OPTION AGREEMENT
This OPTION AGREEMENT (the "Agreement") dated as of July __, 1998 is made
and entered into by and between the Motor Information Systems Division of Hearst
Business Publishing, Inc., a Delaware corporation ("Seller") and CCC Information
Services, Inc. ("Purchaser").
WHEREAS, Seller has entered into that certain Option and Acquisition
Agreement (the "Option and Acquisition Agreement") dated as of February 6, 1998,
made and entered into by and among Seller, Comp-Est, Inc., an Ohio corporation
("Comp-Est"), and the Stockholders named therein, whereby, Seller has the right
to purchase either (a) from Comp-Est, substantially all of the assets of
Comp-Est (the "Assets") or (b) from the Stockholders (in lieu of such sale of
assets by Comp-Est) all of the shares of common stock, no par value per share
(the "Shares"), of Comp-Est. A copy of the Option and Acquisition Agreement is
attached hereto as Exhibit A. Capitalized terms used herein and not otherwise
defined shall have the meanings set forth in the Option and Acquisition
Agreement;
WHEREAS, Seller wishes to grant an option in favor of Purchaser, and
Purchaser wishes to accept such option, which, in Purchaser's sole discretion,
will permit Purchaser to require Seller to exercise its option under the Option
and Acquisition Agreement and immediately following the Closing under the Option
and Acquisition Agreement to purchase from Seller, upon the terms and conditions
herein set forth, either (a) the Assets or (b) in lieu of such sale of the
Assets, all of the Shares;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I.
OPTION AND PURCHASE PRICE
1.01 Option. On the terms and subject to the conditions set forth in this
Agreement, Seller hereby irrevocably grants to Purchaser the option (the
"Option") (a) if the Asset Election (as hereinafter defined) is given, to
purchase the Assets or (b) if the Stock Election (as hereinafter defined) is
given, to purchase the Shares (in lieu of the Assets), and upon exercise of the
Option by Purchaser as hereinafter provided, if the Asset Election is given,
Seller agrees to sell, transfer, assign, convey and deliver to Purchaser, all of
the right, title and interest as of the Option Closing Date (as defined below)
of Seller in and to the Assets or, if the Stock Election is given, Seller agrees
to sell, transfer, assign, convey and deliver to Purchaser all of the right,
title and interest now or hereafter owned or held by Seller in and to the Shares
in lieu of such sale of Assets by Seller.
1.02 Exercise of Option. The Option may be exercised by Purchaser at any
time during the period beginning on August 6, 1999 and ending on January 5, 2003
(the "Option Expiration Date") by giving notice of exercise (the "Option
Exercise Notice") of the Option on or prior to the Option Expiration Date to
Seller.
ARTICLE II.
PURCHASE AND SALE OF ASSETS
2.01 Purchase of the Assets. If Purchaser delivers the Option Exercise
Notice on or prior to the Option Expiration Date requesting that Seller purchase
the Assets pursuant to the Option and Acquisition Agreement and sell to
Purchaser the Assets (the "Asset Election"), then on the terms and subject to
the conditions set forth in this Agreement and except as provided in Section
2.02 and Section 3.01, on the Option Closing Date, Seller agrees to purchase the
Assets pursuant to the Option and Acquisition Agreement and to sell, transfer,
assign, convey and deliver to Purchaser, and Purchaser agrees, immediately
following the Closing under the Option and Acquisition Agreement, to purchase,
acquire and accept from Seller, all of the right, title and interest as of the
Option Closing Date of Seller in and to the Assets, subject only to changes in
the Assets in the ordinary course of business.
