Exhibit 10.1
ASSET PURCHASE AGREEMENT
BY AND BETWEEN
MEDIALINK WORLDWIDE INCORPORATED
AND
BACON'S INFORMATION INC.
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DATED DECEMBER 31, 2004
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ARTICLE I. Purchase and Sale of Assets..............................1
1.1 Purchase and Sale of Acquired Assets.........................1
(a) Inventory...........................................2
(b) Fixed Assets........................................2
(c) Accounts Receivable.................................2
(d) Intellectual Property Rights........................2
(e) Prepaid Expenses and Deposits.......................2
(f) Purchase and Sale Orders............................2
(g) Rights under Confidentiality Agreements and
Warranties........................................3
(h) Permits.............................................3
(i) Customer List.......................................3
(j) Contracts...........................................3
(k) Catalogs and Advertising Materials..................3
(l) Business Records....................................3
(m) Goodwill............................................4
1.2 Retained Assets..............................................4
(a) Cash and Cash Equivalents...........................4
(b) Employee Plan Assets................................4
(c) Employment Contracts................................4
(d) Insurance Policies..................................4
(e) Nonassigned Contracts...............................4
(f) Corporate Records...................................4
(g) Tax Refunds.........................................4
(h) Nonassigned Accounts Receivable.....................5
(i) Assets Relating to Retained Assets or Liabilities...5
(j) Other Assets........................................5
1.3 Assignability and Consents...................................5
ARTICLE II. Assignment and Assumption of Liabilities.................6
2.1 Assumption of Liabilities....................................6
(a) Assigned Contracts..................................6
(b) Balance Sheet Obligations...........................6
(c) Unfilled Orders.....................................6
(d) Employee Obligations................................6
2.2 Retained Liabilities.........................................6
(a) Liabilities Relating to Sale of Acquired Assets.....6
(b) Liabilities Relating to Retained Assets.............7
(c) Employee-Related Liabilities........................7
(d) Environmental, Health and Safety Liabilities........7
(e) Litigation..........................................7
(f) Taxes...............................................7
(g) Shutdown Costs......................................8
(h) Post-Closing Liabilities............................8
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ARTICLE III. Purchase Price...........................................8
3.1 Payments and Holdback........................................8
(a) Closing Date Payment................................8
(b) Holdback............................................8
(c) Post-Closing Adjustment.............................8
(d) Holdback Payments...................................9
3.2 Method of Payment............................................9
(a) Payments by Buyer to Seller.........................9
(b) Payment by Seller to Buyer..........................9
3.3 Purchase Price Allocation...................................10
ARTICLE IV. Closing.................................................10
4.1 General.....................................................10
4.2 Documents to Be Delivered by Seller.........................10
4.3 Documents to Be Delivered by Buyer..........................11
ARTICLE V. Representations and Warranties..........................12
5.1 Representations and Warranties of Seller....................12
(a) Organization and Standing; Power and Authority.....12
(b) Conflicts and Defaults.............................12
(c) Acquired Assets; Title to Acquired Assets..........13
(d) Contracts..........................................14
(e) Financial Statements...............................14
(f) Liabilities........................................15
(g) Accounts Receivable and Accounts Payable...........15
(h) Inventories........................................15
(i) Customers and Suppliers............................16
(j) Litigation.........................................16
(k) Legal Compliance...................................16
(l) Intellectual Property..............................16
(m) Permits............................................17
(n) Employee Relations; Collective Bargaining
Agreements.......................................17
(o) Employees and Employee Plans.......................17
(p) Changes in Circumstances...........................18
(q) Taxes..............................................18
(r) Service Warranties.................................19
(s) Insurance..........................................19
(t) Absence of Certain Commercial Practices............19
(u) Books and Records..................................20
(v) Copies of Documents................................20
(w) Insider Interests..................................20
(x) No Intracompany Asset Transfers....................20
(y) Brokers, Finders and Agents........................20
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5.2 Representations and Warranties of Buyer.....................20
(a) Organization and Standing; Power and Authority.....20
(b) Conflicts and Defaults.............................21
(c) Litigation.........................................21
(d) Brokers, Finders and Agents........................21
5.3 Survival....................................................21
ARTICLE VI. Covenants of Seller.....................................21
6.1 Confidentiality.............................................21
6.2 Maintenance of and Access to Records........................22
6.3 Further Assurances; Customer and Supplier Relationships.....22
6.4 Cooperation in Defense of Claims............................22
6.5 Noncompetition..............................................22
ARTICLE VII. Covenants of Buyer......................................24
7.1 Confidentiality.............................................24
7.2 Maintenance of and Access to Records........................24
7.3 Further Assurances..........................................24
7.4 Cooperation in Defense of Claims............................24
ARTICLE VIII. Certain Additional Covenants and Agreements.............25
8.1 Expenses; Transfer Taxes....................................25
8.2 Disclosure..................................................25
8.3 Employee Matters............................................25
8.4 Closing Date Balance Sheets.................................26
8.5 Accounts Receivable.........................................27
8.6 Buyer's Post-Closing Use of Seller's Name...................28
ARTICLE IX. Indemnification.........................................28
9.1 Indemnification by Buyer....................................28
9.2 Indemnification by Seller...................................28
9.3 Notice of Third Party Claim; Defense of Third Party
Claim; Non-Third Party Claim..............................29
9.4 Limitations.................................................30
9.5 Other Undertakings..........................................30
ARTICLE X. Miscellaneous...........................................31
10.1 Amendments..................................................31
10.2 Entire Agreement............................................31
10.3 Governing Law...............................................31
10.4 Notices.....................................................31
10.5 Counterparts................................................32
10.6 Assignment..................................................32
10.7 Waivers.....................................................32
10.8 Third Parties...............................................33
10.9 Schedules and Exhibits......................................33
10.10 Headings....................................................33
10.11 Certain Definitions.........................................33
10.12 Gender and Number...........................................33
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ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT ("Agreement") is made and
entered into as of December 31, 2004 ("Closing Date"), by and between MEDIALINK
WORLDWIDE INCORPORATED, a Delaware corporation ("Seller"), and BACON'S
INFORMATION INC., a Delaware corporation ("Buyer").
W I T N E S S E T H:
WHEREAS, Seller's Delahaye Medialink division is engaged in
the United States in the business of media evaluation and content analysis and
market research services under the Delahaye tradename (all such business and
services conducted by Seller in the United States under the Delahaye tradename
being referred to as the "US Delahaye Business"); and
WHEREAS, Seller desires to sell, assign, transfer and convey
to Buyer, and Buyer desires to purchase and acquire from Seller, on the terms
and subject to the conditions set forth in this Agreement, substantially all of
the assets of the US Delahaye Business; and
WHEREAS, Seller desires to assign to Buyer, and Buyer is
willing to assume, on the terms and subject to the conditions set forth in this
Agreement, certain liabilities and other obligations of the US Delahaye
Business; and
WHEREAS, Buyer is an indirect wholly-owned subsidiary of
Observer AB, Sweden corporation ("Observer");
and
WHEREAS, Romeike Limited, another wholly-owned subsidiary of
Observer, and Medialink UK Limited ("Medialink UK"), a wholly-owned subsidiary
of Seller, are contemporaneously herewith entering into a separate agreement
("UK Agreement") for the sale and purchase of the assets of the media evaluation
and content analysis and market research services business conducted by
Medialink UK in the United Kingdom under the Delahaye tradename (all such
business and services conducted by Medialink UK in the United Kingdom under the
Delahaye tradename, together with the US Delahaye Business, being referred to
collectively as the "Combined Delahaye Business");
NOW, THEREFORE, in consideration of the mutual promises and
agreements contained in this Agreement and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Buyer and Seller hereby agree as follows:
ARTICLE I. PURCHASE AND SALE OF ASSETS
1.1 PURCHASE AND SALE OF ACQUIRED ASSETS. At the Closing (as
hereinafter defined), but effective as of the Effective Time (as hereinafter
defined), and subject to Section 1.2 below, Buyer shall purchase and acquire
from Seller, and Seller shall sell, assign, transfer and convey to Buyer, all of
the assets, rights and interests used, owned, leased or otherwise held by or for
the benefit of Seller exclusively in the operation of or otherwise exclusively
relating to the US Delahaye Business, wherever such assets, rights and interests
may be located and as the same shall exist as of the Effective Time
(collectively, "Acquired Assets"):
(a) INVENTORY. All inventories of supplies relating
exclusively to the US Delahaye Business (collectively, "Inventory" or
"Inventories"), including but not limited to all Inventories located at
Seller's places of business at 000 Xxxxxxxxxxx Xxxxxx, 0xx Xxxxx, Xxxx
Wing, Space A and Space B, Norwalk, Connecticut, and 000 Xxx Xxxxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxx Xxxxxxxxx ("Norwalk Premises" and
"Portsmouth Premises," respectively, and collectively "Premises");
(b) FIXED ASSETS. All machinery and equipment and other
tangible personal property and fixtures exclusively used in the conduct
of or otherwise related to the US Delahaye Business, including but not
limited to computer hardware and other media monitoring and office
equipment, office furniture and other furnishings and all other
tangible personal property set forth on Schedule 1.1(b);
(c) ACCOUNTS RECEIVABLE. All accounts receivable from parties
that are customers of the US Delahaye Business immediately prior to the
Closing, including any unpaid interest accrued thereon and any
collateral or other security relating thereto (collectively, "Assigned
Accounts Receivable");
(d) INTELLECTUAL PROPERTY RIGHTS. To the extent assignable by
Seller, all patents, trademarks (including service marks and common law
trademarks), trade names, trade dress, copyrights, copyrighted and
copyrightable subject matter, data bases, discoveries, inventions,
licenses, software (including software developed or under development
by or for Seller and all object codes, source codes and architecture,
design, system and other related documentation, including the Delahaye
D2 System and the Delahaye CCA System, which have been outsourced to
Net Solutions Europe, Compass, Delahaye Reputation Index, LORE and
Smart Monitoring), technology, trade secrets and other confidential
information and intellectual and similar intangible property rights,
regardless of whether patentable (or otherwise subject to legally
enforceable restrictions or protections against unauthorized third
party usage), and any and all applications for and divisions,
extensions and reissuances of any of the foregoing and any rights
therein, which are in each case exclusively used in the conduct of or
are otherwise exclusively related to the US Delahaye Business and are
in each case listed on Schedule 1.1(d), including but not limited to
the name "Delahaye" and all of Seller's rights, title and interests in
and to the intellectual and intangible property rights described on
Schedule 1.1(d) (collectively, "Intellectual Property Rights");
(e) PREPAID EXPENSES AND DEPOSITS. All advance payments,
deposits, prepaid expenses, surety accounts and other similar assets
relating to the US Delahaye Business, including but not limited to
prepaid deposits with suppliers and utilities;
(f) PURCHASE AND SALE ORDERS. All unfilled purchase and sale
orders relating to the US Delahaye Business and issued or accepted by
Seller in the ordinary course of business consistent with past
practice;
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(g) RIGHTS UNDER CONFIDENTIALITY AGREEMENTS AND WARRANTIES. On
a nonexclusive basis and to the extent assignable by Seller, all
rights, claims and benefits of Seller in, to and under (i) any employee
confidentiality agreements entered into by Seller, and confidentiality
or secrecy agreements entered into by Seller with third parties that
relate to the use or disclosure of information, in each case to the
extent concerning or otherwise specifically relating to the US Delahaye
Business or any of the Acquired Assets subsequent to the Closing and in
effect as of the date of this Agreement and (ii) any express or implied
warranties from the suppliers of goods or services to the extent
specifically relating to the US Delahaye Business for periods after the
Closing, including any coverage rights under product liability or other
insurance maintained by any of such suppliers for the benefit of
Seller;
(h) PERMITS. To the extent transferable, all licenses,
permits, approvals, consents, waivers and variances (collectively,
"Permits") issued by any foreign or domestic federal, state or local
governmental entity or subdivision thereof or any court or other
governmental agency, authority, board, bureau, commission, department
or instrumentality (collectively, "Governmental Authorities")
specifically relating to the US Delahaye Business and used in or
necessary to the operation of the US Delahaye Business;
(i) CUSTOMER LIST. A list of all Persons (as hereinafter
defined) to whom or to which the US Delahaye Business has sold or
otherwise furnished services at any time during the three-year period
ending on the Closing Date;
(j) CONTRACTS. All rights, claims, benefits and other
interests of Seller in, to and under all oral and written contracts and
other agreements, commitments and undertakings that exclusively relate
to the US Delahaye Business or any of the Acquired Assets or Assumed
Liabilities (as hereinafter defined) and are listed and described on
Schedule 1.1(j) (collectively, "Assigned Contracts"), including but not
limited to any claims and indemnification rights that Seller may have
against a third party under any Assigned Contract or any other Contract
(as hereinafter defined) relating to the acquisition by Seller of any
of the Acquired Assets;
(k) CATALOGS AND ADVERTISING MATERIALS. All promotional and
advertising materials to the extent specifically relating to the US
Delahaye Business, including but not limited to all catalogs,
brochures, handbooks, manuals and other such materials;
(l) BUSINESS RECORDS. Subject to Section 8.3(c), all books and
records specifically relating to the US Delahaye Business, including
but not limited to all forms, files, employment records, correspondence
and invoices, all technical, procedural and accounting manuals, all
summaries, studies, reports, projections and analyses and all other
books and records specifically relating to the US Delahaye Business or
any of the Acquired Assets or Assumed Liabilities, and any confidential
information specifically relating to the US Delahaye Business that has
been reduced to writing or stored electronically or otherwise, provided
that Seller shall be entitled to retain copies of all such books and
records; and
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(m) GOODWILL. The goodwill of the US Delahaye Business as a
going concern.
