, the "Marks") and rights to obtain Marks, whether under statute or
common law;
(7) all existing patents and applications for patents of the
Business, or used or necessary for the Business (collectively, the "Patents")
and rights to obtain Patents, whether under statute or common law;
(8) all copyrights owned by Seller and all rights of Seller under
any copyright laws, together with any copyright registrations and applications
for registration therefor, of the Business, or used or necessary for the
Business (collectively, the "Copyrights");
(9) the information contained on Seller's site on the world wide
web (xxxx://xxx.xxxxxxxxxxxxxxxxxxxx.xxx) used or necessary in connection with
the Business, but not including any marks or other information specifically
retained by Seller under this Agreement;
(10) all trade secrets and confidential information of the
Business, or used or necessary for the Business, provided that confidential
information of third parties relating to the Business shall be transferred to
the Company only to the extent that such third parties so consent, if such
consent is required;
(11) all existing files, accounting and other records,
correspondence, internal
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reports and contractual documents of the Business or used or necessary for the
Business (in printed form, on magnetic tape or in any computer-based or
electronic media);
(12) subject to Section 7.08, all existing contracts, leases,
licenses, commitments and agreements (oral or written) (collectively, the
"Contracts") of the Business or used or necessary for the Business, whether
fully performed or wholly or partially executory on the Closing Date;
(13) all supplies and inventory of the Business or used or
necessary for the Business, wherever located, whether in the possession of
Seller or a third party, relating to the Business (collectively, the
"Inventory");
(14) all of the goodwill and going concern value of the Business;
and
(15) all telephone numbers of the Business or used or necessary
for the Business to the extent Seller has the right to transfer such numbers.
(16) the assets referred to on Schedule 5.02(a)(i).
(ii) The Assets to be transferred to the Company shall not include, and
Purchaser acknowledges that there shall be excluded from the Assets to be
transferred to the Company, (a) all cash or cash equivalents other than prepaid
expenses of the Business, (b) all facility leases and related leasehold
improvements and facility lease deposits, (c) the AT&T contracts effective
September 25, 1996 and June 23, 1995, and all amendments thereto, and the
MCI/WorldCom contract dated April 13, 1994, and all amendments thereto,
including any amounts due from such parties under such contracts (d) subject to
the following sentence, any assets of, or used or necessary for, the Tulsa
Business, including the Events Management bridge located in Tulsa, Oklahoma, and
including, without limitation, the assets listed on Schedule 5.02(a)(ii), (e)
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the Latitude bridge located in Houston, Texas, (f) the names "Xxxxxxxx" and
"Xxxxxxxx Conferencing" and any Marks or logos containing such names or relating
thereto, (g) all insurance policies of Seller, and (h) amounts due from any
Affiliate of the Company (other than Accounts Receivable from Affiliates of the
Company related to the purchase of audio conferencing services) (collectively,
the "Excluded Assets"). In the event that any asset is shared in use (other than
incidental use) in both the Business and the Tulsa Business, Seller shall either
transfer all of its right, title and interest in such asset to the Company as
part of the Assets or provide a replacement asset to be transferred to the
Company as part of the Assets.
(iii) On or prior to the Closing Date, the only liabilities Seller
shall transfer to the Company shall be (A) those executory obligations of
Conferencing relating to the Business under each Contract that is (1) not in
default by Conferencing and as to which no claim of default by Conferencing
exists on the Closing Date and (2) enforceable by Purchaser without the consent
of any third party (or for which a consent is obtained within thirty (30) days
after the Closing Date), and (B) those ordinary course of business third party
vendor liabilities of Conferencing or the Company of the type and in amounts
which are currently due as of the Closing Date set forth on a closing schedule
of liabilities to be agreed upon by the parties on or prior to Closing, and (C)
the liabilities under the captions "Capital Leases Due in One Year" and "Capital
Leases Long Term" on the Balance Sheet of Conferencing dated April 30, 1999
(collectively, the "Assumed Liabilities"). Other than the Assumed Liabilities,
the Company shall have no liabilities on the Closing Date. Purchaser shall be
responsible for, and will thereafter pay, perform and discharge when due all
debts, liabilities and obligations arising out of or relating to events or
transactions occurring after the Closing Date in connection with the operation
of the Business or the Company
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or the use of the Assets, contingent or otherwise, known or unknown. In no event
shall the Assumed Liabilities include the following liabilities of Seller,
whether absolute, accrued, contingent or otherwise, disclosed or undisclosed,
and whether or not relating to the Assets, the Business or any other business of
Seller: (a) subject to Section 7.04, any liabilities in respect of any Tax
including federal, state, local or foreign income taxes, sales and use taxes,
excise taxes, payroll taxes and transfer and other taxes relating to the period
prior to Closing, (b) any liability for Seller's legal, accounting or broker's
fees incurred in connection with the negotiation of this Agreement or the
consumation of the transactions contemplated hereby, (c) any liabilities related
to any litigation of Seller relating to events or transactions occurring on or
before the Closing Date, (d) except as otherwise provided in Section 7.03, any
liability or obligation of Seller associated with employees of Seller employed
in connection with the operation of the Business, whether or not such employees
are later transferred to the Company, including but not limited to salary,
bonus, sales commissions or other compensation, the amount of sick and holiday
days and vacation representing the pro rata amount thereof attributable to the
period prior to the Closing Date, profit sharing, or any pension, severance
(including severance liability to 28 Employees of the Company identified by
Purchaser prior to Closing in accordance with Section 7.03), disability,
medical, dental, life or retirement benefits, (e) any liability owing by Seller
to any former owner of Conferencing or its predecessor or to any Affiliate of
Seller for loans, advances, or inter-company charges or allocable costs, (f) any
liability for uncleared checks of Seller, (g) any indebtedness of Seller for
borrowed money, (h) any liability under any facility leases of Seller, (i) any
liabilities under the AT&T contracts effective September 25, 1996 and June 23,
1995, (j) any contingent liabilities relating to events or transactions
occurring on or
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before the Closing Date, (k) any liability under the MCI/WorldCom contract dated
April 13, 1994, including any liability related to the termination by Seller of
its contract with MCI/WorldCom in 1996, (l) any liabilities relating to the
Tulsa Business, (m) the liabilities under the caption "Deferred Revenue-Bridges"
on the Balance Sheet of Conferencing dated April 30, 1999, and (n) any Tax gains
or income liability to Seller or the Company resulting from the Section
338(h)(10) Election contemplated under Section 7.13 (collectively, the "Excluded
Liabilities").