To the extent that assignment under the Option and Acquisition Agreement by
Comp-Est to Seller of any Real Property Lease, Personal Property Lease, Business
Contract or Business License is not permitted or is not permitted without the
consent of any third party, this Agreement shall not be deemed to constitute an
undertaking to assign the same if such consent is not given or if such an
undertaking otherwise would constitute a breach of or cause a loss of benefits
thereunder. Comp-Est has agreed to, and the Stockholders have agreed to cause
Comp-Est to, use its best efforts to obtain any and all such third party
consents. If any third party consent is not obtained before the Closing,
Comp-Est is obligated to cooperate with Seller in any reasonable arrangement
designed to provide to Seller after the Closing the benefits under the
applicable Real Property Lease, Personal Property Lease, Business Contract or
Business License, including enforcement for the benefit of Seller of any and all
rights of Comp-Est against any other Person arising out of breach or
cancellation by such other Person and including, if so requested by Seller,
acting as an agent on behalf of Seller, or as Seller shall otherwise reasonably
require. After the Option Closing, Seller will use its best efforts to ensure
that Comp-Est and the Stockholders comply with such obligations and will
promptly transfer any benefit derived thereunder to Purchaser; provided,
however, that Purchaser shall promptly reimburse Seller for any out of pocket
expenses reasonably incurred by Seller in connection with such efforts.
2.02 Excluded Assets. Any provision of this Agreement to the contrary
notwith-standing, Purchaser shall not acquire and there shall be excluded from
the Assets the Excluded Assets.
2.03 Assumed Liabilities. Except as may be specifically excluded pursuant
to the provisions of this Agreement or the Option and Acquisition Agreement,
subject to the terms and conditions set forth herein, and except as provided in
Section 2.04 and Section 3.01, Purchaser agrees that, on the Option Closing
Date, Purchaser shall assume and thereafter pay, perform or discharge when due
or required to be performed, as the case may be, the Assumed Liabilities,
subject to adjustments in the ordinary course of business.
2.04 Liabilities Not Assumed. Any provision of this Agreement to the
contrary not-withstanding (and without implication that Purchaser is assuming
any liability not expressly excluded and, where applicable, without implication
that any of the following have been included in the Assumed Liabilities), the
Excluded Liabilities are excluded and shall not be assumed or discharged by
Purchaser.
The assumption by Purchaser of the liabilities of Comp-Est herein provided for,
and the transfer thereof by Seller, shall in no way expand the rights or
remedies of any third party against Purchaser or Seller as compared to the
rights and remedies which such third party would have had against Seller had
Purchaser not assumed such liabilities. Without limiting the generality of the
preceding sentence, the assumption by Purchaser of said liabilities shall not
create any third party beneficiary rights.
2.05 Prorations. Purchaser shall pay all amounts required to be paid by
Seller pursuant to Section 2.05 and Section 2.06 of the Option and Acquisition
Agreement, and Seller shall remit to Purchaser all amounts received by Seller
from Comp-Est pursuant to Section 2.05 and Section 2.06 of the Option and
Acquisition Agreement.
2.06 Assets Purchase Price.
(a) Amount. The purchase price (the "Assets Purchase Price") for the Assets
shall be the sum of (i) One Million, Two Hundred and Fifty Thousand Dollars
($1,250,000) (the "Base Cash Payment"), plus (ii) the Revenue Payment (as
defined below) plus (iii) the assumption by Purchaser of the Assumed
Liabilities, plus (iv) any Transfer Taxes paid or payable by Seller pursuant to
this Agreement or the Option and Acquisition Agreement. The Base Cash Payment
and the Revenue Payment shall be payable on the Option Closing Date by bank wire
transfer in immediately available funds to a bank account designated in writing
by Seller not less than three (3) Business Days before the Option Closing Date.
(b) Allocation. At the Option Closing the Assets Purchase Price will be
allocated among the Assets for all purposes (including Tax and financial
accounting purposes) in a manner consistent with Section 1060 of the Code.
Pursuant to the Option and Acquisition Agreement, Comp-Est is responsible for
the preparation and filing of all returns, documents, statements and other forms
that are required to be submitted to any federal, state or local taxing
authority in connection with the Purchase Price Allocation; provided that Seller
shall approve all returns, documents, statements and other forms to be filed
pursuant to the provisions of the Option and Acquisition Agreement. Each of the
parties hereto will not take a position on any Tax Return, before any
governmental agency charged with the collection of any Tax, or in any judicial
proceeding, that is in any way inconsistent with the statements to be prepared
by Comp-Est pursuant to Section 2.07(b) of the Option and Acquisition Agreement
and will cooperate with each other in timely filing, consistent with such
allocation, any reports required (including, without limitation, Form 8594) by
the IRS.