1.2 RETAINED ASSETS. Notwithstanding anything in Section 1.1
to the contrary, the following assets shall be retained by Seller, and Buyer
shall not be obligated to purchase or acquire or deemed to have purchased or
acquired any interest whatsoever in any of the following assets (collectively,
"Retained Assets"):
(a) CASH AND CASH EQUIVALENTS. All cash, cash equivalents and
marketable securities, including cash in transit and cash, cash
equivalents and marketable securities in lock boxes or on deposit with
or otherwise held by any financial institution;
(b) EMPLOYEE PLAN ASSETS. All rights and interests of Seller
under, and any funds and other property held in any trust or other
funding vehicle pursuant to, any "employee benefit plan" (within the
meaning of Section 3(3) of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA")) or any other bonus, stock purchase,
stock option, stock appreciation, termination, severance, lay-off,
leave of absence, disability, insurance, pension, profit sharing,
retirement, vacation or holiday pay, workers compensation, deferred
compensation or other employee or welfare benefit plan, agreement or
arrangement of Seller applicable to current or former employees of
Seller (collectively, "Employee Plans");
(c) EMPLOYMENT CONTRACTS. Except as otherwise provided in
clause (i) of Section 1.1(g), all of the rights and interests of Seller
under any and all Contracts (other than any collective bargaining
agreement(s)) relating to the employment of any employee of, or the
engagement of any consultant to, Seller (collectively, "Employment
Contracts") (it being understood that Seller will also retain all of
its rights to enforce any employee confidentiality agreements entered
into by Seller);
(d) INSURANCE POLICIES. Subject to clause (ii) of Section
1.1(g), all rights, claims, benefits and other interests of Seller in,
to and under any and all insurance policies maintained by or for the
benefit of Seller;
(e) NONASSIGNED CONTRACTS. Subject to Section 1.1(j) regarding
claims and indemnification rights that Seller may have against a third
party under any Contract relating to the acquisition by Seller of any
of the Acquired Assets, all of the rights and interests of Seller in,
to or under any oral or written contract or other agreement, commitment
or undertaking that is not set forth on Schedule 1.1(j), including the
real property leases relating to the Norwalk Premises (collectively,
"Nonassigned Contracts," and together with the Assigned Contracts,
"Contracts");
(f) CORPORATE RECORDS. Seller's minute books, stock transfer
books and stock ledger and corporate seal;
(g) TAX REFUNDS. Any tax refunds relating to periods prior to
the Closing Date;
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(h) NONASSIGNED ACCOUNTS RECEIVABLE. The accounts receivable
from parties that had ceased to be active customers of the US Delahaye
Business prior to the Closing, which are listed on Schedule 1.2(h).
(i) ASSETS RELATING TO RETAINED ASSETS OR LIABILITIES. The
rights of Seller in, to and under any contracts or agreements, and all
claims, rights and causes of actions, related to any Retained Asset or
Retained Liability; and
(j) OTHER ASSETS. Any and all assets, properties, rights,
claims and businesses not specifically relating to the US Delahaye
Business, including without limitation each of the assets listed on
Schedule 1.2.
1.3 ASSIGNABILITY AND CONSENTS.
(a) REQUIRED CONSENTS. Schedule 1.3(a) sets forth a list of
all Acquired Assets (including Permits and Assigned Contracts) that are
nonassignable or nontransferable or cannot be subleased to Buyer without the
consent of some other individual, association, corporation, joint stock company,
joint venture, limited liability company, partnership, trust or Governmental
Authority or other entity or enterprise (collectively, "Persons"). Except as set
forth on Schedule 1.3(a), Seller (i) has commenced and shall continue to take,
or cause to be taken by others, reasonable actions required to obtain or
satisfy, at the earliest practicable date, all consents, approvals,
authorizations, novations, requirements (including filing and registration
requirements), waivers and agreements (collectively, "Consents") from any Person
or Persons necessary to authorize, approve or permit the full and complete sale,
assignment, transfer, conveyance or sublease of the Acquired Assets (or any
interest therein) and to consummate and make effective the transactions
contemplated by this Agreement and (ii) after the Closing Date, shall continue
to make reasonable efforts to facilitate the full and expeditious transfer of
legal title to the Acquired Assets (or any interest therein) in accordance with
this Agreement (it being understood, however, that Seller shall not be required
to pay any fees or other sums of money to obtain such Consents, except any such
fees and other sums of money as shall have become due and payable in the
ordinary course of business prior to the Closing Date).
(b) NONASSIGNABLE ASSETS. Anything in this Agreement to the
contrary notwithstanding, this Agreement shall not constitute an Agreement to
sell, assign, transfer, convey or sublease any Acquired Asset, including any
Permit and any Assigned Contract, if an attempted sale, assignment, transfer,
conveyance or sublease thereof without the Consent of another Person or Persons
would constitute a breach of, or in any way affect the rights of Seller or Buyer
with respect to, such Acquired Asset (any such Acquired Asset being referred to
as a "Nonassignable Asset"). Except as set forth on Schedule 1.3(a), Seller
shall use its reasonable efforts, and Buyer shall cooperate with Seller in all
reasonable respects, to obtain and satisfy all Consents and to resolve all
impracticalities of sale, assignment, transfer, conveyance or sublease necessary
to sell, assign, transfer, convey or sublease any and all Nonassignable Assets
(or any interest therein) in accordance with this Agreement (it being
understood, however, that Seller shall not be required to pay any fees or other
sums of money to obtain such Consents, except any such fees and other sums of
money as shall have become due and payable in the ordinary course of business
prior to the Closing Date). If any such Consents are not obtained and satisfied
or if an attempted sale, assignment, transfer, conveyance or sublease would be
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ineffective, Seller and any appropriate Affiliate or Affiliates of Seller shall
at the Closing enter into such arrangements (including related written
agreements) as Buyer may reasonably request in order to provide to Buyer the
benefit of any and all such Nonassignable Assets (it being understood that any
such arrangement may include obligations imposed on Seller and any such
Affiliate or Affiliates to promptly pay to Buyer when received all monies and
other items of value received by Seller and any of such Affiliates under any and
all such Nonassignable Assets).
ARTICLE II. ASSIGNMENT AND ASSUMPTION OF LIABILITIES
2.1 ASSUMPTION OF LIABILITIES. At the Closing but effective as
of the Effective Time, Buyer shall assume, and shall thereafter pay, perform and
discharge as and when due the following (collectively, "Assumed Liabilities"):
(a) ASSIGNED CONTRACTS. The liabilities and obligations of
Seller arising under the terms of Assigned Contracts to the extent that
such liabilities and obligations arise or accrue after the Closing Date
in the ordinary and normal course of business and consistent with the
representations, warranties, covenants and agreements of Seller set
forth in this Agreement, provided that Buyer shall not assume or be
liable or otherwise responsible for any such liability or obligation
that arises or results directly from any breach or default by Seller of
such Assigned Contracts prior to the Closing Date (it being understood
that all such liabilities and obligations that arise or result directly
from breaches by Seller of, or defaults by Seller under, the Assigned
Contracts prior to the Closing Date shall constitute Retained
Liabilities (as hereinafter defined));
(b) BALANCE SHEET OBLIGATIONS. All liabilities and obligations
of Seller reflected or reserved against on the Pre-Closing Balance
Sheet (as hereinafter defined), as such liabilities and obligations are
modified or changed between the Pre-Closing Balance Sheet Date and the
Closing Date in the ordinary course of business without violation of
Section 5.1(p) below;
(c) UNFILLED ORDERS. All liabilities and obligations of Seller
in respect of unfilled purchase and sale orders relating to the US
Delahaye Business and arising in the ordinary course of business
without violation of Section 5.1(p) below; and
(d) EMPLOYEE OBLIGATIONS. The severance obligations to
employees of Seller specifically assumed by Buyer under Section 8.3(b).
2.2 RETAINED LIABILITIES. Except as provided in Section 2.1,
Seller shall retain, and Buyer shall not assume or be responsible or liable for,
any liabilities or obligations of Seller, whether known or unknown, fixed,
contingent or otherwise (collectively, "Retained Liabilities"), including but
not limited to the following:
(a) LIABILITIES RELATING TO SALE OF ACQUIRED ASSETS. All
liabilities and obligations of Seller or any of its Affiliates, or
their respective shareholders, directors, officers, employees or
agents, arising out of or otherwise relating to this Agreement or the
transactions contemplated hereby, whether incurred on or before or
after the Closing Date, including but not limited to all finder's or
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broker's fees and expenses and any and all fees and expenses of any
attorneys, accountants or other professionals retained by or on behalf
of Seller or any of its Affiliates;
(b) LIABILITIES RELATING TO RETAINED ASSETS. All liabilities
and obligations relating to, or based on events or conditions occurring
or existing in connection with or arising out of, any and all assets,
properties, rights and interests that are not being acquired by Buyer
hereunder, including but not limited to the Retained Assets;
(c) EMPLOYEE-RELATED LIABILITIES. Except as set forth in
Section 8.3(b), all liabilities and obligations to any persons at any
time employed by Seller or any of its Affiliates or their respective
predecessors-in-interest, or to the spouses, children or other
dependents or beneficiaries of any such persons, with respect to events
or circumstances occurring or existing at any time prior to the
Closing, whenever such claims mature or are asserted, including but not
limited to all liabilities and obligations arising (i) under any
Employee Plans, (ii) under any employment, wage or hour restriction,
discrimination, equal opportunity, immigration and naturalization or
plant closing laws, (iii) under any collective bargaining laws,
agreements or arrangements, and (iv) in connection with any workers'
compensation or any other employee accident, disability, health or
safety claims;
(d) ENVIRONMENTAL, HEALTH AND SAFETY LIABILITIES. All
liabilities and obligations relating to the US Delahaye Business or any
assets (including Acquired Assets), properties, rights or interests
associated with the US Delahaye Business at any time prior to the
Closing Date and based on events or conditions occurring or existing
prior to the Closing Date and arising out of or relating to (i) any
dispute relating to services rendered, including but not limited to
claims for refunds, (ii) claims relating to the environment or employee
health and safety, including claims relating to damage to the
environment, the storage, handling or disposal of hazardous materials,
substances or waste, or the death, disease, injury or sickness of any
person, or (iii) noncompliance with any Laws relating to any of the
foregoing;
(e) LITIGATION. All liabilities and obligations relating to
any litigation, action, claim, investigation, suit or other proceeding,
pending on the date of this Agreement or commenced hereafter, to the
extent that such liabilities or obligations arise directly out of or
otherwise relate directly to (i) the operation of the US Delahaye
Business by Seller or any of its Affiliates or any of their respective
predecessors-in-interest prior to the Closing Date or (ii) the
ownership, possession, use, operation or sale or other disposition of
any assets (including Acquired Assets), properties, rights or interests
associated with the US Delahaye Business prior to the Closing Date;
(f) TAXES. All liabilities and obligations of Seller or any of
its Affiliates or any of their respective predecessors-in-interest for
any Taxes (as hereinafter defined) due or becoming due by reason of the
conduct of the US Delahaye Business prior to the Effective Time, the
ownership, possession, use, operation or sale or other disposition of
any assets (including Acquired Assets), properties, rights or interests
associated with the US Delahaye Business, including but not limited to
(i) Taxes attributable to employee withholding tax obligations, (ii)
Taxes imposed on or accruing as a result of the purchase and sale of
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the Acquired Assets pursuant to this Agreement, and (iii) Taxes
attributable to or resulting from recapture of depreciation or other
tax benefit items or otherwise arising from or relating to any of the
transactions contemplated by this Agreement;
(g) SHUTDOWN COSTS. Subject to Buyer's fulfillment of its
obligations under Section 8.3(b), any liabilities or obligations
relating to, or based in whole or in part on events or conditions
occurring or existing in connection with or arising out of, the
shutdown of any of the operations and facilities utilized by Seller in
connection with the US Delahaye Business or otherwise as of the
Effective Time, including but not limited to any action that could be
construed as a "plant closing" or "mass layoff" (as those terms are
defined in the Worker Adjustment and Retraining Notification Act, 29
U.S.C. xx.xx. 2101-2109 ("WARN")), or any "employment loss" (as defined
in WARN) that any employee of Seller or any of its Affiliates may
suffer or may be deemed to suffer; and
(h) POST-CLOSING LIABILITIES. All liabilities and obligations
first incurred by Seller or its Affiliates or their respective
shareholders, directors, officers, employees or agents after the
Closing Date and not relating to (i) any of the Assumed Liabilities or
(ii) the operation of the US Delahaye Business by Buyer after the
Closing.