(b) Seller shall give the Purchaser's officers, employees, attorneys,
consultants and accountants reasonable access upon reasonable notice during
normal business hours to all of the properties, books, contracts, documents,
records and personnel of Seller and the Company relating to the Assets and the
Business and shall furnish to Purchaser such information as Purchaser may at any
time and from time to time reasonably request relating to the Assets and the
Business.
(c) Seller shall carry on the Business in the usual and ordinary course
of business, consistent with past practices of Conferencing, and shall use its
best commercial efforts to preserve the Business and the goodwill of the
customers and suppliers of the Business and others having business relations
with Conferencing and to retain Conferencing's business organization intact,
including keeping available the services of its present Employees,
representatives and agents, and, in all material respects, shall maintain all of
Conferencing's properties in good operating condition and repair, ordinary wear
and tear excepted. Seller shall cooperate with Purchaser in offering the bonuses
specified in the Transition Services Agreement to the Employees of the Company
listed therein, payable at the times specified therein.
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(d) Without the prior consent of Purchaser, and without limiting the
generality of any other provision of this Agreement, except as set forth on
Schedule 5.02(d) or in the Transition Services Agreement, neither Seller nor the
Company shall, with respect to the Business:
(i) make any payments or distributions to Seller's or the Company's
Employees, officers, or directors employed or retained in connection with the
operation of the Business, except such amounts as constitute currently effective
compensation for services rendered or for reimbursement for ordinary and
necessary out-of-pocket business expenses;
(ii) hire any new employee for the Business or terminate (except
for cause) the employment of any Employee employed by Seller or the Company in
connection with the operation of the Business with annual compensation in excess
of $30,000, or solicit or hire any Employee of the Business for employment with
Seller or any of its Affiliates other than in connection with the Business
provided that Seller shall have the right to terminate the 28 Employees
designated by Purchaser listed on Schedule 7.03;
(iii) directly or indirectly, enter into or assume any contract,
agreement, obligation, lease, license or commitment not in the ordinary course
of business of the Business;
(iv) adopt or amend any Welfare Plan or Employee Benefit Plan with
respect to Employees of the Business;
(v) increase the compensation payable to any Employee employed by
Seller or the Company in connection with the operation of the Business other
than in the ordinary course of business of the Business consistent with past
practice of Conferencing;
(vi) pay or incur any management or consulting fee not in the
ordinary
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course of business of the Business consistent with past practice of
Conferencing;
(vii) sell, transfer or otherwise dispose of any material asset or
property other than in the ordinary course of business of the Business;
(viii) amend, terminate or give notice of termination with respect
to any existing material Contract to which Seller or the Company is a party, or
waive any material rights, relating to the Business; or
(ix) directly or indirectly, enter into any material transaction
(including, without limitation, the purchase, sale, lease or exchange of any
property or the rendering of services) with any Affiliate of Seller or the
Company, except for the sale of audio and video conferencing services.
ARTICLE VI. CONDITIONS TO CLOSING
6.01 CONDITIONS TO SELLER'S OBLIGATIONS. The obligation of Seller to
consummate the transaction contemplated hereby is subject to the fulfillment or
written waiver of all of the following conditions on or prior to the Closing
Date, upon the non-fulfillment of any of which this Agreement may, at Seller's
option, be terminated pursuant to and with the effect set forth in Article X.
(a) Each and every representation and warranty made by Purchaser
shall, in all material respects, have been true and correct when made and shall
be true and correct as if originally made on and as of the Closing Date.
(b) All obligations of Purchaser to be performed under this
Agreement through, and including on, the Closing Date shall have been performed
in all material respects.
(c) Seller shall have received all of the agreements,
certificates, documents and
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items specified in Section 8.02.
(d) No suit, proceeding or investigation shall have been commenced
or threatened by any governmental authority or private person on any grounds to
restrain, enjoin or hinder, or to seek material damages on account of, the
consummation of the transaction contemplated hereby.
(e) Any applicable waiting period under the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended (the "HSR Act") and the rules and
regulations thereunder shall have expired or been terminated without action by
the Federal Trade Commission (the "FTC") or The Antitrust Division of The
Department of Justice (the "DoJ") to prevent the consummation of this Agreement.
(f) Purchaser shall have delivered to Seller the Purchase Price.
6.02 CONDITIONS TO PURCHASER'S OBLIGATIONS. The obligation of Purchaser
to consummate the transaction contemplated hereby is subject to the fulfillment
or written waiver of all of the following conditions on or prior to the Closing
Date, upon the non-fulfillment of any of which this Agreement may, at
Purchaser's option, be terminated pursuant to and with the effect set forth in
Article X.