(c) Revenue Payment. For purposes of this Agreement, "Revenue Payment"
means an amount in cash equal to the product of (a) (i) the number of customers
of the Business on the Closing Date determined by reference to the Revenue
Statement multiplied by (ii) the average annual revenue per customer of the
Business for the System, exclusive of Revenues from the sale or leasing of
equipment by Comp-Est, determined by reference to the Revenue Statement and (b)
1.66. The Revenue Payment under this Agreement shall equal the amount of the
Revenue Payment calculated under the Option and Acquisition Agreement.
ARTICLE III.
PURCHASE AND SALE OF SHARES
3.01 Purchase of Shares. If Purchaser delivers the Option Exercise Notice
on or prior to the Option Expiration Date and includes with the Option Exercise
Notice a written notice requesting that Seller purchase the Shares from the
Stockholders pursuant to the Option and Acquisition Agreement and sell to
Purchaser the Shares (the "Stock Election") then, on the Option Closing Date,
Seller will purchase the Shares from the Stockholders pursuant to the Option and
Acquisition Agreement and sell to Purchaser the Shares in lieu of Seller selling
the Assets to Purchaser and Purchaser assuming the Assumed Liabilities pursuant
to Article II. If the Stock Election is given, in lieu of the transactions
described in Article II, Seller agrees to sell to Purchaser, and Purchaser
agrees to purchase from the Stockholders, the Shares free and clear of all
Liens.
3.02 Shares Purchase Price. The purchase price for the Shares (the "Shares
Purchase Price") shall be the sum of (a) the Base Cash Payment, (b) the Revenue
Payment and (c) any Transfer Taxes paid or payable by Seller pursuant to this
Agreement or the Option and Acquisition Agreement. The Shares Purchase Price
shall be payable on the Option Closing Date by bank wire transfer in immediately
available funds to a bank account designated in writing by Seller not less than
three (3) Business Days before the Option Closing Date.
ARTICLE IV.
CLOSING
4.01 Closing. The closing of the transactions contemplated by Article II
or, if the Stock Election is given, Article III (the "Option Closing"), will
take place at the offices of The Hearst Corporation, 000 Xxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, or at such other place as Purchaser and Seller mutually
agree, at 10:00 A.M. local time, on the Closing Date (as defined in the Option
and Acquisition Agreement) (the "Option Closing Date").
ARTICLE V.
CONDITIONS TO OBLIGATIONS OF PURCHASER
If Purchaser delivers the Option Exercise Notice on or prior to the Option
Expiration Date, the obligations of Purchaser to purchase the Assets or the
Shares, as the case may be, are subject to the fulfillment, on or before the
Option Closing Date, of each of the following conditions (all or any of which
may be waived in whole or in part by Purchaser in its sole discretion):
5.01 Option and Acquisition Agreement. The Closing under the Option and
Acquisition Agreement shall have occurred.
5.02 Performance. Seller shall have performed and complied with, in all
material respects, the agreements, covenants and obligations required by this
Agreement to be so performed or complied with by it on or before the Option
Closing Date.
5.03 Conveyancing Documents. If the Stock Election is not given, Seller
shall have executed and delivered to Purchaser an Assignment and Assumption
Agreement (the "Assignment and Assumption Agreement") in substantially the form
of Exhibit B hereto and a Xxxx of Sale (the "Xxxx of Sale") in substantially the
form of Exhibit C hereto, and such further instruments and documents as may be
reasonably requested by Purchaser in order to complete the transfer of the
Assets to Purchaser.
5.04 Stock Certificates. If the Stock Election is given, Seller shall have
delivered to Purchaser stock certificates evidencing the Shares, accompanied by
stock powers executed by Seller in blank, and Seller shall have delivered the
Minute Books to Purchaser.
