EXHIBIT 2.3
ROLL-UP AGREEMENT
This Roll-Up Agreement (this "Agreement") is entered into as of December
16, 1999 by and among XxxxXxxxxx.xxx, Inc., a Delaware corporation
("XxxxXxxxxx.xxx"), BANK ONE CORPORATION, a Delaware corporation ("Bank One"),
Bank One, N.A., Columbus, Ohio, a national banking association organized under
the laws of the United States and a wholly owned subsidiary of Bank One ("Bank
One NA"), Banc One Insurance Services Corporation, a Wisconsin corporation
("Banc One Insurance Services Corporation") and XX0Xxxxxxxxx.xxx, LLC, a
Delaware limited liability company ("CD1").
RECITALS
A. XxxxXxxxxx.xxx and Bank One entered into the Operating Agreement of CD1
dated May 28, 1999 (the "Operating Agreement"), pursuant to which Bank One NA,
as successor to Banc One Vehicle Finance Corporation, an Ohio corporation, its
wholly-owned subsidiary, was designated as a Member (as defined in the Operating
Agreement) of CD1, and pursuant to which Bank One NA currently holds all of Bank
One's Interest (as defined in the Operating Agreement) in CD1, which such
Interest includes a 49% Allocation Percentage (as defined in the Operating
Agreement) in CD1.
B. As of October 31, 1999, the total assets net of total liabilities of CD1
equaled approximately $3.8 million.
C. Bank One desires to sell, and XxxxXxxxxx.xxx desires to purchase, the
entire Interest in CD1 held by Bank One, Bank One NA and their affiliates for an
aggregate purchase price of $2,000,000; immediately prior to such sale, Bank One
and XxxxXxxxxx.xxx desire to amend and restate the Operating Agreement of CD1 in
the form set forth as Exhibit A hereto (the "Amended and Restated Operating
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Agreement").
D. XxxxXxxxxx.xxx, Bank One and CD1 entered into a Master Agreement dated
May 28, 1999 (the "Master Agreement").
E. XxxxXxxxxx.xxx desires to pay, and Bank One desires to receive,
$30,874,889, in exchange for the termination of the Master Agreement, including
the termination of the exclusivity provisions set forth therein, and in
settlement of all outstanding liabilities, claims and other obligations arising
from or related to the Master Agreement.
F. In connection with the foregoing, XxxxXxxxxx.xxx and Bank One desire
to set forth the nature of their business relationship following the date hereof
pursuant to the Term Sheet attached hereto as Exhibit B (the "Term Sheet"),
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which the parties desire to make legally binding.
G. Bank One NA holds a warrant (the "Warrant") dated August 18, 1999, to
acquire shares of XxxxXxxxxx.xxx Common Stock.
H. Pursuant to the terms of the Warrant, the parties wish to confirm
that Bank One NA owns a currently exercisable Warrant to purchase 2,085,970
shares of XxxxXxxxxx.xxx Common Stock (referred to in the Warrant as the
"Determination Number").
I. In addition, in connection with the foregoing, XxxxXxxxxx.xxx and Bank
One desire to terminate the Amendment No. 1, dated August 18, 1999, to the
XxxxXxxxxx.xxx Third Amended and Restated Investor Rights Agreement dated May 7,
1999 (the "Rights Agreement Amendment") entered into between XxxxXxxxxx.xxx,
Bank One and certain stockholders of XxxxXxxxxx.xxx.
J. XxxxXxxxxx.xxx, Banc One Insurance Services Corporation and CD1 entered
into an Insurance Services Agreement dated August 3, 1999 (the "Insurance
Agreement").
K. XxxxXxxxxx.xxx, CD1 and Banc One Insurance Services Corporation desire
to terminate the Insurance Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein, the parties hereto agree as follows:
1. The Restatement of the Relationship. At the Closing (as defined below)
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and subject to and upon the terms and conditions of this Agreement, the
following shall occur:
(a) XxxxXxxxxx.xxx shall pay and deliver to Bank One NA by wire
transfer of immediately available funds to an account designated by Bank One the
aggregate amounts of $30,874,889, on account of the agreements set forth in
Section 4 below, and $2,000,000, on account of the sale of the Interest in CD1
to XxxxXxxxxx.xxx pursuant to Section 1(b) below.
(b) Bank One NA (and, to the extent applicable, Bank One and any of
its affiliates) shall transfer to XxxxXxxxxx.xxx all of its right, title, duties
and interest in and to its Interest in CD1.
(c) XxxxXxxxxx.xxx and Bank One NA shall execute and deliver the
Amended and Restated Operating Agreement.
(d) Bank One shall execute and deliver the Fourth Amended and Restated
Investor Rights Agreement ("Rights Agreement") dated October 27, 1999, between
XxxxXxxxxx.xxx and certain of its stockholders.