(a) Each and every representation and warranty made by Seller
shall, in all material respects, have been true and correct when made without
regard to any schedule updates furnished by Seller thereafter and shall be true
and correct as if originally made on and as of the Closing Date.
(b) All covenants (including the obligations under Section 5.02)
of Seller and the Company required to be performed under this Agreement through,
and including on, the
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Closing Date shall have been performed in all material respects.
(c) Purchaser shall have received all of the agreements,
certificates, documents and items specified in Section 8.01.
(d) Consents to assignment of the U.S. West Primary Rate Services
Agreements and the U.S. West Rate Stability Plan Agreement shall have been
obtained.
(e) No suit, proceeding or investigation shall have been commenced
or threatened by any governmental authority or private person on any grounds to
restrain, enjoin or hinder, or to seek material damages on account of, the
consummation of the transaction contemplated hereby.
(f) Any applicable waiting period under the HSR Act and the rules
and regulations thereunder shall have expired or been terminated without action
by the FTC or the DoJ to prevent the consummation of this Agreement.
(g) Purchaser shall have received shareholder approval of the
transactions contemplated hereby, which approval Purchaser shall use best
commercial efforts to obtain.
(h) Purchaser shall have obtained financing in an amount
sufficient to consummate the transactions contemplated hereby.
ARTICLE VII. FURTHER AGREEMENTS OF THE PARTIES.
7.01 EXPENSES. Purchaser and Seller shall bear their own respective
expenses incurred in connection with this Agreement and the Purchaser's
Additional Agreements, on the one hand, and Seller's Additional Agreements, on
the other hand (collectively, the "Additional Agreements") and in connection
with all obligations required to be performed by each of them under this
Agreement and the Additional Agreements, except as otherwise specified in this
Agreement or
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the Additional Agreements.
7.02 COOPERATION AFTER CLOSING. From time to time after the Closing,
each party at the other party's request and without further consideration, will
execute and deliver such other instruments of sale, transfer, conveyance and
assignment and take such action as may be reasonably necessary in order to more
effectively transfer, convey and assign to Purchaser, and to confirm Purchaser's
title to, the Shares and the Company's title to the Assets, and to ensure that
either party pays or reimburses the other party for all obligations of the
Business that are the responsibility of the paying or reimbursing party.
7.03 EMPLOYEES. Purchaser shall offer, or shall cause the Company to
offer, the bonuses specified in the Transition Services Agreement to the
Employees of the Company listed therein, payable at the times specified therein.
Seller shall be responsible for and shall pay, and the Company and Purchaser
shall have no obligations whatsoever for, any salary, bonus, sales commissions,
fringe, pension, medical, dental, life or retirement benefits, or the amount of
vacation, holiday or sick days representing the pro-rata amount thereof
attributable to the period after to the Closing Date or other benefits or claims
including without limitation, severance payments and COBRA benefits
(collectively, "Benefits") payable to, or accruable for any employee of Seller
or the Company to the extent any Benefits apply to the period before the Closing
Date. Without limiting the foregoing, Seller shall pay when due its pro rata
share of any bonuses based on annual performance, whether or not accrued prior
to Closing. Seller shall also be responsible for and shall pay, and the Company
and Purchaser shall have no obligation for, any severance payments and COBRA
benefits for 28 of those Employees indicated on Schedule 7.03 who are designated
by Purchaser. Purchaser shall be liable only for such Benefits as may
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be offered by Purchaser and for the amounts relating to service for the Company
or the Purchaser after the Closing Date. Seller agrees that it is its
non-binding intent, to the extent there are job openings, to offer employment
with other companies within the Xxxxxxxx group of companies to the seven
Employees of the Business located in Tulsa, Oklahoma when and as no longer
employed by Purchaser.
7.04 TRANSFER TAXES. Purchaser shall pay all state or local sales,
transfer or like taxes payable in connection with the transactions contemplated
pursuant to this Agreement.
7.05 MAIL. All mail relating specifically to the Business that is
delivered to Seller after the Closing Date shall forthwith be delivered to
Purchaser unless otherwise agreed in writing.
7.06 CONFIDENTIALITY AGREEMENTS. If at any time following the Closing,
Purchaser believes that any person or entity that may have been a prospective
purchaser from Seller of the Business and may have entered into a
confidentiality agreement with Seller and has violated such agreement, Purchaser
may so notify Seller and shall present to Seller reasonable evidence of the
violation. If Seller had entered into a confidentiality agreement with that
prospective purchaser, after Closing, Seller shall assign to Purchaser any
rights of Seller under the confidentiality agreement which are assignable
thereunder. In the event that the assignment of a confidentiality agreement
would constitute a breach thereof, Seller shall take reasonable steps to enforce
such confidentiality agreement, at Purchaser's expense and direction.
7.07 BOOKS AND RECORDS. Seller shall retain no copies of any contracts,
agreements, commitments, books, records, files and other data relating to the
Business, except that Seller may retain copies of those books and records of the
Business required in connection with (a) the preparation of Seller's Tax
Returns, (b) any claims (including insurance with respect thereto) or
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litigation of Seller, and (c) the provision of services under the Transition
Services Agreement, provided that such books and records relating to the
provision of services under the Transition Services Agreement are returned to
Purchaser promptly upon the termination of the Transition Services Agreement.
Seller shall not otherwise use or disclose such books and records. After the
Closing Date, Purchaser shall grant Seller access to the books and records of
the Company only in connection with Seller's performance of its services under
the Transition Services Agreement, for Seller's Tax, audit, claims and
litigation purposes and on reasonable prior notice and during the Company's
regular business hours. Notwithstanding the foregoing, in no event shall
Purchaser be required to retain such books and records for a period in excess of
five (5) years from the Closing Date.