ARTICLE VI.
CONDITIONS TO OBLIGATIONS OF SELLER
If Purchaser delivers the Option Exercise Notice on or prior to the Option
Expiration Date, the obligations of Seller hereunder are subject to the
fulfillment, on or before the Option Closing Date, of each of the following
conditions (all or any of which may be waived in whole or in part by Seller in
its sole discretion):
6.01 Option and Acquisition Agreement. The Closing under the Option and
Acquisition Agreement shall have occurred.
6.02 Performance. Purchaser shall have performed and complied with, in all
material respects, the agreements, covenants and obligations required by this
Agreement to be so performed or complied with by Purchaser on or before the
Option Closing Date.
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller has received certain representations, warranties and covenants from
Comp-Est and the Stockholders expressly set forth in the Option and Acquisition
Agreement (hereinafter "Covenants"). Seller represents and warrants to Purchaser
that it will seek enforcement of all such Covenants on behalf of Purchaser (at
Purchaser's sole cost and expense, including without limitation the reasonable
fees and expenses of Purchaser's and Seller's attorneys and accountants), and
will remit to Purchaser all sums received by Seller from Comp-Est pursuant to
Article XIV of the Option and Acquisition Agreement after deduction by Seller of
any and all Losses suffered, incurred or sustained by Seller, its Affiliates and
their respective officers, directors, employees and agents with respect thereto,
from and after the date Purchaser delivers the Option Exercise Notice to Seller
and this obligation shall continue for the applicable periods set forth in
Article XIII of the Option and Acquisition Agreement. It is expressly understood
that the provisions of this Article VII are intended to provide Purchaser with
as much of the benefit of the Covenants as legally may be conferred upon
Purchaser by Seller while at the same time ensuring that Seller, its Affiliates
and their respective officers, directors, employees and agents do not incur any
costs or expenses resulting from, arising out of or relating to the Option and
Acquisition Agreement or this Option Agreement, from and after the date
Purchaser delivers the Option Exercise Notice to Seller, which are not
reimbursed by Comp-Est or Purchaser.
ARTICLE VIII.
INDEMNIFICATION
8.01 Indemnification. Purchaser shall indemnify Seller, its Affiliates and
their respective officers, directors, employees and agents in respect of, and
hold each of them harmless from and against, any and all Losses suffered,
incurred or sustained by any of them or to which any of them becomes subject,
resulting from, arising out of or relating to (i) any breach of any covenant or
agreement on the part of Purchaser contained in this Agreement, (ii) if the
Stock Election is not given, any Assumed Liability and (iii) any threatened or
actual Actions or Proceedings, whether civil, criminal, administrative or
investigative arising out of or based upon (A) the execution of this Agreement,
(B) the exercise of the Option, (C) the consummation of the transactions
contemplated hereby, or (D) any Actions or Proceedings under the Option and
Acquisition Agreement arising out of or based upon the execution of, or the
consummation of the transactions contemplated by, this Agreement; provided that
such threatened or actual Action or Proceedings do not directly or indirectly
arise from any act or omission of Seller, its Affiliates and their respective
officers, directors, employees and agents.
8.02 Seller Indemnification. Seller shall indemnify Purchaser, its
Affiliates and their respective officers, directors employees and agents in
respect of, and hold each of them harmless from and against, any and all Losses
suffered, incurred or sustained by any of them or to which any of them becomes
subject, resulting from, arising out of or relating to (1) any breach of any
representation, warranty, covenant or agreement on the part of Seller contained
in this Agreement and (2) any threatened or actual Action or Proceedings whether
civil, criminal, administrative or investigative arising out of or based upon
the execution by Seller of the Option and Acquisition Agreement; provided that
such threatened or actual Action or Proceedings do not directly or indirectly
arise from any act or omission of Purchaser, its Affiliates and their respective
officers, directors, employees and agents.