ARTICLE III. PURCHASE PRICE
3.1 PAYMENTS AND HOLDBACK. Subject to the Holdback described
in subsection (b) of this Section 3.1 and subject to adjustment pursuant to the
provisions of subsection (c) of this Section 3.1 and reduction pursuant to the
provisions of subsection (d) of this Section 3.1, Buyer shall pay $6,350,000
("Unadjusted Purchase Price," and as so adjusted and reduced, "Adjusted Purchase
Price") in consideration for the transfer of the Acquired Assets, as follows:
(a) CLOSING DATE PAYMENT. On the Closing Date, Buyer shall pay
to Seller $6,050,000 ("Closing Date Payment").
(b) HOLDBACK. $300,000 of the Unadjusted Purchase Price shall
be withheld by Buyer (such $300,000 being referred to as the
"Holdback") as security for any payment to be made by Seller pursuant
to Section 3.1(c)(ii) and Seller's indemnification obligations under
Section 9.2 and shall be paid in accordance with Section 3.1(d).
(c) POST-CLOSING ADJUSTMENT. Within five days following the
delivery of the Preliminary Closing Date Balance Sheet (as hereinafter
defined) pursuant to Section 8.4(a), if the "working capital" (as
hereinafter defined) of the Combined Delahaye Business as of the
Closing Date, as reflected on the Preliminary Closing Date Balance
Sheet ("Preliminary Closing Date Working Capital"), exceeds $965,000
("Target Working Capital"), Buyer shall pay to Seller cash in the
amount equal to such excess ("Initial Working Capital Excess"). Within
five days following the determination of the Final Closing Date Balance
Sheet (as hereinafter defined) pursuant to Section 8.4(b):
(i) Additional Working Capital Excess. If the working
capital of the Combined Delahaye Business as of the Closing Date, as
reflected on the Final Closing Date Balance Sheet ("Final Closing Date
8
Working Capital"), exceeds Target Working Capital, Buyer shall pay to
Seller cash in the amount equal to the amount of such excess, less the
amount of any Initial Working Capital Excess; or
(ii) Working Capital Shortfall. If the Target Working
Capital exceeds the Final Closing Date Working Capital, Seller shall
pay to Buyer cash in the amount equal to such excess (to the extent
such amount is not applied against the Holdback as described in Section
3.1(d)).
For the purposes of this Agreement, the Preliminary Closing Date
Balance Sheet and the Final Closing Date Balance Sheet, "working
capital" shall mean the amount equal to the remainder of the current
assets (excluding Cash) of the Combined Delahaye Business as of the
Closing Date, minus the current liabilities of the Combined Delahaye
Business as of the Closing Date, and Closing Date Working Capital shall
include only such Assigned Accounts Receivable (which, for the purposes
of this Section 3.1(c), shall also include the Assigned Accounts
Receivable under the UK Agreement) as are actually collected during the
180 days immediately following the Closing Date and shall be calculated
without regard to any bad debt reserve.
(d) HOLDBACK PAYMENTS. Within five days following the
determination of the Final Closing Date Balance Sheet pursuant to
Section 8.4, Buyer shall pay to Seller the amount equal to the positive
remainder, if any, of (i) the Holdback minus (ii) the sum of (1) the
amount of any payment to be made by Seller pursuant to Section
3.1(c)(ii), (2) the aggregate amount of all Liabilities (as hereinafter
defined) for which Buyer shall have been theretofore indemnified
pursuant to Section 9.2 and not otherwise paid by Seller and (3) a
reasonable reserve, as determined by Buyer in good faith, for any and
all then outstanding indemnifiable claims under Section 9.2 for which
notice shall have been given during the 180 days immediately following
the Closing Date. Thereafter, upon settlement or other final
disposition of any and all such outstanding claims in accordance with
this Agreement, any amounts owing to Buyer pursuant to the settlement
or other final disposition of such claims shall be charged against the
Holdback, and Buyer shall then pay to Seller any remaining portion of
the Holdback. Any payment to be made pursuant to this Section 3.1(d)
shall include simple interest on the amount of such payment at the rate
of five percent per annum from the Closing Date to the date of payment
of such amount.
3.2 METHOD OF PAYMENT. Payments to be made pursuant to Section
3.1 shall be made by bank wire transfer of immediately available funds as
follows:
(a) PAYMENTS BY BUYER TO SELLER. The Closing Date Payment and
any and all other payments to be made by Buyer to Seller pursuant to
Section 3.1(c)(i) and Section 3.1(d) shall be made to the account
designated by Seller to Buyer in writing; and
(b) PAYMENT BY SELLER TO BUYER. Any payment to be made by
Seller to Buyer pursuant to Section 3.1(c)(ii) shall be made to the
account designated by Buyer to Seller in writing.
9
3.3 PURCHASE PRICE ALLOCATION. The Adjusted Purchase Price
represents the amount agreed upon by the parties to be the aggregate value of
the Acquired Assets and shall be allocated among the Acquired Assets in
accordance with their respective values, which the parties have agreed shall be
as set forth on Schedule 3.3 (as modified to reflect any adjustments and
reductions pursuant to Section 3.1(c) and Section 3.1(d), respectively). Each of
the parties shall report the purchase and sale of the Acquired Assets, including
but not limited to in all Tax (as hereinafter defined) returns and reports
prepared and filed by or for Buyer or Seller (including but not limited to
Internal Revenue Service Form 8594), in accordance with the allocation described
in this Section 3.3.
ARTICLE IV. CLOSING
4.1 GENERAL. As used in this Agreement, the "Closing" means
the time at which Buyer and Seller consummate the purchase and sale of the
Acquired Assets, and the assignment and assumption of the Assumed Liabilities,
by executing and delivering this Agreement and the other documents, instruments
and agreements to be executed and delivered by Buyer and Seller pursuant to this
Agreement. The Closing shall occur on the Closing Date; provided, however, that
legal and equitable title and risk of loss with respect to the Acquired Assets
shall be deemed to pass from Seller to Buyer, and the transfer of the Acquired
Assets from Seller to Buyer and the transfer of the Assumed Liabilities from
Seller to Buyer shall be deemed effective for Tax, accounting and other
computational purposes, at 11:59 PM (New York, New York, time) on the Closing
Date ("Effective Time").
4.2 DOCUMENTS TO BE DELIVERED BY SELLER. At the Closing and as
a condition thereof, Seller shall deliver to Buyer, unless otherwise waived by
Buyer:
(a) copies of the resolutions of Seller's board of directors
authorizing and approving this Agreement and all transactions and other
documents, instruments and agreements contemplated hereby, a copy of
Seller's certificate of incorporation, as certified by the Secretary of
State of Delaware as of a date not more than ten days prior to the
Closing Date, and a copy of Seller's bylaws, as certified in each case
by a duly authorized officer of Seller to be true, correct and complete
and in full force and effect and unmodified as of the Closing Date;
(b) a xxxx of sale transferring the Acquired Assets from
Seller to Buyer, free and clear of any and all liens, equities, claims,
prior assignments, mortgages, charges, security interests, pledges,
conditional sales contracts, collateral security arrangements and other
title retention arrangements, restrictions and encumbrances whatsoever
(collectively, "Liens"), except Permitted Liens (as hereinafter
defined);
(c) except as otherwise set forth in Schedule 1.3(a), copies
of all Consents to the transfer, assignment or sublease to Buyer of
each Acquired Asset (including but not limited to Permits and Assigned
Contracts) that requires such Consent;
(d) instruments of assignment by Seller to Buyer of all
trademarks, trade names, service marks, patents and copyrights (and all
10
applications for, and extensions and reissuances of, any of the
foregoing and rights therein) identified on Schedule 1.1(d) hereto;
(e) good standing certificates for Seller from the State of
Delaware and from the appropriate Governmental Authorities in each
jurisdiction in which Seller is qualified to do business as a foreign
corporation with respect to the conduct of activities relating to the
US Delahaye Business or the ownership, possession, use or operation of
any of the Acquired Assets, dated in each case not more than ten days
prior to the Closing Date;
(f) releases, including but not limited to termination
statements under the Uniform Commercial Code of any financing
statements filed against any Acquired Assets, evidencing discharge,
removal and termination of all Liens (except Permitted Liens) to which
the Acquired Assets are subject, which shall be effective at or prior
to the Closing;
(g) employment agreements between Buyer and each of Xxx Xxxxx,
Xxxxx Xxxxxxx and Xxxx Xxxxxx in the forms attached hereto as Exhibit
A, Exhibit B and Exhibit C, respectively (collectively, "Employment
Agreements"), duly executed by Messrs. Xxxxx, Xxxxxxx and Xxxxxx;
(h) sublease between Buyer and Seller for the Norwalk Premises
in the form attached hereto as Exhibit D ("Norwalk Sublease"), duly
executed on behalf of Seller;
(i) assignment and assumption of lease among Buyer, Seller and
the landlord for the Portsmouth Premises in the form attached hereto as
Exhibit E ("Portsmouth Lease Assignment"), duly executed by Seller and
the landlord;
(j) an exemption certificate described in Section 1445(b)(2)
of the Internal Revenue Code of 1986, as amended ("Code"); and
(k) such other deeds, bills of sale, endorsements,
assignments, affidavits and other good and sufficient instruments of
sale, assignment, transfer and conveyance in form and substance
satisfactory to Buyer and its counsel, as are required to effectively
vest in Buyer good and marketable title in and to all of the Acquired
Assets, free and clear of any and all Liens except Permitted Liens.
4.3 DOCUMENTS TO BE DELIVERED BY BUYER. At the Closing and as
a condition thereof, Buyer shall deliver to Seller, unless otherwise waived by
Seller:
(a) a copy of the resolutions of Buyer's board of directors
authorizing and approving this Agreement and all transactions and other
documents, instruments and agreements contemplated hereby, a copy of
Buyer's certificate of incorporation, as certified by the Secretary of
State of Delaware as of a date not more than ten days prior to the
Closing Date, and a copy of Buyer's bylaws, as certified in each case
by a duly authorized officer of Buyer to be true, correct and complete
and in full force and effect and unmodified as of the Closing Date;
11
(b) good standing certificate for Buyer from the State of
Delaware, dated not more than ten days prior to the Closing Date;
(c) the Employment Agreements, duly executed on behalf of
Buyer;
(d) the Norwalk Sublease, duly executed on behalf of Buyer;
(e) the Portsmouth Lease Assignment, duly executed on behalf
of Buyer; and
(f) the parent company guaranty in the form attached hereto as
Exhibit F, duly executed on behalf of Observer.