7.08 CONSENTS. Anything in this Agreement to the contrary
notwithstanding, this Agreement shall not constitute an agreement to assign any
Contract, benefit or claim if an attempted assignment or assumption thereof,
without the consent of a third party thereto, would constitute a breach thereof.
To the extent that consent by or approval from any person or entity is required
under any of the Contracts as a result of or in connection with the execution,
delivery or performance of this Agreement and Seller's Additional Agreements and
the transactions contemplated hereby or thereby, in any instance where Seller
has not secured such consent or approval prior to the Closing Date, Seller shall
use its best commercial efforts to obtain any such consent or approval after the
Closing Date until such time as such consent or approval has been obtained. If
such consent is not obtained, or if an attempted assignment would be
ineffective, or would affect the rights of the parties such that the Company
would not receive the benefits of such Contracts from the Closing Date and be
able to perform the obligations under such
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Contracts, then the parties shall cooperate in any manner reasonably designed
for the Company to receive the benefits under such Contracts from the Closing
Date and for the Company to be able to perform the obligations under such
Contracts, to the extent that Purchaser or the Company would have been
responsible therefor hereunder if such consent or approval had been obtained.
Seller shall pay and discharge, and shall indemnify and hold the Company and
Purchaser harmless from and against, any and all reasonable out-of-pocket costs
of Purchaser seeking to obtain or obtaining such consent or approval including,
without limitation, the incremental cost of obtaining alternate arrangements, if
necessary, for the provision of any service which is the subject of such
Contracts. The parties agree that Seller's performance under this Section 7.08
shall not be deemed to violate any non-competition provisions in this Agreement
or the Additional Agreements.
7.09 NON-SOLICITATION. Seller agrees that, without the prior written
consent of Purchaser (in its sole discretion), for a period of two (2) years
from and after the Closing Date (or for a period of one (1) year from and after
the Closing Date with respect to employees terminated by Purchaser) it shall not
employ or solicit for employment any person that is employed by the Company or
Purchaser at any time during that two (2) year period (or one (1) year, if
terminated) in connection with the Business, provided that no such restriction
shall apply to the redundant Employees listed on Schedule 7.03.
7.10 INSURANCE. Seller shall maintain the insurance described on
Schedule 3.27 through and including the Closing Date, at which time such
insurance shall terminate. Purchaser shall be solely responsible for procurement
of insurance after the Closing Date.
7.11 EXPENSES OR ASSETS OF THE BUSINESS. Except for the Assumed
Liabilities, Seller
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shall be responsible for all expenses and liabilities related to the Business
for periods prior to the Closing Date and Purchaser shall be responsible for all
expenses and liabilities related to the Business for periods subsequent to the
Closing Date. In the event Purchaser or the Company, on the one hand, or Seller,
on the other hand, pays an expense that is the responsibility of the other party
pursuant to this Section, the party responsible for such expense shall promptly
reimburse the party that actually paid such expense upon provision of
commercially reasonable documentation of payment of such expense. In the event
that Purchaser or the Company, on the one hand, or Seller, on the other hand,
receives any money or property that belongs to the other in accordance with the
provisions of this Agreement, the party receiving such money or property shall
promptly forward the same to the other party.
7.12 CONFIDENTIALITY AND PUBLICITY. (a) Seller shall maintain in
confidence all Confidential Information in its possession related to the
Business, and shall not disclose such information to a third party (other than
its officers, directors, shareholders and professional advisors with a need to
know and an obligation to treat such information confidentially in the same
fashion as is required under this Agreement) or make any unauthorized use
thereof. Seller shall treat such information with the same degree of care
against disclosure that it affords to its own confidential information, and in
no event less than reasonable care. This obligation of confidential treatment
shall not apply to any information that (i) has become generally available in
the public domain through no wrongful action of Seller; (ii) is hereafter
independently developed by Seller without the use of any Confidential
Information; (iii) is hereafter received from a third party who had the right to
disclose such information to Seller; or (iv) is required to be disclosed to
comply with applicable laws, governmental rules or regulations, subpoenas, or
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court order, provided that with respect to any disclosure of information
pursuant to clause (iv), the party making the disclosure will only do so to the
extent required to comply with such requirements and only after first consulting
with the Purchaser and cooperating with the Purchaser in opposing or limiting
the scope of disclosure. For the purposes of this Agreement, "Confidential
Information" shall mean all information relating to the Business of a
commercial, financial or technical nature. The obligations imposed under this
Section 7.12(a) shall be in force for a period of five years from the Closing
Date.
(b) Purchaser shall keep confidential all Confidential
Information through the Closing Date and, in the event that the Closing does not
occur for any reason, Purchaser shall maintain the confidentiality of such
Confidential Information for a period of five years after the date of this
Agreement.
(c) The parties hereto agree that any and all public
announcements or statements concerning either this Agreement or the consummation
of the transactions contemplated hereby shall be mutually agreed to by the
parties; provided, however, that in the event the parties are unable to agree on
a public statement or announcement and counsel for either party is of the
opinion that such statement or announcement is required by law or by applicable
stock exchange regulations, then such party may issue the legally required
statement or announcement. If required by applicable securities law, the parent
company of Seller may fully disclose the terms of this Agreement and the
Additional Agreements in, and may file copies of this Agreement and the
Additional Agreements as exhibits to, its registration statement with respect to
the initial public offering of a portion of its common stock.