8.03 Method of Asserting Claims. The party making a claim under this
Article VIII is referred to as the "Indemnified Party" and the party against
whom such claims are asserted under this Article VIII is referred to as the
"Indemnifying Party." All claims by any Indemnified Party under this Article
VIII shall be asserted and resolved as follows:
(a) In the event that any claim or demand for which an Indemnifying Party
would be liable to an Indemnified Party hereunder is asserted against or sought
to be collected from such Indemnified Party by a third party, said Indemnified
Party shall promptly notify in writing the Indemnifying Party of such claim or
demand, specifying the basis for such claim or demand, and the amount or the
estimated amount thereof to the extent then determinable (which estimate shall
not be conclusive of the final amount of such claim and demand; the "Claim -----
Notice"); provided, however, that any failure to give such Claim Notice will not
be deemed a waiver of any rights of the Indemnified Party except to the extent
the rights of the Indemnifying Party are actually prejudiced by such failure.
The Indemnifying Party shall have the right to control the defense of such claim
or demand and shall retain counsel (who shall be reasonably acceptable to the
Indemnified Party) to represent the Indemnified Party and shall pay the
reasonable fees and disbursements of such counsel with regard thereto; provided,
however, that any Indemnified Party is hereby authorized prior to the date on
which it receives written notice from the Indemnifying Party designating such
counsel, to retain counsel, whose reasonable fees and expenses shall be at the
expense of the Indemnifying Party, to file any motion, answer or other pleading
and take such other action which it reasonably shall deem necessary to protect
its interests or those of the Indemnifying Party until the date on which the
Indemnified Party receives such notice from the Indemnifying Party. After the
Indemnifying Party shall retain such counsel, the Indemnified Party shall have
the right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Party. The Indemnifying Party shall
not, in connection with any proceedings or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one such firm for
the Indemnified Party (except to the extent the Indemnified Party retained
counsel to protect its (or the Indemnifying Party's) rights prior to the
selection of counsel by the Indemnifying Party). If requested by the
Indemnifying Party, the Indemnified Party agrees to cooperate with the
Indemnifying Party and its counsel in contesting any claim or demand which the
Indemnifying Party defends. A claim or demand may not be settled by the
Indemnifying Party without the prior written consent of the Indemnified Party
(which consent will not be unreasonably withheld) unless, as part of such
settlement, the Indemnified Party shall receive a full and unconditional release
reasonably satisfactory to the Indemnified Party. If the Indemnifying Party
elects to defend a claim or demand, the Indemnified Party shall not pay or
settle such claim or demand without the consent of the Indemnifying Party.
(b) In the event any Indemnified Party shall have a claim against any
Indemnifying Party hereunder which does not involve a claim or demand being
asserted against or sought to be collected from it by a third party, the
Indemnified Party shall send a Claim Notice with respect to such claim to the
Indemnifying Party.
(c) After delivery of a Claim Notice, so long as any right to
indemnification exists pursuant to this Article VIII, the affected parties each
agree to retain all books and records related to such Claim Notice. In each
instance, the Indemnified Party shall have the right to be kept fully informed
by the Indemnifying Party and its legal counsel with respect to any legal
proceedings. Any information or documents made available to any party hereunder
and designated as confidential by the party providing such information or
documents and which is not otherwise generally available to the public and not
already within the knowledge of the party to whom the information is provided
(unless otherwise covered by the confidentiality provisions of any other
agreement among the parties hereto, or any of them), and except as may be
required by applicable law, shall not be disclosed to any third Person (except
for the representatives of the party being provided with the information, in
which event the party being provided with the information shall request its
representatives not to disclose any such information which it otherwise required
hereunder to be kept confidential).
ARTICLE IX.
TERMINATION
9.01 Termination. This Agreement shall terminate as follows:
(a) on the day following the Option Expiration Date in the event that the
Option Exercise Notice is not delivered on or prior to the Option Expiration
Date in accordance with Section 1.02; or
(b) at any time by mutual written consent of Purchaser and Seller.