ARTICLE V. REPRESENTATIONS AND WARRANTIES
5.1 REPRESENTATIONS AND WARRANTIES OF SELLER. Subject only to
those exceptions and qualifications listed and described on the Schedules
attached to this Agreement, Seller hereby represents and warrants to Buyer that,
unless otherwise indicated, as of the Closing Date:
(a) ORGANIZATION AND STANDING; POWER AND AUTHORITY. Seller is
a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has full corporate power
and authority to operate the US Delahaye Business, to own or lease the
Acquired Assets, to carry on the US Delahaye Business as it is now
being conducted, and to enter into and perform this Agreement and the
transactions and other agreements and instruments contemplated by this
Agreement. Seller is the only business enterprise, firm or corporation
through which the US Delahaye Business is conducted, or which owns,
leases or uses assets related to the US Delahaye Business. Seller is
duly qualified or licensed to do business as a foreign corporation and
is in good standing in each jurisdiction in which the ownership or
lease of the Acquired Assets or the operation of the US Delahaye
Business requires such qualification, except where the failure to
obtain such qualification or license to do business would not have a
materially adverse effect on the US Delahaye Business. This Agreement
and each of the other agreements and instruments executed and
delivered, or to be executed and delivered, in connection herewith
(collectively, "Transaction Documents") by Seller have been (or, upon
execution thereof, will be) duly executed and delivered by, and
constitute (or, upon execution thereof, will constitute) the valid and
binding obligations of, Seller, enforceable in accordance with their
respective terms. This Agreement and the transactions and other
agreements and instruments contemplated hereby have been duly approved
by the board of directors of Seller.
(b) CONFLICTS AND DEFAULTS. Except as set forth on Schedule
5.1(b), neither the execution and delivery of this Agreement and the
other Transaction Documents by Seller nor the performance by Seller of
the transactions contemplated hereby or thereby will (i) violate,
conflict with, or constitute a default under any provision of Seller's
certificate of incorporation or bylaws or any provisions of, or result
in the acceleration of any obligation under, any contract, sales
commitment, license, purchase order, security agreement, mortgage,
note, deed, lien, lease, or other instrument or agreement (including
but not limited to the Contracts), or any Law (as hereinafter defined),
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relating to the US Delahaye Business or any of the Acquired Assets or
by which Seller or any of the Acquired Assets are bound, (ii) result in
the creation or imposition of any Lien or other claim in favor of any
third Person against any of the Acquired Assets, (iii) constitute an
event that, after notice or passage of time or both, would result in
any such violation, conflict, default (except defaults that would not
individually or in the aggregate have a material adverse effect),
acceleration, or creation or imposition of any Lien or other claim or
(iv) constitute an event that, after notice or passage of time or both,
would create, or cause to be exercisable or enforceable, any option,
agreement or right of any kind to purchase any of the Acquired Assets.
Except as set forth on Schedule 1.3(a), no Consent will be required to
be obtained or satisfied for the continued performance by Buyer
following the Closing of any Assigned Contract.
(c) ACQUIRED ASSETS; TITLE TO ACQUIRED ASSETS. Except for
general corporate assets of Seller pertaining to Seller's businesses as
a whole or as set forth on Schedule 5.1(c), the Acquired Assets are the
only assets, properties, rights and interests used by Seller in
connection with the US Delahaye Business and constitute all of the
assets, properties, rights and interests necessary to conduct the US
Delahaye Business in substantially the same manner as conducted by
Seller prior to the Closing Date. Except as set forth on Schedule
5.1(c), none of the fixed assets included in the Acquired Assets have
any defects or are in need of maintenance or repair, except for
ordinary wear and tear and ordinary, routine maintenance and repairs
that are not material in nature or cost. Seller has good, marketable
and exclusive title to, and the valid and enforceable power and
unqualified right to use and transfer to Buyer, each of the Acquired
Assets, whether located at Seller's facilities or at the facilities of
Seller's customers or suppliers, and the Acquired Assets are free and
clear of all Liens and other claims of any nature and kind whatsoever,
except Permitted Liens. The consummation of the transactions
contemplated by this Agreement will not adversely affect such title or
rights or any terms of the applicable agreements creating, evidencing
or granting such title or rights. Except as set forth on Schedule
5.1(c), none of the Acquired Assets are subject to or held under any
lease, mortgage, security agreement, conditional sales contract or
other title retention agreement or are other than in the sole
possession and under the sole control of Seller. Seller has the right
under validly existing leases to use and occupy or otherwise possess
and control all properties and assets leased by it and included in the
Acquired Assets. The delivery to Buyer of the instruments of transfer
contemplated by this Agreement will vest in Buyer good, marketable and
exclusive title to (or, in the case of Acquired Assets not owned by
Seller, the full right to use and possess) the Acquired Assets, free
and clear of all Liens and other claims of any nature and kind
whatsoever, except for (i) current real or personal property Taxes (as
hereinafter defined) or other governmental charges or levies that are
Liens but are not yet due and payable, (ii) Liens securing rent
payments and other obligations under leases pursuant to which Acquired
Assets are leased by Seller from a third-party vendor or other lessor,
provided that Seller is not delinquent or otherwise in default with
respect to such payment or other obligations, and (iii) Liens arising
or deposits made in the ordinary course of business pursuant to
workers' compensation, unemployment insurance, social security and
other similar Laws (the Liens described in clauses (i) through (iii) of
this Section 5.1(c) being referred to as "Permitted Liens").
13
(d) CONTRACTS. Schedule 5.1(d) contains a complete list or
description of (i) each Contract that relates to the US Delahaye
Business or any of the Acquired Assets or Assumed Liabilities and (1)
involves future payments in excess of $25,000 in the aggregate or will
remain in effect for a period of more than 90 days after the date of
this Agreement and cannot be canceled by Seller at any time without
further payment or penalty, (2) is a loan or credit agreement,
guaranty, indenture, mortgage, pledge, security agreement or other
instrument or agreement evidencing indebtedness of Seller, (3) is a
conditional sale or other title retention agreement, equipment
obligation or lease purchase agreement involving future payments in
excess of $25,000 in the aggregate, or (4) is currently in effect
between Seller and any director, officer, employee or consultant (or
any group thereof) of or to Seller, (ii) each Contract between Seller
and any salesman, sales representative or selling agent or pursuant to
which Seller sells services of the US Delahaye Business, (iii) each
Contract that is a noncompetition, restrictive covenant or other
agreement that restricts Seller or any other Person from conducting the
US Delahaye Business anywhere in the world, (iv) each Contract that is
otherwise material to the financial condition, results of operations,
properties, assets, liabilities or business of the US Delahaye
Business, and (v) any power of attorney given by Seller to any Person
that relates directly or indirectly in any way whatsoever to the US
Delahaye Business or any of the Acquired Assets or Assumed Liabilities.
Seller has performed all material obligations required to be performed
by it to date under the Contracts, and neither Seller nor, to Seller's
knowledge, any other party to any Contract has breached or improperly
terminated any Contract or is in default in any material respect under
any Contract, and to Seller's knowledge, there exists no condition or
event that, after notice or passage of time or both, would constitute
any such breach, termination or default. All Contracts with
Governmental Authorities have been performed in compliance in all
material respects with all Laws applicable to contracting with such
Governmental Authorities. Each of the Contracts is a legal, binding and
enforceable obligation of or against Seller and, to Seller's knowledge,
is a legal, binding and enforceable obligation of or against the other
party or parties thereto. Except as set forth on Schedule 5.1(d),
Seller has no outstanding Contracts relating to the US Delahaye
Business that are not cancelable by it on notice of 30 days or less
without liability, penalty or premium. To Seller's knowledge, Seller
enjoys good working relationships under all of the Contracts relating
to the US Delahaye Business.
(e) FINANCIAL STATEMENTS. Seller has heretofore delivered to
Buyer the unaudited balance sheet of the Combined Delahaye Business
("Pre-Closing Balance Sheet") as of November 30, 2004 ("Pre-Closing
Balance Sheet Date"), and the unaudited income statement of the
Combined Delahaye Business as of the Pre-Closing Balance Sheet Date
(together with the Pre-Closing Balance Sheet, "Financial Statements").
The Financial Statements are true, correct and complete in all material
respects, were prepared from the books and records kept by Seller
(which, for the purposes of this Section 5.1(e), shall also include the
Seller under the UK Agreement), and fairly present the assets,
liabilities and financial position of the Combined Delahaye Business as
of the Pre-Closing Balance Sheet Date in accordance with the internal
accounting practices and policies of Seller set forth on Schedule
5.1(e) ("Accounting Practices"). Except as set forth in the Schedules
delivered pursuant to this Agreement or the UK Agreement, since the
Pre-Closing Balance Sheet Date, there has been no material adverse
change in the financial condition, results of operations, properties,
14
assets, liabilities or business of the Combined Delahaye Business, and
to Seller's knowledge, there has not been any event or condition of any
character specific to the Combined Delahaye Business that has or is
likely to materially and adversely affect the financial condition,
results of operations, properties, assets, liabilities or business of
the Combined Delahaye Business. The Financial Statements reflect the
revenue and costs and all of the real, personal and mixed properties
and assets that are currently used in connection with the Combined
Delahaye Business, except for inventory and other properties and assets
(other than capital assets) purchased or sold consistent with past
practice and in the ordinary and normal course of business since the
Pre-Closing Balance Sheet Date.
(f) LIABILITIES. Seller has no material liabilities or
obligations of any nature whatsoever, whether absolute, accrued,
contingent or otherwise, related to or connected with the US Delahaye
Business or any of the Acquired Assets, including but not limited to
liabilities for Taxes, forward or long-term commitments outside the
ordinary and normal course of business, or unrealized or anticipated
losses from write-downs or write-offs of assets (including inventories
and accounts receivable), except for those (i) expressly reflected or
reserved for on the Pre-Closing Balance Sheet, (ii) incurred or accrued
since the Pre-Closing Balance Sheet Date (including liabilities and
obligations incurred or accrued under operating leases, which are not
reflected on the Pre-Closing Balance Sheet) in the ordinary and normal
course of business of the US Delahaye Business in transactions that are
consistent with the representations, warranties, covenants and
agreements contained in this Agreement , (iii) set forth on Schedule
5.1(f) or (iv) are not required under GAAP to be included on the
Pre-Closing Balance Sheet. To Seller's knowledge, there exists no event
or circumstance that, after notice or passage of time or both, is
reasonably likely to create any other material obligations or
liabilities of Seller relating to the US Delahaye Business.
(g) ACCOUNTS RECEIVABLE AND ACCOUNTS PAYABLE. All Assigned
Accounts Receivable represent sales actually made in the ordinary and
normal course of business. To Seller's knowledge, there are no
counterclaims or setoffs against (or any basis therefor), or any other
matter or condition likely to interfere with full and timely collection
of, any Assigned Accounts Receivable. Schedule 5.1(g) hereto sets forth
an aged listing by customer of the accounts receivable of the US
Delahaye Business that were outstanding as of the Pre-Closing Balance
Sheet Date. Seller has not experienced or suffered undue delay in its
payment of its accounts payable and other monetary liabilities and
obligations.
(h) INVENTORIES. All Inventories are of a quality and quantity
usable in the ordinary and normal course of business, and there are no
material quantities of damaged or obsolete items or items of below
standard quality included therein. The value at which the Inventory is
carried on the Pre-Closing Balance Sheet is at cost and reflects
write-offs or write-downs for damaged or obsolete items, or items of
below standard quality, in accordance with Seller's historical
inventory policy and practices, a complete and accurate description of
which is included in the description of the Accounting Practices set
15
forth in Schedule 5.1(e). None of the Inventory is excessive in kind or
amount in light of the ordinary and normal course of conduct and
reasonably anticipated needs of the US Delahaye Business.
(i) CUSTOMERS AND SUPPLIERS. Seller is not involved in any
material dispute with any of the customers or suppliers of the US
Delahaye Business. The Combined Delahaye Business has not had any
customer who accounted for more than ten percent of the sales of the
Combined Delahaye Business during the twelve-month period ended
September 30, 2004, or any supplier from whom it purchased more than
five percent of the goods or services purchased by the Combined
Delahaye Business during the twelve-month period ended September 30,
2004. All business placed by any and all directors, officers and
employees of Seller with respect to the US Delahaye Business has been
placed in the name of Seller, and all amounts paid for services of the
US Delahaye Business or otherwise with respect to the US Delahaye
Business have been paid to and are the property of Seller.