7.13 SECTION 338(h)(10) ELECTION. Purchaser, Company and Seller shall
take all actions
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necessary and appropriate (including timely filing of such forms, tax returns,
elections, schedules and other documents as may be required) to effect and
preserve a timely and valid joint election under Section 338(h)(10) of the Code
and under any comparable provisions of state or local tax law (collectively,
including any amendments, supplements or corrections thereto, the "Section
338(h)(10) Elections") with respect to the acquisition of the Company. Purchaser
shall be responsible for the filing of all forms and documents in connection
with the making of the Section 338(h)(10) Elections, and shall provide the
Seller with copies of such filings. At the request of Purchaser, the Seller
shall execute and deliver to Purchaser within 10 days after such request such
documents or forms as are reasonably requested by Purchaser to complete properly
the Section 338(h)(10) Elections.
(b) The amount paid hereunder for the Shares and the liabilities of the
Company and other relevant items (including restrictive covenants) shall be
allocated among the assets of the Company in accordance with Section 338(b)(5)
of the Code and the Treasury Regulations promulgated thereunder (the "Purchase
Price Allocation"). Subject to any allocation required by the Treasury
Regulations to be made to Class I and Class II assets (as defined therein), the
allocation will be first to tangible assets (including, without limitation,
accounts receivable) and the balance will be allocated to goodwill. Such
allocation will be reflected on an agreed upon schedule at Closing. The parties
shall cooperate in the filing of any forms (including Form 8023(a)) with respect
to such allocation, including any amendments to such forms.
(c) The parties shall file (or cause to be filed) all tax returns in a
manner consistent with the Section 338(h)(10) Elections and the Purchase Price
Allocation, and shall take no position contrary thereto or inconsistent
therewith (including, without limitation, in any amended
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return or claim for refund, any examination or audit by any taxing authority, or
any other proceeding).
7.14 DEFERRED REVENUE-BRIDGES XXXXXXXXX.Xx connection with the Excluded
Liability for Deferred Revenue-Bridge referred to in Section 5.02(a)(iii),
Purchaser shall, pursuant to the terms of the contract, provide conferencing
services to Westinghouse and Siemens Capital at no charge and shall charge
Seller 50% of the full charge for such services when and as used until the
liability is paid in full or expires.
ARTICLE VIII. CLOSING DATE DELIVERIES.
8.01 DOCUMENTS TO BE DELIVERED BY SELLER. At the Closing, Seller shall
execute and deliver to Purchaser the following:
(a) a copy of resolutions duly adopted by the Board of Directors and
sole shareholder of Seller authorizing the execution, delivery and performance
of this Agreement and Seller's Additional Agreements and a certificate of the
secretary or assistant secretary of Seller, dated the Closing Date, stating that
such resolutions were duly adopted and are in full force and effect as of such
date and setting forth the incumbency of each person executing this Agreement,
Seller's Additional Agreements, and any document required by this Section 8.01
on behalf of Seller or Conferencing;
(b) the certificate representing the Shares, together with appropriate
stock powers attached and duly executed in blank, and the minute book, and stock
transfer ledger of the Company.
(c) a Non-Competition Agreement, substantially in the form of Exhibit A
attached hereto (the "Non-Competition Agreement");
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(d) a Conferencing Services Agreement, in form and substance mutually
satisfactory to the parties (the "Conferencing Services Agreement"),
(e) an Events Management Services Agreement, in form and substance
mutually satisfactory to the parties (the "Events Reseller Agreement");
(f) a Transition Services Agreement, substantially in the form of
Exhibit B attached hereto (the "Transition Services Agreement");
(g) an opinion of counsel in form and substance reasonably satisfactory
to Purchaser;
(h) the Schedule of Capital Expenditures pursuant to Section 1.04
hereof;
(i) the resignations of all officers and directors of the Company who
will not be full-time employees of the Company after Closing;
(j) an officer's certificate, dated the Closing Date, stating that the
conditions to Closing contained in Section 6.02 have been fully satisfied and
attaching any updates to the Schedules to this Agreement; and
(k) a good standing certificate of the Company dated as of a date
within five days of the Closing Date.
8.02 DOCUMENTS TO BE DELIVERED BY PURCHASER. At the Closing, Purchaser
shall execute and deliver to Seller the following:
(a) a copy of resolutions adopted by the Board of Directors of
Purchaser authorizing the execution, delivery and performance of this Agreement
and Purchaser's Additional Agreements, and a certificate of the secretary or
assistant secretary of Purchaser, dated the Closing Date, stating that such
resolutions were duly adopted and are in full force and effect at such date, and
setting forth the incumbency of each person executing this Agreement,
Purchaser's
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Additional Agreements and any document required by this Section 8.02 on behalf
of Purchaser;
(b) the Non-Competition Agreement;
(c) the Conferencing Services Agreement;
(d) the Events Reseller Agreement;
(e) the Transition Services Agreement; and
(f) an officer's certificate, dated the Closing Date, stating that the
conditions to Closing contained in Section 6.01 have been fully satisfied.
8.03 FUNDS TO BE DELIVERED. On the Closing Date, Purchaser shall cause
the wire transfer of the funds to be made to Seller as specified in Section
1.02.
ARTICLE IX. INDEMNIFICATION.