9.02 Effect of Termination.
(a) If this Agreement is terminated pursuant to Section 9.01(a), Purchaser
shall pay to Seller, within three (3) business days of the date of termination,
Five Hundred Thousand Dollars ($500,000) by bank wire transfer in immediately
available funds to a bank account designated in writing by Seller on the date of
termination.
(b) If this Agreement is validly terminated pursuant to Section 9.01, (a)
this Agreement will forthwith become null and void, except that the provisions
with respect to the payment in Section 9.02, expenses in Section 10.03 and
confidentiality in Section 10.04 will continue to apply following any such
termination, and (b) except as provided in Section 9.02(a) there will be no
liability or obligation on the part of Seller or Purchaser (or any of their
Affiliates or their respective officers, directors, employees or agents);
provided, however, that if such termination shall result from a willful breach
by a party of the provisions contained in this Agreement, such party shall
remain fully liable for any and all Losses sustained by the other parties hereto
as a result of such breach.
ARTICLE X.
MISCELLANEOUS
10.01 Notices. All notices, requests, consents, waivers and other
communications hereunder must be in writing and will be deemed to have been duly
given only if delivered personally or by facsimile transmission or mailed (first
class postage prepaid) to the parties at the following addresses or facsimile
numbers:
If to Seller, to:
Motor Information Systems Division,
Hearst Business Publishing, Inc.
0000 Xxxxxx Xxxx
Xxxx, Xxxxxxxx 00000
Facsimile No.: 000-000-0000
Attn: Vice President and General Manager
with copies to:
The Hearst Corporation
Office of the General Counsel
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: 000-000-0000
Attn: General Counsel
If to Purchaser, to:
CCC Information Services, Inc.
000 Xxxxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile No.: 000-000-0000
Attn: President
with copies to:
CCC Information Services, Inc.
000 Xxxxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile No.: 000-000-0000
Attn: General Counsel
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section, be deemed given upon receipt, and (iii) if delivered
by mail in the manner described above to the address as provided in this
Section, be deemed given upon receipt (in each case regardless of whether such
notice is received by any other Person to whom a copy of such notice, request or
other communication is to be delivered pursuant to this Section). Any party
from time to time may change its address, facsimile number or other information
for the purpose of notices to that party by giving notice specifying such change
to the other party hereto.
10.02 Entire Agreement. This Agreement supersedes all prior discussions and
agreements between the parties with respect to the subject matter hereof, and
contains the sole and entire agreement between the parties hereto with respect
to the subject matter hereof.
10.03 Expenses. Whether or not the transactions contemplated by this
Agreement shall be consummated, except as expressly provided herein, each of the
parties hereto shall pay its own expenses (including, without limitation,
attorney's and accountants' fees and out-of-pocket expenses) incident to this
Agreement and the transactions contemplated hereby.
10.04 Public Announcements; Confidentiality. No publicity release or public
announcement concerning this Agreement or the transactions contemplated hereby
shall be made by any party hereto or its Affiliates without advance approval
thereof by each of the other parties hereto. While this Agreement is in effect
and after this Agreement terminates, each party hereto and its Affiliates shall
keep confidential, and shall not disclose, the terms of this Agreement or the
Option and Acquisition Agreement to any other Person without the prior written
consent of each other party hereto unless (i) the disclosure is in response to
legal order or subpoena, (ii) the terms are readily ascertainable from public or
published information, or trade sources (without violation of the foregoing
provisions of this sentence), (iii) the disclosure is (A) in connection with any
Action or Proceeding in respect of this Agreement or (B) to a Governmental or
Regulatory Authority the filing with or consent of which is required in
connection with the transactions contemplated by this Agreement or the Option
and Acquisition Agreement or (iv) the disclosure is to any officer, director,
employee or agent of any party hereto or of any of its Affiliates and such
Person needs to know such information for purposes of consummating the
transactions contemplated by or the performance of this Agreement or the Option
and Acquisition Agreement, provided that the disclosing party shall use its best
efforts to cause such officer, director, employee or agent to hold such
information in confidence. Notwithstanding anything herein to the contrary,
Purchaser and Seller agree that Seller shall be entitled to disclose such of the
terms of this Agreement as it deems appropriate, in its sole discretion, to
Comp-Est.