(j) LITIGATION. Seller is not subject to any order of, or
written agreement or memorandum of understanding with, any Governmental
Authority, and there is no litigation, action, claim, suit or other
proceeding pending or, to Seller's knowledge, threatened against or
adversely or otherwise affecting Seller, the US Delahaye Business, any
of the Acquired Assets or any of the transactions contemplated by this
Agreement, including but not limited to claims for antitrust, price
discrimination, unfair competition or other liability or obligation
relating to any of the services of the US Delahaye Business, whether
sold by Seller or any of its Affiliates, and to Seller's knowledge, no
Person has grounds to assert any such litigation, action, claims, suit
or other proceeding. Set forth on Schedule 5.1(j) is a description of
(i) all litigation, actions, claims, suits and other proceedings
asserted, brought or, to Seller's knowledge, threatened against Seller
or any of its Affiliates in respect of the US Delahaye Business during
the two-year period preceding the Closing Date, including a description
of the outcome or present status thereof and (ii) all judgments,
orders, decrees, writs or injunctions entered into by or against Seller
or any of its Affiliates with respect to the US Delahaye Business and
currently in effect.
(k) LEGAL COMPLIANCE. The US Delahaye Business has been
conducted, the Acquired Assets have been maintained and Seller is
currently in compliance in all material respects with all applicable
statutes, codes, ordinances, rules, regulations, judgments, orders,
decrees, writs, injunctions and other laws of any Governmental
Authority (collectively, "Laws"), including but not limited to all Laws
relating to antitrust, consumer protection, civil rights, equal
opportunity, pensions and medical and other welfare benefits, except
where the failure to comply with such laws would not have a material
adverse effect on the US Delahaye Business or the Acquired Assets.
Seller is not in default under, and no event has occurred that, with
notice or the passage of time or both, could result in default under,
the terms of any judgment, order, decree, writ or injunction of any
Governmental Authority relating to the US Delahaye Business.
(l) INTELLECTUAL PROPERTY. Schedule 1.1(d) sets forth a
complete and correct list (with an indication of the record owner and
identifying number) of all material Intellectual Property Rights that
are directly or indirectly owned or otherwise controlled by Seller or
any of its Affiliates and are or have been used exclusively in the
16
conduct of or otherwise relate exclusively to the US Delahaye Business
(other than off-the-shelf and click-through licenses of software), and
Schedule 5.1(j) sets forth a description of all litigation, actions,
claims, suits and other proceedings pending or, to Seller's knowledge,
threatened against Seller within the two years preceding the Closing
Date, including a description of the outcome or present status thereof,
relating to any Intellectual Property Rights that are or have been used
in the conduct of or otherwise relate to the US Delahaye Business.
Except as set forth on Schedule 5.1(l), Seller is the sole owner and
has the exclusive right to use, free and clear of any restriction,
payment or encumbrance, all Intellectual Property Rights that are or
have been used in the conduct of or otherwise relate to the US Delahaye
Business (other than off-the-shelf and click-through licenses of
software). No claim or demand of any Person has been made that
challenges, and there are no proceedings pending or, to Seller's
knowledge, threatened that challenge, the rights of Seller in respect
of any of the Intellectual Property Rights that are or have been used
in the conduct of or otherwise relate to the US Delahaye Business. No
Intellectual Property Rights that are or have been used in the conduct
of or otherwise relate to the US Delahaye Business (other than
off-the-shelf and click-through licenses of software) are subject to
any outstanding order, ruling, stipulation, judgment or decree by or
with any Governmental Authority or infringes or, to Seller's knowledge,
is being infringed by others or is used by others, regardless of
whether such use constitutes infringement. All of the Intellectual
Property Rights set forth on Schedule 1.1(d) that are directly or
indirectly owned or otherwise controlled by an Affiliate of Seller have
been duly and effectively transferred to Seller.
(m) PERMITS. Schedule 5.1(m) contains a true, correct and
complete list of all Permits issued to Seller that are currently used
by Seller in connection with the US Delahaye Business. Seller has, and
is in compliance in all material respects with, all Permits that are
necessary or required for the operation of the US Delahaye Business as
it is currently being operated, and all such Permits are in full force
and effect.
(n) EMPLOYEE RELATIONS; COLLECTIVE BARGAINING AGREEMENTS.
There are no material controversies, including strikes, slowdowns,
disputes or work stoppages, pending or, to Seller's knowledge,
threatened that involve any employees employed in connection with the
US Delahaye Business. Seller has complied and is complying in all
material respects with all Laws relating to the employment of labor,
including but not limited to any provision thereof relating to wages,
hours, collective bargaining, employee health, safety and welfare, and
the payment of social security and similar Taxes with respect to any of
Seller's employees employed in connection with the US Delahaye
Business, except where the failure to comply with such Laws would not
have any material adverse effect on the US Delahaye Business or the
Acquired Assets. Seller has not experienced any labor difficulties with
respect to the employees employed in connection with the US Delahaye
Business, including but not limited to strikes, slowdowns or work
stoppages, within the two-year period preceding the Closing Date.
Seller is not a party to any collective bargaining or union contract
and, to Seller's knowledge, there exists no current union
organizational effort with respect to any of Seller's employees
employed in connection with the US Delahaye Business.
17
(o) EMPLOYEES AND EMPLOYEE PLANS. Schedule 5.1(o) contains a
true, correct and complete list of (i) all employees of the US Delahaye
Business, including a description of their respective job titles and
responsibilities and annual compensation (including salaries, bonuses,
consulting or directors' fees and incentive or deferred compensation)
and (ii) all Employee Plans and Employment Contracts. Neither Seller
nor any officer, director, shareholder, employee or agent of Seller has
taken any action directly or indirectly to obligate Seller to institute
any Employee Plan applicable to employees of the US Delahaye Business
other than those Employee Plans set forth in Schedule 5.1(o) or to
amend any such Employee Plan. Each Employee Plan maintained or
contributed to, currently or in the past, by Seller (or by any other
corporation or trade or business the employees of which, together with
the employees of Seller, are required by any of the provisions of or
rules promulgated under ERISA or the Code to be treated as if they were
employed by a single employer) that is a "group health plan" (as such
term is defined in Section 5000(b)(1) of the Code) has been operated in
compliance in all material respects with the continuation coverage
requirements of Part 6 of Subtitle B of Title I of ERISA and Section
4980B of the Code.
(p) CHANGES IN CIRCUMSTANCES. Except as otherwise set forth in
Schedule 5.1(p), since the Pre-Closing Balance Sheet Date, Seller has
not (i) sold, transferred or otherwise disposed of any properties or
assets used in connection with the conduct of or otherwise related to
the US Delahaye Business other than in the ordinary and normal course
of business and consistent with past practice, (ii) pledged or
subjected to any Lien (except a Permitted Lien) any of the Acquired
Assets, (iii) conducted the US Delahaye Business other than in the
ordinary and normal course, (iv) except for customary salary increases
in the ordinary and normal course of business consistent with past
practice, granted any salary increase or bonus or permitted any advance
to any employee of the US Delahaye Business, instituted or granted any
general salary increase to the employees or any group of employees of
the US Delahaye Business or entered into any new, or altered or amended
any existing, Employee Plan or Employment Contract, (v) paid any
liability or obligation (fixed or contingent) relating to the US
Delahaye Business other than in the ordinary and normal course of
business, discharged or satisfied any Lien on any of the Acquired
Assets other than in the ordinary and normal course of business, or
settled any claim, liability or suit pending or threatened against the
US Delahaye Business or any of the Acquired Assets, (vi) modified,
amended, canceled or terminated any Contracts under circumstances that
could materially and adversely affect the financial condition, results
of operations, properties, assets, liabilities or business of Seller or
the US Delahaye Business, (vii) written down the value of any
inventory, or written off as uncollectible all or any portion of any
accounts receivable, of the US Delahaye Business, (viii) canceled any
other debts or claims, or waived any rights, with respect to the US
Delahaye Business or any of the Acquired Assets or Assumed Liabilities,
(ix) paid, incurred or accrued any management or similar fees with
respect to the US Delahaye Business, (x) suffered any change in the
financial condition, results of operations, properties, assets,
liabilities or business of Seller or the US Delahaye Business, except
for ordinary and normal changes in the ordinary and normal course of
business that have not individually or in the aggregate been materially
adverse, (xi) made any material change in any of its accounting
policies or practices, or (xii) agreed or obligated itself to do
anything identified in clauses (i) through (xi) of this Section 5.1(p).
18
(q) TAXES. Seller has prepared in good faith and duly filed or
caused to be duly filed all Tax returns and reports required to be
filed by it with any Governmental Authority. All Taxes owed to any
Governmental Authority by Seller for periods covered by such returns
and reports, and all assessments, claims, costs, demands, expenses and
judgments connected therewith, have been paid in full. Seller is not a
party to any action or proceeding and, to Seller's knowledge, no such
action or proceeding is contemplated or threatened for the assessment
or collection of any Taxes, and no outstanding deficiency notices or
reports have been received by Seller in respect of any Tax. Any
deficiency asserted by the Internal Revenue Service as a result of its
examination of federal income tax returns filed by Seller has been paid
or finally settled, and no issue has been raised by the Internal
Revenue Service in any such examination that, by application of the
same or similar principles, reasonably could be expected to result in a
proposed deficiency for any other period not so examined. There are no
outstanding agreements or waivers extending the statutory period of
limitation applicable to any federal income tax return for any period.
Seller has not filed with regard to the Acquired Assets a consent to
the application of Section 341(f)(2) of the Code. For the purposes of
this Agreement, "Tax" or "Taxes" means all foreign and domestic
federal, state and local income (including gross and net income),
property (including real and personal property), sales, use, ad
valorem, employment, excise, franchise, gross receipts, license,
occupation, payroll, premium, profits (including windfall profits),
severance, stamp, transfer, withholding and other taxes, customs duties
and other fees, charges or assessments of any kind whatsoever,
including any interest, penalties, additions to tax or other additional
amounts imposed by any taxing authority.
(r) SERVICE WARRANTIES. Seller does not make and has not made
any express warranties in connection with the sale of the services of
the US Delahaye Business, other than as contained in the Contracts.
(s) INSURANCE. Schedule 5.1(s) contains a list of all
insurance policies (specifying the location, insured, insurer, type of
insurance, policy number and amount of coverage) maintained by Seller
for the US Delahaye Business or the Acquired Assets. All such policies
are in full force and effect, and all premiums with respect thereto
covering all periods up to and including the Closing Date have been
paid. Such policies (i) are sufficient for compliance with all
requirements of Laws applicable to the US Delahaye Business or any of
the Acquired Assets and of all agreements to which Seller is a party
and which relate to the US Delahaye Business or any of the Acquired
Assets and (ii) are valid, outstanding and enforceable policies.
(t) ABSENCE OF CERTAIN COMMERCIAL PRACTICES. Neither Seller
nor any director, officer, employee or agent of Seller has given or
agreed to give any (i) gift or similar benefit of more than nominal
value to any customer, supplier, Governmental Authority (including any
governmental employee or official) or any other Person who is or may be
in a position to hinder or assist Seller, the US Delahaye Business or
the Person giving such gift or benefit in connection with any actual or
proposed transaction relating to the US Delahaye Business, which gifts
or similar benefits would individually or in the aggregate subject
Seller or any director, officer, employee or agent of Seller to any
fine, penalty, cost or expense or to any criminal sanctions, (ii)
unlawful payments to any governmental employees or officials with
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respect to the US Delahaye Business, (iii) commercial bribes or
kick-backs with respect to the US Delahaye Business, (iv) unlawful
political contributions with respect to the US Delahaye Business, or
(v) receipts or disbursements in connection with any unlawful boycott
relating to the US Delahaye Business. No such gift or benefit is
required in connection with the operation of the US Delahaye Business
to avoid any penalty, fine, cost, expense or material adverse change in
the financial condition, results of operations, properties, assets,
liabilities or business of Seller or the US Delahaye Business.
(u) BOOKS AND RECORDS. The books and records of Seller
maintained in connection with the US Delahaye Business (including but
not limited to (i) books and records relating to sales of services of
the US Delahaye Business, dealings with customers, customer lists,
supplier lists, invoices, inventories, personnel records and Taxes and
(ii) computer software and data in computer readable and human readable
form used to maintain such books and records, including the media on
which such software and data are stored and all documentation relating
thereto) accurately record all transactions relating to the US Delahaye
Business in all material respects and have been maintained consistent
with good business practice.
(v) COPIES OF DOCUMENTS. All copies of all Contracts and other
documents delivered by Seller to Buyer in connection with this
Agreement are true, correct and complete and include all modifications
and amendments thereto.
(w) INSIDER INTERESTS. No director, officer, employee or other
Affiliate of Seller has any claim or other right to, Lien on or other
material interest of any kind whatsoever in any of the Acquired Assets
or any other real or personal, tangible or intangible property used in
connection with the conduct of or otherwise relating to the US Delahaye
Business.