(e) The representatives of Bank One on the Board of Directors of CD1
shall submit their resignations from the Board of Directors of CD1 effective as
of the Closing.
(f) The parties hereto agree that the Amended and Restated Operating
Agreement shall be executed and deemed effective immediately prior to those
other actions taken at the Closing.
(g) The Warrant shall become immediately exercisable by its terms for
2,085,970 shares of XxxxXxxxxx.xxx Common Stock.
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(h) XxxxXxxxxx.xxx and Bank One hereby agree that the terms of the
Term Sheet shall be binding upon the parties identified therein until such time
as any such terms shall terminate in accordance with the terms of the Term Sheet
or as otherwise agreed to by said parties in writing.
(i) In recognition of the liquidation of Bank One Vehicle Finance
Corporation, XxxxXxxxxx.xxx shall issue to Bank One NA a replacement Warrant
pursuant to Section 3 of the Warrant with terms identical to the Warrant
previously held by Bank One Vehicle Finance Corporation, and the Warrant issued
to Banc One Vehicle Finance Corporation shall thereupon be cancelled.
2. Closing. The closing of the performance of the actions required by
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this Agreement shall take place at the offices of Xxxxxx Xxxxxxx Xxxxxxxx &
Xxxxxx, 000 Xxxx Xxxx Xxxx, Xxxx Xxxx, XX 00000 at 10:00 a.m., on the date
hereof or at such other time and place as the parties hereto shall mutually
agree.
3. Survival of Certain Obligations under Operating Agreement.
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XxxxXxxxxx.xxx, Bank One and Bank One NA hereby acknowledge and agree that
following the Closing, Bank One NA shall cease to be a Member (as defined in the
Operating Agreement) of CD1, the Interests in CD1 shall be owned entirely by
XxxxXxxxxx.xxx (and XxxxXxxxxx.xxx shall have a 100% Allocation Percentage in
CD1) and that notwithstanding Sections 7 or 10.9 of the Operating Agreement
(which shall not apply to the transactions described in this Agreement or to
Bank One or its affiliates), neither Bank One nor any of its affiliates shall
have any further rights or obligations as an owner of an Interest or as a
Member, or otherwise, with respect to CD1, including without limitation that
Bank One and its affiliates shall have no further liability or obligation under
Section 3.1(b) of the Operating Agreement. Other than as set forth in this
Agreement, the foregoing sentence shall not limit or restrict the rights of Bank
One NA under the Warrant, Section 6.16 of the Operating Agreement or Section 7
of this Agreement. Notwithstanding the foregoing, Bank One NA shall remain
subject to and shall retain the benefits of Sections 6.12(a), 6.13, 6.14 and 9
of the Operating Agreement, with respect to the period prior to Closing, and the
foregoing sections of the Operating Agreement shall survive with respect to such
periods notwithstanding the amendment of the Operating Agreement or liquidation
or dissolution of CD1.
4. Termination of Master Amendment. XxxxXxxxxx.xxx, CD1 and Bank One
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agree that as of the Closing, the Master Agreement (including any amendments
thereto and derivatives therefrom, other than this Agreement, the Amended and
Restated Operating Agreement, the Warrant, the Rights Agreement and the Term
Sheet (together, the "Continuing Agreements")) shall be terminated and
thereafter shall be deemed null and void; provided, however, that
notwithstanding anything in this Agreement to the contrary, the indemnification
provisions of Section 22 of the Master Agreement shall survive and remain in
full force and effect with respect to Damages (as defined in the Master
Agreement) resulting from claims brought by third parties unaffiliated with
either XxxxXxxxxx.xxx, CD1 or Bank One.
5. Termination of Insurance Agreement. XxxxXxxxxx.xxx, CD1 and Bank One
----------------------------------
agree that as of the Closing, the Insurance Agreement (including any amendments
thereto and derivatives therefrom, other than the Continuing Agreements) shall
be terminated and thereafter shall be deemed null and void.
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6. Termination of Rights Agreement Amendment. XxxxXxxxxx.xxx and Bank
-----------------------------------------
One agree that as of the Closing, the Rights Agreement Amendment shall be
terminated and thereafter shall be deemed null and void.
7. Registration Rights.
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(a) XxxxXxxxxx.xxx hereby agrees that on and after the Closing, (i)
Bank One NA will be a "Holder" (as such term is defined in the Rights
Agreement), and (ii) the 2,085,970 shares of XxxxXxxxxx.xxx Common Stock
issuable pursuant to the exercise of the Warrant (and shares of XxxxXxxxxx.xxx
Common Stock issuable in respect of the foregoing upon any stock split, stock
dividend, recapitalization or similar event) will be "Registrable Securities"
(as such term is defined in the Rights Agreement), in each case subject to the
execution of the Rights Agreement by Bank One.