9.01 SURVIVAL. All of the provisions of this Agreement shall survive
the Closing for the applicable statute of limitations period, except that the
representations and warranties of Seller, on the one hand, and Purchaser, on the
other, contained in Articles III and IV of this Agreement shall survive for a
period of two years after the Closing Date, provided, however, that the
representations and warranties contained in Sections 3.01, 3.02, 3.03, 3.04, the
first sentence of 3.10 (with respect to title), 3.14, 3.17 and 3.23, 4.01, 4.02
and 4.04 shall survive for the applicable statute of limitations period. The
expiration of any representation or warranty shall have no effect on the
continued validity of any claim if notice was given in accordance with this
Article before the date of such expiration.
9.02 INDEMNIFICATION BY SELLER. Seller shall indemnify Purchaser and
hold Purchaser, Purchaser's subsidiaries and other Affiliates and their
respective officers, directors, employees and shareholders (collectively, the
"Indemnified Purchaser Parties") harmless against and in respect
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of any and all damages, losses, claims, penalties, liabilities, costs and
expenses (including, without limitation, all fines, interest, legal fees and
expenses and amounts paid in settlement) (collectively, "Losses"), that arise
from or are attributable to (and without giving effect to any Tax benefit to the
indemnified party) (i) any misrepresentation by Seller or breach of a warranty
made under Article III hereof, (ii) any breach of any covenant or agreement on
the part of Seller set forth herein or in any of Seller's Additional Agreements,
(iii) other than the Assumed Liabilities, any liabilities of the Seller or the
Company, whether absolute, accrued, contingent or otherwise, disclosed or
undisclosed, or any liabilities or obligations arising in any way from the
conduct of the Business prior to the Closing, including, but not limited to,
federal, state, local or foreign income, sales and use taxes, excise taxes,
payroll taxes or transfer or other taxes relating to the period prior to Closing
Date, (iv) any agreements, contracts, negotiations or other dealings by Seller
with any person other than Purchaser concerning the sale of the Business,
including brokers or potential purchasers, (v) any liabilities in connection
with any litigation of Seller relating to events or transactions occurring prior
to Closing, and (vi) any liability in connection with the Plans, (collectively,
the "Damages"); provided that Seller shall not be required to indemnify an
Indemnified Purchaser Party pursuant to Section 9.02(i) unless and until the
total of all Damages due to misrepresentations by Seller or breaches of
warranties made under Article III suffered by all Indemnified Purchaser Parties
in respect of which Seller is obligated to provide indemnification exceeds One
Hundred Thousand U.S. Dollars (US$100,000.00) (the "Basket Amount"), whereupon
Seller shall be obligated to indemnify any Indemnified Purchaser Party from and
against any and all such Damages in excess of the Basket Amount. The Basket
Amount shall not apply (x) to breaches of the representation and warranties
contained in Sections 3.01,
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3.02, 3.03, 3.04, 3.05 (except it shall apply to Sections 3.05(ii) and 3.05(iii)
with respect to rules or regulations) and 3.10 or (y) to any fraudulent
misrepresentation of Seller contained in Article III hereof. Notwithstanding the
foregoing, Seller's maximum aggregate liability under this Section 9.02 shall
not exceed $39,000,000 less the amount of any adjustments to the Purchase Price
made pursuant to Sections 1.03 or 1.04.
9.03 INDEMNIFICATION BY PURCHASER. Purchaser shall indemnify Seller and
hold Seller, Seller's subsidiaries and other Affiliates and their respective
officers, directors, employees and shareholders harmless against and in respect
of any and all Losses that arise from or are attributable to (and without giving
effect to any tax benefit to the indemnified party) (a) any misrepresentation by
Purchaser or breach of any warranty by Purchaser set forth in Article IV hereof,
(b) any breach of any covenant or agreement on the part of Purchaser set forth
herein or in any of Purchaser's Additional Agreements, (c) the Assumed
Liabilities, (d) liabilities of Purchaser for any transfer tax to be paid by
Purchaser pursuant to Section 7.04 hereof, and (e) all obligations and
liabilities pertaining to the Business arising in any way from the conduct of
the Business after the Closing.
9.04 NOTICE TO THE INDEMNITOR. Promptly after the assertion of any
claim by a third party or occurrence of any event which may give rise to a claim
for indemnification from an indemnifying party ("Indemnitor") under this Article
IX, an indemnified party ("Indemnitee") shall notify the Indemnitor in writing
of such claim, and with respect to claims by third parties, advise the
Indemnitor whether the Indemnitee intends to contest same.
9.05 RIGHT OF PARTIES TO SETTLE OR DEFEND. If the Indemnitee determines
not to contest a claim by a third party, the Indemnitor shall have the right, at
its own expense, to contest and
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defend against such claim. If the Indemnitee determines to contest such claim,
the Indemnitor shall have the right to be represented, at its own expense, by
mutually satisfactory counsel and accountants, and to control the defense of any
such claim; provided, however, that Indemnitee shall have the right to retain
its own counsel, with the fees and expenses to be paid by Indemnitor if
representation of Indemnitee by the counsel retained by Indemnitor would be
inappropriate due to actual or potential differing interests between Indemnitor
and Indemnitee. In any event, Indemnitee may participate in the defense of such
claim, subject to the reasonable direction of the Indemnitor. The Indemnitee
shall make available to the Indemnitor and its attorneys and accountants, at all
reasonable times during normal business hours, all books, records, and other
documents in its possession relating to such claim. The party contesting any
such claim shall be furnished all reasonable assistance in connection therewith
by the other party. If the Indemnitor fails to undertake the defense of or
settle or pay any such third party claim within ten (10) days after the
Indemnitee has given written notice to the Indemnitor advising that the
Indemnitee does not intend to contest such claim, or if the Indemnitor, after
having given notification to the Indemnitee that it intends to contest the
claim, fails within 20 days to defend, settle or pay such claim, then the
Indemnitee may take any and all necessary action to dispose of such claim
including, without limitation, the settlement or full payment thereof upon such
terms as it shall deem appropriate, in its sole discretion, subject to Section
9.06 with respect to any proposed settlement thereof.