(x) NO INTRACOMPANY ASSET TRANSFERS. Except as set forth in
Schedule 5.1(x), since the Pre-Closing Balance Sheet Date, Seller has
not transferred to or otherwise used for the benefit of any business
other than the US Delahaye Business any assets theretofore used in
connection with the US Delahaye Business.
(y) BROKERS, FINDERS AND AGENTS. Neither Seller nor any of its
Affiliates is directly or indirectly obligated to anyone acting as a
broker, finder or in any other similar capacity in connection with this
Agreement or the transactions contemplated hereby, other than Xxxx
Xxxxxxxxx.
5.2 REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents
and warrants to Seller that, as of the Closing Date:
(a) ORGANIZATION AND STANDING; POWER AND AUTHORITY. Buyer is a
corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware and has full corporate power and
authority to enter into and perform this Agreement and the transactions
and other agreements and instruments contemplated by this Agreement.
This Agreement and each of the other Transaction Documents to which
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Buyer is a party have been (or, upon execution thereof, will be) duly
executed and delivered by, and constitute (or, upon execution thereof,
will constitute) the valid and binding obligations of Buyer,
enforceable in accordance with their respective terms. This Agreement
and the transactions and other agreements and instruments contemplated
hereby have been duly approved by the board of directors of Buyer.
(b) CONFLICTS AND DEFAULTS. Neither the execution and delivery
of this Agreement and other Transaction Documents by Buyer nor the
performance by Buyer of its obligations hereunder and thereunder will
(i) violate, conflict with, or constitute a default under, any
provision of Buyer's certificate of incorporation or bylaws or any
provisions of, or result in the acceleration of any obligation under,
any contract, sales commitment, license, purchase order, security
agreement, mortgage, note, deed, lien, lease or other instrument or
agreement or any Law by which Buyer is bound or (ii) constitute an
event that, after notice or passage of time or both, would result in
any such violation, conflict, default (except defaults that would not
individually or in the aggregate have a material adverse effect),
acceleration, or creation or imposition of Liens or other claims. No
Consents are required to be obtained by Buyer or Observer in connection
with the execution and performance of this Agreement by Buyer and the
consummation of the transactions contemplated by this Agreement.
(c) LITIGATION. Neither Buyer nor Observer is subject to any
order of, or written agreement or memorandum of understanding with, any
Governmental Authority, and there is no litigation, action, claim, suit
or other proceeding pending or, to Buyer's knowledge, threatened
against or adversely or otherwise affecting Buyer or Observer with
respect to any of the transactions contemplated by this Agreement.
(d) BROKERS, FINDERS AND AGENTS. Neither Buyer nor any of its
Affiliates is directly or indirectly obligated to anyone as a broker,
finder or in any other similar capacity in connection with this
Agreement or the transactions contemplated hereby.
5.3 SURVIVAL. Subject to Section 9.4(a), the representations
and warranties made in this Agreement or in any other Transaction Document shall
survive the Closing.
ARTICLE VI. COVENANTS OF SELLER
6.1 CONFIDENTIALITY. Seller shall, and shall cause its
Affiliates (including Seller's directors and officers) to, hold in confidence
and not use any confidential information that remains after Closing in the
possession of Seller or any of its Affiliates concerning the US Delahaye
Business or any of the Acquired Assets or Assumed Liabilities. Seller shall not
release or disclose any such information to any Person other than Buyer and
Buyer's authorized representatives. Notwithstanding the foregoing, the
confidentiality obligations of this Section 6.1 shall not apply to information
that:
(a) Seller is compelled to disclose by judicial or
administrative process or, in the opinion of counsel, by other
mandatory requirements of Law, including any securities law or
regulation or stock exchange requirement, or reasonably needs to use in
connection with any legal proceedings or tax audit;
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(b) can be shown to have been generally available to the
public other than as a result of a breach of this Section 6.1; or
(c) can be shown to have been provided to Seller by a third
Person who obtained such information other than from Seller or other
than as a result of a breach of this Section 6.1 and who Seller is not
aware owes any duty of confidentiality to Buyer.
6.2 MAINTENANCE OF AND ACCESS TO RECORDS. After the Closing
Date, Seller shall from time to time during normal business hours and upon
reasonable notice provide Buyer with access to and the opportunity to make
copies of any records relating to the US Delahaye Business that are retained by
Seller. Seller shall preserve and maintain such records for at least three years
after the Closing Date.
6.3 FURTHER ASSURANCES; CUSTOMER AND SUPPLIER RELATIONSHIPS.
(a) FURTHER ASSURANCES. Seller shall use its reasonable best
efforts to implement the provisions of this Agreement, and for such purpose
Seller, at the request of Buyer at or after the Closing and without further
consideration, shall promptly execute and deliver, or cause to be executed and
delivered, to Buyer such deeds, assignments, bills of sale, Consents and other
instruments in addition to those required by this Agreement, in form and
substance satisfactory to Buyer, and take all such other actions as Buyer may
reasonably deem necessary or desirable to implement any provision of this
Agreement or to more effectively transfer, convey and assign to Buyer good and
marketable title to, and to put Buyer in actual possession and operating control
of, all of the Acquired Assets, free and clear of all Liens except Permitted
Liens.
(b) CUSTOMER AND SUPPLIER RELATIONSHIPS. From and after the
Closing, Seller shall in good faith assist in the transfer to Buyer of (i) the
goodwill and reputation associated with the US Delahaye Business and (ii)
Seller's personnel, suppliers, and customer relationships specifically relating
to the US Delahaye Business.
6.4 COOPERATION IN DEFENSE OF CLAIMS. In the event that a
claim is asserted against Buyer or any of its Affiliates with respect to events
or conditions occurring or existing in connection with or arising out of the
operation of the US Delahaye Business prior to the Closing or the ownership,
possession, use or sale of any of the Acquired Assets prior to the Closing,
Seller shall cooperate in all reasonable respects in the defense of any such
claim. Nothing in this Section 6.4 shall be construed as limiting in any way
whatsoever Buyer's rights under Article IX.
6.5 NONCOMPETITION.
(a) PERIOD AND CONDUCT. For a period of three years following
the Closing Date, Seller will not (i) compete (as defined in subsection (c) of
this Section 6.5) with Buyer in the Combined Delahaye Business, as such business
is being conducted immediately prior to the Closing Date, or (ii) solicit any
employee of Buyer, or any former employee of Seller, then engaged in the conduct
of the Combined Delahaye Business to terminate his or her employment with Buyer,
provided that Seller will not be deemed to be in violation of this clause (ii)
as the result of general employment solicitations through newspaper
advertisements, internet postings and the like.
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(b) TERRITORY. Seller will not engage in the activities
described in this Section 6.5 during the three-year period specified in
subsection (a) of this Section 6.5 anywhere in the world.
(c) DEFINITION OF COMPETING. Seller will be deemed to be
competing with Buyer if, and only if, Seller or any of its Controlled Affiliates
render services of the type generally offered by the Combined Delahaye Business
immediately prior to the Closing Date in connection with client assignments or
projects of a type that would typically be handled by the Combined Delahaye
Business as conducted immediately prior to the Closing Date, provided that, for
these purposes, the Combined Delahaye Business shall not in any case be deemed
to include, and the restrictions contained in this Section 6.5 shall not apply
to, (i) content creation, production, distribution and electronic broadcast
monitoring services, including but not limited to video news releases, live
event broadcasts (including satellite media tours, videoconferences and
webcasting), audio news releases and radio media tours, in formats that are
suitable for broadcast news media or on-line media outlets, including but not
limited to the News IQ and Teletrax services currently offered or currently
contemplated to be offered by Seller, or (ii) the electronic distribution of
news releases, media advisories and press statements to the media and on-line
services. In addition, Seller shall not be deemed to be in violation of the
provisions of this Section 6.5 in the event that Seller shall acquire a business
enterprise that directly or indirectly engages in services competitive with the
Combined Delahaye Business, provided that (i) the annual revenues generated from
such competitive services constitute less than 10 percent of such business
enterprise's total annual revenues and (ii) Seller disposes of such competing
business enterprise within 12 months following such acquisition, provided that
Seller shall not be obligated to dispose of any such competing business
enterprise acquired by Seller within 12 months prior to the expiration of the
three-year period referred to in subsection (a) of this Section 6.5.
(d) REMEDIES. Inasmuch as a breach of or failure to comply
with this Section 6.5 will cause serious and substantial damage to Buyer, Buyer
shall be entitled to an injunction against Seller restraining it from any such
breach or failure. All remedies expressly provided for herein are cumulative of
any and all other remedies now existing at law or in equity. In addition to the
remedies provided for herein, Buyer shall be entitled to avail itself of all
such other remedies as may now or hereafter exist at law or in equity for
compensation and for the specific enforcement of the covenants contained herein.
Resort to any remedy provided for herein or provided for by law shall not
preclude or bar the concurrent or subsequent employment of any other appropriate
remedy or remedies or preclude the recovery by Buyer of monetary damages and
other compensation.
(e) SUBSIDIARIES AND OTHER AFFILIATES OF BUYER. For the
purposes of this Section 6.5, "Buyer" shall include Observer's direct and
indirect subsidiaries, as they may exist from time to time, and any Person
deriving title to substantially all the Acquired Assets and goodwill of the US
Delahaye Business from Buyer.
(f) SEVERABILITY. Each subsection of this Section 6.5
constitutes a separate and distinct provision hereof. In the event that any
provision of this Section 6.5 shall finally be judicially determined to be
invalid, ineffective or unenforceable, such determination shall apply only in
the jurisdiction in which such adjudication is made and every other provision of
this Section 6.5 shall remain in full force and effect. The invalid, ineffective
23
or unenforceable provision shall be deemed automatically amended, without
further action by the parties, to effect the original purpose and intent of the
invalid, ineffective or unenforceable provision and to otherwise conform to the
applicable Laws of such jurisdiction, provided that such amendment shall apply
only with respect to the operation of such provision in the particular
jurisdiction in which such adjudication is made.
ARTICLE VII. COVENANTS OF BUYER
7.1 CONFIDENTIALITY. Buyer shall, and shall cause its
Affiliates (including Buyer's directors and officers) to, hold in confidence and
not use any confidential information that remains after the Closing in the
possession of Buyer or any of its Affiliates concerning Seller or any of the
Retained Assets or Retained Liabilities. Buyer shall not release or disclose any
such information to any Person other than Seller and Seller's authorized
representatives. Notwithstanding the foregoing, the confidentiality obligations
of this Section 7.1 shall not apply to information that:
(a) Buyer is compelled to disclose by judicial or
administrative process or, in the opinion of counsel, by other
mandatory requirements of Law or reasonably needs to use in connection
with any legal proceedings or tax audit;
(b) can be shown to have been generally available to the
public other than as a result of a breach of this Section 7.1; or
(c) can be shown to have been provided to Buyer by a third
Person who obtained such information other than from Buyer or other
than as a result of a breach of this Section 7.1 and who Buyer is not
aware owes any duty of confidentiality to Seller.
7.2 MAINTENANCE OF AND ACCESS TO RECORDS. After the Closing
Date, Buyer shall from time to time during normal business hours and upon
reasonable notice provide Seller with access to and the opportunity to make
copies of such business records delivered to Buyer as part of the Acquired
Assets as may be required by Seller for any legitimate purpose (such as an audit
or investigation by a Governmental Authority or a matter relating to insurance
coverage or a third party claim). Buyer shall preserve and maintain such records
for at least three years after the Closing Date.
7.3 FURTHER ASSURANCES. Buyer shall use its reasonable best
efforts to implement the provisions of this Agreement, and for such purpose
Buyer, at the request of Seller at or after the Closing and without further
consideration, shall promptly execute and deliver, or cause to be executed and
delivered, to Seller such instruments in addition to those required by this
Agreement, in form and substance satisfactory to Seller, and take all such other
actions as Seller may reasonably deem necessary or desirable to implement any
provision of this Agreement.
7.4 COOPERATION IN DEFENSE OF CLAIMS. In the event that a
claim is asserted against Seller or any of its Affiliates with respect to events
or conditions occurring or existing in connection with or arising out of the
operation of the US Delahaye Business subsequent to the Closing or the
ownership, possession, use or sale of the Acquired Assets subsequent to the
24
Closing, Buyer shall cooperate in all reasonable respects in the defense of any
such claim. Nothing in this Section 7.4 shall be construed as limiting in any
what whatsoever Seller's rights under Article IX.