10.05 Further Assurances. At any time and from time to time after the
Closing Date at the request of Purchaser, and without further consideration,
Seller and the Stockholders shall execute and deliver such other instruments of
sale, transfer, conveyance, assignment and confirmation and take such other
action as Purchaser may reasonably deem necessary or desirable in order to
transfer, convey and assign more effectively to Purchaser, the Assets or the
Shares, as the case may be, and to put Purchaser in actual possession and
control of the Assets and to assist Purchaser in exercising all rights with
respect thereto.
10.06 Waiver. Any term or condition of this Agreement may be waived at any
time by the party that is entitled to the benefit thereof, but no such waiver
shall be effective unless set forth in a written instrument duly executed by or
on behalf of the party waiving such term or condition. No waiver by any party of
any term or condition of this Agreement, in any one or more instances, shall be
deemed to be or construed as a waiver of the same or any other term or condition
of this Agreement on any future occasion.
10.07 Amendment. This Agreement may be amended, supplemented or modified
only by a written instrument duly executed by or on behalf of each party hereto.
10.08 No Third-Party Beneficiary. The terms and provisions of this
Agreement are intended solely for the benefit of each party hereto and their
respective successors or permitted assigns, and it is not the intention of the
parties to confer third-party beneficiary rights upon any other Person other
than any Person entitled to indemnity under Article VIII.
10.09 No Assignment; Binding Effect. Neither this Agreement nor any right,
interest or obligation hereunder may be assigned by any party hereto without the
prior written consent of the other party hereto and any attempt to do so will be
void. Notwithstanding the preceding sentence, Purchaser and Seller may assign
any or all of its rights, interests and obligations hereunder to (a) any
successor in interest, prior to the Closing, to all or substantially all of the
assets and properties of Purchaser or Seller, as the case may be, or (b) any
wholly-owned subsidiary of Purchaser or Seller, as the case may be, or any such
successor, in each case without the consent of (but with notice to) the other
party; provided, however, that such party shall remain primarily liable
hereunder following each such assignment referred to in clause (a) or clause -
(b). This Agreement is binding upon, inures to the benefit of and is enforceable
by the parties hereto and their respective successors and permitted assigns.
10.10 Additional Agreements. Without limiting the generality of the
foregoing, Purchaser agrees to perform each and every obligation of Seller to be
performed by Seller following the Closing under the Option and Acquisition
Agreement to the same extent as though references in the Option and Acquisition
Agreement to Seller were to Purchaser.
10.11 Headings. The headings used in this Agreement have been inserted for
convenience of reference only and do not define or limit the provisions hereof.
10.12 Invalid Provisions. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under any present or future Law, and if the
rights or obligations of any party hereto under this Agreement will not be
materially and adversely affected thereby, (a) such provision will be fully
severable, (b) this Agreement will be construed and enforced as if such illegal,
invalid or unenforceable provision had never comprised a part hereof, (c) the
remaining provisions of this Agreement will remain in full force and effect and
will not be affected by the illegal, invalid or unenforceable provision or by
its severance herefrom and (d) in lieu of such illegal, invalid or unenforceable
provision, there will be added automatically as a part of this Agreement a
legal, valid and enforceable provision as similar in terms to such illegal,
invalid or unenforceable provision as may be possible.
10.13 Governing Law. This Agreement shall be governed by and construed in
accordance with the Laws of the State of New York applicable to a Contract
executed and performed in such State without giving effect to the conflicts of
laws principles thereof.
10.14 Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been duty executed and delivered by
the duly authorized officer of each party hereto as of the date first above
written.
HEARST BUSINESS PUBLISHING, INC.
By: /s/ Xxxxx X. Xxxx
-----------------
Name: Xxxxx X. Xxxx
Title: Vice President and General Manager
CCC INFORMATION SERVICES, INC.
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