9.06 SETTLEMENT PROPOSALS. (a) In the event the Indemnitee desires to
settle any third-party claim (whether or not contested by the Indemnitor), the
Indemnitee shall advise the Indemnitor in writing of the amount it proposes to
pay in settlement thereof (the "Proposed
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Settlement"). If such Proposed Settlement is unsatisfactory to the Indemnitor,
it shall have the right, at its expense, to contest such claim by giving written
notice of such election to the Indemnitee within ten (10) days after the
Indemnitor's receipt of the notice of the Proposed Settlement. If the Indemnitor
does not deliver such written notice within ten (10) days after receipt of such
notice, or if the Indemnitor, after having given such notice to the Indemnitee,
fails forthwith to defend, settle or pay such claim, the Indemnitee may offer
the Proposed Settlement to the third party making such claim. If the Proposed
Settlement is not accepted by the party making such claim, any new Proposed
Settlement figure which the Indemnitee may wish to present to the party making
such claim shall first be presented to the Indemnitor who shall have the right,
subject to the conditions hereinabove set forth in Section 9.05, to contest such
claim. In all such events, the Indemnitor shall indemnify the Indemnitee and
hold it harmless against and from any and all costs of defense, payment or
settlement, including reasonable attorneys' fees incurred in connection
therewith.
(b) The Indemnitor may settle such third-party claim only if it has
agreed to contest the claim in accordance with subsection 9.06(a) above. In the
event the Indemnitor desires to settle such third-party claim, the Indemnitor
shall not without the Indemnitee's prior written consent, (i) settle or
compromise such proceeding, claim or demand, 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 the Indemnitee of a written release from all
liability in respect of such proceeding, claim or demand or (ii) settle or
compromise any such proceeding, claim or demand in any manner that may
materially adversely affect the Indemnitee.
9.07 REIMBURSEMENT. At the time the amount of any liability on the part
of the
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Indemnitor under this Article IX is determined (which in the case of payments to
third persons shall be the earlier of (i) the date of payment by Indemnitee to
such third parties in accordance with the terms of this Agreement or (ii) the
date that a court of competent jurisdiction or arbitration panel shall enter a
final judgment, order or decree (after exhaustion of appeal rights) establishing
such liability), the Indemnitor shall within 30 days of notice from the
Indemnitee, pay to the Indemnitee the amount of the indemnity claim.
ARTICLE X. EFFECT OF TERMINATION/PROCEEDING
10.01 RIGHT TO TERMINATE. This Agreement and the transaction
contemplated hereby may be terminated at any time prior to the Closing by prompt
notice given in accordance with Section 11.04:
(a) by the mutual written consent of Purchaser and Seller; or
(b) by either of such parties if the Closing shall not have
occurred at or before 11:59 p.m. on August 30, 1999, or such later date as is
required in order to comply with any necessary waiting period under the HSR Act;
provided, however, that the right to terminate this Agreement under this Section
10.01(b) shall not be available to any party whose failure to fulfill any
material obligation under this Agreement has been the cause of or results in the
failure of the Closing to occur on or prior to the aforesaid date.
10.02 REMEDIES. In the event of a breach of this Agreement, the
non-breaching party shall not be limited to the remedy of termination of this
Agreement, but shall be entitled to pursue all available legal and equitable
rights and remedies, including the right to specific performance of this
Agreement, and shall be entitled to recover all of its reasonable costs and
expenses incurred in pursuing them (including, without limitation, reasonable
attorney's fees).
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ARTICLE XI. MISCELLANEOUS.
11.01 ENTIRE AGREEMENT. This Agreement, Seller's Additional Agreements
and Purchaser's Additional Agreements (together with the Schedules and Exhibits
hereto and the documents referred to herein) contains, and is intended as, a
complete statement of all of the terms of the arrangements between the parties
with respect to the matters provided for herein, and supersedes any previous
agreements and understandings between the parties with respect to those matters.
11.02 GOVERNING LAW; ARBITRATION. This Agreement shall be governed by,
and construed and enforced in accordance with the laws of the State of Delaware
(without regard to conflicts of law principles for such state). The parties
hereto agree that, upon the written demand of either party, any controversy or
claim arising hereunder, except as provided in Section 1.03, shall be resolved
by submission to binding arbitration by the American Arbitration Association
(the "AAA") in accordance with their then prevailing rules and procedures. Such
arbitration shall be before a panel of three arbitrators, one to be appointed by
Seller, one by Purchaser and one by the AAA. If any such arbitrator is unable or
unwilling to serve as such arbitrator, the person entitled to appoint such
arbitrator shall appoint an alternate arbitrator. Any such arbitration shall
take place at an AAA office located in Wilmington, Delaware. All determinations
and the final decision of the arbitration panel shall be by majority vote and
shall be in writing and shall set forth the factual and legal basis for the
determination and the award. Judgment rendered pursuant to such arbitration
shall be final and binding upon the parties without any right of appeal and may
be entered in any state or federal court of competent jurisdiction. Each party
shall bear its own respective expenses incurred in connection with any
arbitration, except that the arbitrators shall
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have the authority to award reasonable attorney's fees to the prevailing party.
All expenses due to AAA for conducting the arbitration shall be borne fifty
percent (50%) by Seller and fifty percent (50%) by Purchaser.