ARTICLE VIII. CERTAIN ADDITIONAL COVENANTS AND AGREEMENTS
8.1 EXPENSES; TRANSFER TAXES. Each party hereto shall bear the
legal, accounting and other expenses incurred by such party in connection with
the negotiation, preparation and execution of this Agreement and the other
Transaction Documents and the consummation of the transactions contemplated
hereby and thereby. All sales, transfer, recordation and documentary Taxes and
fees that may be payable in connection with the transactions contemplated by
this Agreement shall be borne by the party responsible for such Taxes and fees
under applicable Law and customary practice.
8.2 DISCLOSURE. This Agreement and the other Transaction
Documents and the Schedules and Exhibits attached hereto and thereto, the
performance by the parties of their respective covenants and agreements
hereunder and thereunder and the transactions contemplated hereby and thereby
are confidential, and no party (including its directors, officers, employees and
other Affiliates; attorneys, accountants and other agents and advisors; heirs
and other successors and assigns; financial services brokers, lenders and
personal representatives) will disclose to any other Person this Agreement or
any of the other Transaction Documents or any of the Schedules or Exhibits
hereto or thereto or any of the terms or other contents hereof or thereof,
except as otherwise required by Law, including any applicable securities law or
regulation or stock exchange disclosure requirement, or as required to enforce
its rights hereunder or thereunder or unless agreed in writing by the other
party hereto; provided, however, that nothing in this Section 8.2 shall prohibit
any party to this Agreement from disclosing such confidential information to its
attorneys, accountants, lenders and other professional advisors who owe a duty
of confidentiality to their clients or have undertaken in writing not to
disclose such confidential information to a third Person. Notwithstanding the
foregoing, the parties acknowledge that, subsequent to the Closing, (i) Seller
will be required to publicly disclose the material terms of this Agreement in
connection with, and may include this Agreement and other Transaction Documents
as exhibits to, forms it is required to file with the Securities and Exchange
Commission and (ii) press releases will be issued by the parties in the form or
forms set forth in Schedule 8.2.
8.3 EMPLOYEE MATTERS.
(a) EMPLOYEE BENEFITS. Seller shall retain all liabilities and
obligations in respect of its past, present and future employees under the
Employee Plans, the Employment Contracts and applicable Laws. Without limiting
the generality of the foregoing or Section 2.2, Buyer shall not have any
liability or obligation whatsoever under the Employee Plans or the Employment
Contracts or any obligation to provide any employee benefits to any Persons
employed in the US Delahaye Business at any time prior to the Closing Date
("Employees"), except as otherwise provided in Section 8.3(b). Seller shall have
offered to all employees of the US Delahaye Business immediately prior to the
Closing Date the right to continue their coverage under Seller's group health
25
plan(s) (as defined in Section 5000(b)(1) of the Code), and such offers shall
have been made in accordance with the continuation coverage requirements of Part
6 of Subtitle B of Title I of ERISA and Section 4980B of the Code.
(b) FUTURE EMPLOYMENT; SEVERANCE. Buyer shall offer employment
to those Employees employed by Seller in the US Delahaye Business immediately
prior to the Closing ("Current Employees") whose names are set forth on Schedule
8.3(b), on substantially the same compensation, position and other terms and
conditions of employment as in effect for each of the Current Employees
immediately prior to the Closing. Each of the Current Employees employed by
Buyer following the Closing shall be given full credit for the period of his
employment with Seller for the purposes of (i) eligibility to participate in and
vesting under Buyer's applicable Employee Plans and (ii) determining his wage or
salary grade, and Buyer agrees that all waiting periods for the Current
Employees' participation in Buyer's health insurance plans will be waived. Buyer
will make severance payments in accordance with Seller's severance policy, as
set forth on Schedule 8.3(b) or as otherwise provided in the respective
Employment Agreements, to all Current Employees to whom Buyer does not offer
employment immediately following the Closing in accordance with the terms hereof
or whom Buyer terminates without cause within the one-year period immediately
following the Closing.
(c) EMPLOYEE INFORMATION.
(i) Mutual Exchange of Employee Information. Subject
to applicable legal restrictions, Buyer and Seller shall provide each other in a
timely manner with any information that the other may reasonably request with
respect to any Employee employed by Buyer in the US Delahaye Business, his
employment with and compensation from Seller or Buyer, as the case may be, or
rights or benefits under any Employee Plan or any personnel policy of Seller or
Buyer relating to the US Delahaye Business.
(ii) Buyer Access to Employee Health Records. Without
in any way limiting the generality of subsection (i) of this Section 8.3(c) and
to the extent it may legally do so, Seller shall afford Buyer and its
representatives such access to the medical, workers' compensation and other
health-related records of the Employees ("Employee Health Records") as have been
maintained by Seller or shall otherwise be available to Seller and as Buyer
shall deem reasonably necessary or desirable, and to the extent legally
permissible, Buyer shall be permitted to make copies of such Employee Health
Records.
8.4 CLOSING DATE BALANCE SHEETS.
(a) PREPARATION AND DELIVERY OF PRELIMINARY CLOSING DATE
BALANCE SHEET. Within 90 days after the Closing Date, Buyer shall prepare and
deliver to Seller the balance sheet of the Combined Delahaye Business as of the
Closing Date, including a determination of the Preliminary Closing Date Working
Capital ("Preliminary Closing Date Balance Sheet"). The Preliminary Closing Date
Balance Sheet shall be prepared from the books and records kept by Seller
(which, for the purposes of this Section 8.4(a), shall also include the Seller
under the UK Agreement) with respect to the Combined Delahaye Business and in
accordance with the Accounting Practices applied on a basis consistent with the
Pre-Closing Balance Sheet. In connection with the preparation of the Preliminary
Closing Date Balance Sheet, Seller shall give Buyer and its representatives and
advisors complete access to Seller's relevant books and records and shall make
26
reasonably available Seller's appropriate officers and other senior employees to
answer any questions that Buyer or its representatives or advisors may have in
connection with Buyer's preparation of the Preliminary Closing Date Balance
Sheet.
(b) PREPARATION, DELIVERY AND DETERMINATION OF FINAL CLOSING
DATE BALANCE SHEET. Within 180 days after the Closing Date, Buyer shall prepare
and deliver to Seller the balance sheet of the Combined Delahaye Business as of
the Closing Date, including a determination of the Final Closing Date Working
Capital ("Final Closing Date Balance Sheet"). The Final Closing Date Balance
Sheet shall be prepared from the books and records kept by Seller (which, for
the purposes of this Section 8.4(b), shall also include the Seller under the UK
Agreement) with respect to the Combined Delahaye Business and in accordance with
the Accounting Practices applied on a basis consistent with the Pre-Closing
Balance Sheet. In connection with the preparation of the Final Closing Date
Balance Sheet, Seller shall give Buyer and its representatives and advisors
complete access to Seller's relevant books and records and shall make reasonably
available Seller's appropriate officers and other senior employees to answer any
questions that Buyer or its representatives or advisors may have in connection
with Buyer's preparation of the Final Closing Date Balance Sheet. Seller shall
have 15 days following its receipt of the Final Closing Date Balance Sheet to
object in writing to the Final Closing Date Balance Sheet, which shall be
determined as follows:
(i) No Dispute. If Seller does not object within such
fifteen-day period to the Final Closing Date Balance Sheet delivered by
Buyer to Seller, such Final Closing Date Balance Sheet shall be the
Final Closing Date Balance Sheet; or
(ii) Mutual Attempt to Resolve Dispute. If Seller objects
within such fifteen-day period to the Final Closing Date Balance Sheet
delivered by Buyer to Seller, then for a period of 10 days following
the date of Buyer's receipt of such written objection, Buyer and Seller
shall attempt in good faith to mutually agree upon a Final Closing Date
Balance Sheet; or
(iii) Third Party Resolution of Dispute. If Buyer and Seller
are unable to agree upon a Final Closing Date Balance Sheet by the end
of such ten-day period, then Buyer and Seller shall promptly select a
mutually acceptable firm of certified public accountants, which shall
not be any such firm then engaged by Buyer or Seller or any of their
respective Affiliates, and as soon as practicable following its
selection, such firm shall determine the Final Closing Date Balance
Sheet. The fees and expenses of such firm shall be paid by the party
with whose position such firm principally disagrees, and the decision
of such firm shall be final and binding on Buyer and Seller.
8.5 ACCOUNTS RECEIVABLE.
(a) POST-CLOSING PAYMENTS RECEIVED BY SELLER. In the event
that Seller receives any payments from customers in respect of any of the
Assigned Accounts Receivable (other than Reconveyed Receivables, as hereinafter
defined), Seller shall immediately forward such payments to Buyer.
27
(b) RECONVEYANCE OF UNCOLLECTED ASSIGNED ACCOUNTS RECEIVABLE
AND POST-RECONVEYANCE PAYMENTS RECEIVED BY BUYER. Buyer shall use commercially
reasonable efforts, consistent with its customary business practices, to collect
after the Closing Date all Assigned Accounts Receivable. During the 180-day
period following the Closing Date, Buyer will (i) provide to Seller, within 10
days after each calendar month, an aged listing by customer of the then still
outstanding Assigned Accounts Receivable, (ii) promptly inform Seller of any
claims, disputes, offsets or other defenses of the obligors on such then still
outstanding Assigned Accounts Receivable that Buyer receives notice of or
otherwise becomes aware of, and (iii) promptly provide to Seller copies of all
notices or other correspondence that Buyer sends or receives concerning the
payment or nonpayment of such then still outstanding Assigned Accounts
Receivable. With the exception of any Assigned Accounts Receivable that a
customer of the US Delahaye Business may be contesting or disputing in good
faith, Buyer shall apply all payments it receives from such customer in the
order of the oldest outstanding accounts receivable until such time as all
Assigned Accounts Receivable from such customer have been paid in full. Buyer
shall reconvey, transfer and assign to Seller all Assigned Accounts Receivable
still outstanding at the close of business on the 180th day following the
Closing Date (such Assigned Accounts Receivable being referred to as "Reconveyed
Receivables"), and in the event that Buyer receives any payments from customers
in respect of any Reconveyed Receivables, Buyer shall immediately forward such
payments to Seller.
8.6 BUYER'S POST-CLOSING USE OF SELLER'S NAME. For a period of
180 days following the Closing Date, Buyer shall have the royalty-free right to
use Seller's name in the following context in connection with Buyer's operation
of the US Delahaye Business: "Delahaye Bacon's, formerly Delahaye Medialink."
ARTICLE IX. INDEMNIFICATION
9.1 INDEMNIFICATION BY BUYER. Subject to Section 9.4, from and
after the Closing, Buyer shall indemnify, defend and hold harmless Seller
(which, for the purposes of this Section 9.1, shall also include the Seller
under the UK Agreement) and its directors, officers, employees, agents,
representatives and other Affiliates from and against any and all actions,
assessments, claims, costs, damages, demands, expenses, judgments, liabilities
and losses, including but not limited to interest, penalties, reasonable
attorneys' fees, accounting fees and investigation costs (collectively,
"Liabilities"), that may be incurred by Seller and result or arise from, relate
to or are otherwise incurred in connection with (a) the failure of Buyer or the
Buyer under the UK Agreement to pay, perform and discharge the Assumed
Liabilities (which, for the purposes of this Section 9.1, shall also include the
Assumed Liabilities under the UK Agreement), (b) the failure of Buyer or the
Buyer under the UK Agreement to report the purchase of the Acquired Assets
(which, for the purposes of this Section 9.1, shall also include the Acquired
Assets under the UK Agreement) in accordance with the allocations required by
Section 3.3 hereof or clause 3.2 of the UK Agreement and (c) any breach of any
representation, warranty, covenant or agreement of Buyer or the Buyer under the
UK Agreement contained in this Agreement, the UK Agreement or in any other
Transaction Document.
9.2 INDEMNIFICATION BY SELLER. Subject to Section 9.4, from
and after the Closing, Seller shall indemnify, defend and hold harmless Buyer
(which, for the purposes of this Section 9.2, shall also include the Buyer under
the UK Agreement) and its directors, officers, employees, agents,
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representatives and other Affiliates from and against any and all Liabilities
that may be incurred by Buyer and result or arise from, relate to or are
otherwise incurred in connection with (a) the failure of Seller or the Seller
under the UK Agreement to pay, perform and discharge the Retained Liabilities
(which, for the purposes of this Section 9.2, shall also include the Retained
Liabilities under the UK Agreement), (b) the failure of Seller or the Seller
under the UK Agreement to report the sale of the Acquired Assets (which, for the
purposes of this Section 9.2, shall also include the Acquired Assets under the
UK Agreement) in accordance with the allocations required by Section 3.3 hereof
or clause 3.2 of the UK Agreement, and (c) any breach of any representation,
warranty, covenant or agreement of Seller or the Seller under the UK Agreement
contained in this Agreement, the UK Agreement or in any other Transaction
Document, and (d) any failure to comply with the Laws of any jurisdiction
relating to bulk transfers that may be applicable in connection with the sale of
the Acquired Assets (which, for the purposes of this clause (d), shall include
only the Acquired Assets under this Agreement) to Buyer, unless any such
liability shall arise as the result of Buyer's failure to pay, perform or
otherwise satisfy an Assumed Liability.
9.3 NOTICE OF THIRD PARTY CLAIM; DEFENSE OF THIRD PARTY CLAIM;
NON-THIRD PARTY CLAIM.
(a) NOTICE OF THIRD PARTY CLAIM. If any indemnified party
receives notice of the assertion of any claim, the commencement of any action,
suit or proceeding, or the imposition of any penalty or assessment by a third
party in respect of which indemnity may be sought hereunder ("Third Party
Claim"), and the indemnified party intends to seek indemnity hereunder, then the
indemnified party shall promptly provide the indemnifying party with prompt
written notice of the Third Party Claim, but in any event not later than 30
calendar days after receipt of such notice of Third Party Claim. The failure by
an indemnified party to notify an indemnifying party of a Third Party Claim
shall not relieve the indemnifying party of any indemnification responsibility
under this Article IX, unless such failure materially prejudices the ability of
the indemnifying party to defend such Third Party Claim.
(b) DEFENSE OF THIRD PARTY CLAIM. The indemnifying party may
at its expense defend a Third Party Claim, if the indemnifying party utilizes
counsel reasonably satisfactory to the indemnified party and promptly commences
the defense of the Third Party Claim, pursues such defense with diligence, and
has the financial ability to pay the alleged damages; provided, however, that
the indemnifying party shall secure the consent of the indemnified party, which
shall not be unreasonably withheld, to any settlement of a Third Party Claim.
The indemnified party may participate in the defense of any such Third Party
Claim at its expense and, until the indemnifying party has agreed to defend such
Third Party Claim, the indemnified party may, at the indemnifying party's
expense, file any motion, answer or other pleading or take such other action as
the indemnified party deems appropriate to protect its interests. If an
indemnifying party does not defend any Third Party Claim for which indemnity is
owing under this Agreement, the indemnifying party shall be bound by the results
obtained with respect thereto, and the reasonableness of the costs, fees and
expenses incurred, by the indemnified party, including the amount of any
settlement of such Third Party Claim. In any event, the indemnified party will
not settle or compromise any Third Party Claim without the prior written consent
of the indemnifying party, which shall not be unreasonably withheld.
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(c) NON-THIRD PARTY CLAIM. Any claim asserted hereunder that
is not a Third Party Claim shall be asserted by the indemnified party by
promptly delivering notice thereof to the indemnifying party.
9.4 LIMITATIONS.
(a) SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Except as
otherwise provided in this Section 9.4, all representations, warranties,
covenants and agreements made in this Agreement shall survive the Closing. Each
of the representations and warranties set forth in Section 5.1 and each of the
representations and warranties set forth in Section 5.2 shall survive until the
first anniversary of the Closing Date, except for (i) the representations and
warranties set forth in Sections 5.1(a), 5.1(b) and 5.1(c) (commencing with the
third sentence thereof) hereof and clauses 9.1(A), 9.1(B) and 9.1(C) (commencing
with the third sentence thereof) of the UK Agreement, and Sections 5.1(y),
5.2(a), 5.2(b) and 5.2(c) hereof and clauses 9.1(Z), 9.2(A), 9.2(B) and 9.2(C)
of the UK Agreement, which shall survive forever, and (ii) the representations
and warranties set forth in Section 5.1(q) hereof and clause 9.1(S) of the UK
Agreement, which shall survive until the expiration of the applicable statute of
limitations.
(b) SURVIVAL OF INDEMNITIES. The indemnities set forth in
Section 9.1 and the indemnities set forth in Section 9.2 shall survive forever,
except for the indemnity set forth in Section 9.1(c), and the indemnity set
forth in Section 9.2(c), which shall survive until the applicable representation
and warranty expires in accordance with Section 9.4(a). No indemnification claim
may be made under Section 9.1(c) or Section 9.2(c) unless written notice thereof
is given to the indemnifying party prior to the expiration of the applicable
representation and warranty in accordance with Section 9.4(a). Any claim for
indemnification under Section 9.1(c) or Section 9.2(c) that is made in
accordance with the immediately preceding sentence shall survive until satisfied
in full or otherwise finally resolved.
(c) LIABILITY. Seller shall not be obligated to indemnify
against any Liabilities pursuant to Section 9.2 unless and until the aggregate
amount of all such Liabilities exceeds $100,000. If and when the aggregate
amount of all such Liabilities exceeds $100,000, Seller shall be obligated to
indemnify against all such Liabilities, including the first $100,000 of such
Liabilities; provided, however, that Seller shall not be obligated to indemnify
against any Liabilities under Section 9.2 in excess of $2,000,000.
9.5 OTHER UNDERTAKINGS.
(a) REDUCTION OF LIABILITIES. To the extent any Liabilities of
an indemnified party are reduced by receipt of payment (a) under insurance
policies or (b) from third parties not affiliated with the indemnified party,
such payments (net of the expenses of the recovery thereof) shall be credited
against such Liabilities and, if indemnification payments shall have been
received prior to the collection of such proceeds, the indemnified party shall
remit to the indemnifying party the amount of such proceeds (net of the cost of
collection thereof) to the extent of indemnification payments received in
respect of such Liabilities. All Liabilities shall be calculated net of any tax
benefits actually received by the indemnified party relating to such
Liabilities.
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(b) SUBROGATION. The indemnifying party shall be subrogated to
the indemnified party's rights of recovery to the extent of any Liabilities
satisfied by the indemnifying party. The indemnified party shall permit the
indemnifying party to use the name of the indemnified party and the names of the
indemnified party's Affiliates in any transaction or proceeding to enforce such
rights and shall use reasonable efforts to execute and deliver such instruments
and papers as are necessary to assign such rights and assist in the exercise
thereof, including access to books and records with respect to such Liabilities.
(c) EXCLUSIVE REMEDY. Seller and Buyer acknowledge and agree
that, in the absence of fraud, the provisions in this Article IX shall be the
exclusive remedy for any breach of a representation or warranty under, or other
matter arising out of or in connection with, this Agreement, the UK Agreement or
any other Transaction Document, except as otherwise provided in Section 6.5 or
any other rights to injunctive relief that may be available to the parties
hereto.
(d) MITIGATION. Each of the parties agrees to take all
reasonable steps to mitigate their respective Liabilities upon and after
becoming aware of any event that could reasonably be expected to give rise to
any Liabilities that are indemnifiable hereunder.
ARTICLE X. MISCELLANEOUS
10.1 AMENDMENTS. This Agreement may be amended only by a
writing executed by all of the parties hereto.
10.2 ENTIRE AGREEMENT. This Agreement and the other
Transaction Documents set forth the entire understanding of the parties hereto
with respect to the subject matter hereof and supersede all prior contracts,
agreements, arrangements, communications, discussions, representations and
warranties, whether oral or written, between the parties.
10.3 GOVERNING LAW. This Agreement shall in all respects be
governed by and construed in accordance with the laws of the State of Illinois,
without regard to its conflicts of law doctrine. Each of the parties hereto
hereby consent to the nonexclusive jurisdiction of any state or federal court
located within Chicago, Illinois, or New York, New York, with respect to any
claims or disputes arising under this Agreement.
10.4 NOTICES. Any notice, request or other communication
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given (a) when received, if personally delivered, (b) within five days
after being deposited with the United States Postal Service, if sent by
registered or certified mail, return receipt requested and postage prepaid, (c)
12 hours after being sent by telecopy, with confirmed answer back, or (d) within
two business days after being deposited with an established overnight courier
for priority delivery, in each case to the parties at their respective addresses
set forth below.
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TO SELLER: Medialink Worldwide Incorporated
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxxxxx
Chairman, President &
Chief Executive Officer
with a copy to: Xxxxx & Xxxxxxx LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
TO BUYER: Bacon's Information Inc.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: R. Xxxxxxx Xxxxxx
Chief Executive Officer
with a copy to: Xxxxx Day
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxx
Any party by written notice to the other given in accordance with this Section
10.4 may change the address or the Person to whom notices or copies thereof
shall be directed.
10.5 COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, and all of which
together will constitute one and the same instrument.
10.6 ASSIGNMENT. This Agreement shall be binding upon and
inure to the benefit of the successors and assigns of each of the parties
hereto, but no rights, obligations or liabilities hereunder shall be assignable
by any party without the prior written consent of the other party.
Notwithstanding the foregoing, Buyer may assign its rights and obligations under
this Agreement to an Affiliate of Buyer and cause such Affiliate to perform the
obligations of Buyer under this Agreement; provided, however, that no such
assignment shall otherwise vary or diminish any of Buyer's rights or obligations
under this Agreement.
10.7 WAIVERS. Except as otherwise provided herein, either
party hereto (acting on behalf of itself and its appropriate Affiliates), may
waive in writing compliance by the other party hereto (to the extent such
compliance is for the benefit of the party giving such waiver) with any of the
terms, covenants or conditions contained in this Agreement or in any of the
other Transaction Documents (except such as may be imposed by Law). Any waiver
by either party of any violation of, breach of or default under any provision of
this Agreement or any of the other Transaction Documents by the other party
shall not constitute or be construed as a continuing waiver of such provision or
a waiver of any other violation of, breach of or default under any other
provision of this Agreement or any of the other Transaction Documents.
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10.8 THIRD PARTIES. Nothing expressed or implied in this
Agreement is intended, or shall be construed, to confer upon or give any Person
or entity other than the parties hereto any rights or remedies under or by
reason of this Agreement.
10.9 SCHEDULES AND EXHIBITS. Except as otherwise expressly
indicated, references in this Agreement to "Schedules" or "Exhibits" are to the
Schedules and Exhibits attached to this Agreement. The Schedules and Exhibits
attached to this Agreement are incorporated herein and shall be part of this
Agreement for all purposes.
10.10 HEADINGS. The headings in this Agreement are solely for
convenience of reference and shall not be given any effect in the construction
or interpretation of this Agreement.
10.11 CERTAIN DEFINITIONS.
(a) AFFILIATE. For the purposes of this Agreement, the term
"Affiliate" shall mean any Person that directly, or indirectly through one or
more other Persons, controls, is controlled by, or is under common control with,
the Person specified or is directly or indirectly related by blood or law to the
Person specified.
(b) BINDING EFFECT AND ENFORCEABILITY. For the purposes of
this Agreement and any of the other Transaction Documents, the phrases "legal,
valid and binding" and "enforceable in accordance with [ITS] [THEIR RESPECTIVE]
terms" or similar phrases, when used with reference to one or more items, shall
be deemed to mean that such enforceability may be limited by bankruptcy laws and
other laws affecting creditors' rights and under general principles of equity.
(c) CONTROLLED AFFILIATe. For the purposes of this Agreement,
the term "Controlled Affiliate" shall mean an Affiliate of the Person specified
that is controlled by the Person specified.
(d) KNOWLEDGE. As used in this Agreement, the phrase "to
Seller's knowledge" or words of similar import shall mean the actual knowledge,
as of the applicable date, of those persons listed in Schedule 10.11A. As used
in this Agreement, the phrase "to Buyer's knowledge" or words of similar import
shall mean the actual knowledge, as of the applicable date, after reasonable
inquiry, of those persons listed in Schedule 10.11B.
10.12 GENDER AND NUMBER. The masculine, feminine or neuter
gender and the singular or plural number shall each be deemed to include the
other or others whenever the context so indicates.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
BACON'S INFORMATION INC.
By
-----------------------------
R. Xxxxxxx Xxxxxx
Chief Executive Officer
MEDIALINK WORLDWIDE INCORPORATED
By
-----------------------------
J. Xxxxxx XxXxxxxxx
Executive Vice President &
Chief Financial Officer
34