11.03 AMENDMENT; WAIVER. No provision of this Agreement may be amended
or modified except by an instrument or instruments in writing signed by the
parties hereto. Any party may waive compliance by another with any of the
provisions of this Agreement. No waiver of any provision hereof shall be
construed as a waiver of any other provision or subsequent breach. Any waiver
must be in writing. The failure of any party hereto to enforce at any time any
provision hereof shall not be construed to be a waiver of such provision, nor in
any way to affect the validity hereof or any part hereof or the right of any
party thereafter to enforce each and every such provision.
11.04 NOTICES. All notices and other communications under this
Agreement shall be in writing and shall be deemed given when delivered
personally, seven (7) days after being deposited with the postal service when
mailed by registered mail, return receipt requested, three (3) day after deposit
with a courier when sent by documented overnight delivery service or, to the
extent receipt is confirmed, by facsimile to the parties at the following
addresses (or to such other address as a party may have specified by notice
given to the other party pursuant to this provision):
If to Seller, to it at
Xxxxxxxx Communications, Inc.
Xxx Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telephone No: (000) 000-0000
Telecopy No: (000) 000-0000
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with a copy to
Xxxxxxxx Communications Group, Inc.
Xxx Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxx, XX 00000
Attention: General Counsel
Telephone No: (000) 000-0000
Telecopy No: (000) 000-0000
If to Purchaser, to it at
Genesys
0 xxx Xxxxx Xxxxx
XX 0000
34008 Montpellier Cedex 1
France
Attention: Xxxxxxxx Xxxxxx
Telephone No: 000-00-00-0000-000
Telecopy No: 011-33-46-7062-790
and
Genesys
0 xxx Xxxxx Xxxxx
XX 0000
00000 Xxxxxxxxxxx Cedex 1
France
Attention: Xxxxx Xxxxxx
Telephone No: 000-00-00-0000-000
Telecopy No: 011-33-46-7062-750
with a copy to
Xxxxxxx & Xxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxx, Esq.
Telephone No: (000) 000-0000
Telecopy No: (000) 000-0000
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11.05 SEPARABILITY. If any provision of this Agreement is held by the
AAA or any court of competent jurisdiction to be illegal, invalid or
unenforceable, such provision shall be of no force and effect, but the
illegality, invalidity or unenforceability shall have no effect upon and shall
not impair the enforceability of any other provision of this Agreement.
11.06 ASSIGNMENT AND BINDING EFFECT. None of the parties hereto may
assign any of its rights or delegate any of its duties under this Agreement
without the prior written consent of the others, except that Purchaser may
assign its rights to one or more of its Affiliates and such Affiliate or
Affiliates may assume Purchaser's obligations hereunder, provided that Purchaser
shall remain liable as a guarantor of the obligations of the Affiliate or
Affiliates. All of the terms and provisions of this Agreement shall be binding
on, and shall inure to the benefit of, the respective successors and permitted
assigns of the parties.
11.07 NO BENEFIT TO OTHERS. The representations, warranties, covenants
and agreements contained in this Agreement are for the sole benefit of the
parties hereto and their respective successors and permitted assigns and they
shall not be construed as conferring and are not intended to confer any rights
on any other persons.
11.08 COUNTERPARTS. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original, and each party thereto
may become a party hereto by executing a counterpart hereof. This Agreement and
any counterpart so executed shall be deemed to be one and the same instrument.
The exchange (by facsimile) of facsimile copies of executed counterparts of this
Agreement shall be deemed execution and delivery thereof, provided that receipt
of such facsimile is confirmed in writing. Original copies shall follow by
documented overnight delivery.
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11.09 INTERPRETATION. Article titles and headings to sections are
inserted for convenience of reference only and are not intended to be a part or
to affect the meaning or interpretation hereof. The Schedules and Exhibits
referred to herein shall be construed with and as an integral part of this
Agreement to the same extent as if they were set forth verbatim herein. The
specification of any dollar amount in the representations and warranties
contained in this Agreement or the inclusion of any specific item in any
Schedule hereto is not intended to imply that such amounts or higher or lower
amounts, or the items so included or other items, are or are not material, and
no party hereto shall use the fact of the setting of such amounts or the
inclusion of any such item in any dispute or controversy between the parties as
to whether any obligation, item or matter not described herein or included in a
Schedule is or is not material for purposes hereof. As used herein, "include",
"includes" and "including" are deemed to be followed by "without limitation"
whether or not they are in fact followed by such words or words of like import;
"writing", "written" and comparable terms refer to printing, typing, lithography
and other means of reproducing words in a visible form; references to a person
are also to its successors and permitted assigns; "hereof", "herein",
"hereunder" and comparable terms refer to the entirety hereof and not to any
particular article, section or other subdivision hereof or attachment hereto;
references to any gender include references to the plural and vice versa;
references to this Agreement or other documents are as they may be amended or
supplemented from time to time; references to "Article", "Section" or another
subdivision or to an attachment or "Schedule" are to an article, section or
subdivision hereof or an attachment or "Schedule" hereto; references to
"Generally Accepted Accounting Principles" shall mean generally accepted
accounting principles in the United States.
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IN WITNESS WHEREOF, the undersigned have executed this Stock Purchase
Agreement as of the date first above written.
XXXXXXXX COMMUNICATIONS, INC.
By: /s/ XXXXX X. XXXXXX
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Representative
CONFERENCING ACQUISITION CORPORATION
By: /s/ XXXXX X. XXXXXX
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Representative
GENESYS, S.A.
By: /s/ XXXXXXXX XXXXXX
--------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Chairman & CEO
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