(b) Notwithstanding Section 7(a) hereof, in lieu of such other
legends as may be required pursuant to Section 3 of the Rights Agreement, any
stock certificate(s) representing shares of capital stock of XxxxXxxxxx.xxx
issued to Bank One or Bank One NA shall be stamped or otherwise imprinted with a
legend in substantially the following form (in addition to any legends required
by agreement or by applicable state securities laws):
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). SUCH SECURITIES MAY
NOT BE TRANSFERRED OTHER THAN TO BANK ONE CORPORATION (OR A MAJORITY
OWNED SUBSIDIARY THEREOF WHICH QUALIFIES AS AN "ACCREDITED INVESTOR")
UNLESS A REGISTRATION STATEMENT UNDER THE ACT IS IN EFFECT AS TO SUCH
TRANSFER OR IN THE OPINION OF COUNSEL FOR THE COMPANY, SUCH TRANSFER
MAY BE MADE PURSUANT TO RULE 144 OR REGISTRATION UNDER THE ACT IS
OTHERWISE UNNECESSARY IN ORDER FOR SUCH TRANSFER TO COMPLY WITH THE
ACT.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A LOCKUP
PERIOD OF UP TO 180 DAYS FOLLOWING THE EFFECTIVE DATE OF A
REGISTRATION STATEMENT OF THE COMPANY FILED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, AS SET FORTH IN AN AGREEMENT BETWEEN THE ISSUER
AND THE ORIGINAL HOLDER OF THESE SHARES, A COPY OF WHICH MAY BE
OBTAINED AT THE PRINCIPAL OFFICE OF THE ISSUER. SUCH LOCKUP PERIOD IS
BINDING ON THE TRANSFEREES OF THESE SHARES.
(c) Notwithstanding the provisions of the third sentence of Section 4
of the Rights Agreement, XxxxXxxxxx.xxx agrees that Bank One and Bank One NA
shall not be required to provide prior written notice of the transfer of
Restricted Securities (as such term is defined in the Rights Agreement) with
respect to any transfer to Bank One or any majority-owned subsidiary of either
Bank One or Bank One NA, provided that any such transfer after the date hereof
shall not deemed effective until such transferee executes and becomes subject to
the Rights Agreement. Bank
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One and/or Bank One NA shall notify XxxxXxxxxx.xxx of the identity of any such
subsidiary transferee as soon as practicable with respect to any such transfer
(unless a registration statement is in effect with respect to such Restricted
Securities).
(d) XxxxXxxxxx.xxx hereby agrees that with respect to the second
sentence of Section 11 of the Rights Agreement, the term "Purchaser" shall be
deemed to include Bank One and/or Bank One NA.
(e) Subject to Sections 6(c) and
(d) of the Rights Agreement, notwithstanding those minimum stock ownership
requirements set forth in Section 6(a) of the Rights Agreement, XxxxXxxxxx.xxx
hereby agrees to provide to Bank One or to a majority-owned subsidiary of Bank
One designated by Bank One the financial information described in Section
6(a)(i), (ii), and (iii) of the Rights Agreement, without regard to any
subsequent amendments to Section 6(a), while Bank One or Bank One NA and/or any
affiliate(s) (as defined in Rule 405 of the Securities Act) thereof continue to
hold the Warrant prior to exercise, or, following exercise of the Warrant,
continue to hold at least the lesser of (i) 1,000,000 shares of XxxxXxxxxx.xxx
Common Stock (as adjusted for recapitalizations, stock combinations, stock
dividends, stock splits and the like) or (ii) fifty percent (50%) of the shares
of XxxxXxxxxx.xxx Common Stock initially acquired by Bank One NA pursuant to the
exercise of the Warrant (as adjusted for recapitalizations, stock combinations,
stock dividends, stock splits and the like).
(f) Bank One and Bank One NA hereby expressly agree that each of them,
and any transferee of any shares of XxxxXxxxxx.xxx capital stock acquired by
them pursuant to the exercise of the Warrant or otherwise, shall be subject to
the lockup agreement set forth in Section 7 of the Rights Agreement.
8. Publicity. XxxxXxxxxx.xxx shall not issue any press release or other
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public communication that is not routine in nature concerning the relationship
of XxxxXxxxxx.xxx with Bank One or any Bank One affiliate, without the prior
approval of Bank One or such affiliate.
9. Representations and Warranties of XxxxXxxxxx.xxx. and CD1.
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(a) Organization and Standing. XxxxXxxxxx.xxx is a corporation duly
organized and validly existing under, and by virtue of, the laws of the State of
Delaware and is in good standing under such laws. CD1 is a limited liability
company duly organized and validly existing under, and by virtue of, the laws of
the State of Delaware and is in good standing under such laws.
(b) Corporate Power. XxxxXxxxxx.xxx has all requisite legal and
corporate power and authority to execute and deliver the Roll-Up Agreements (as
defined below) and to carry out and perform its obligations under the terms of
the Roll-Up Agreements. For purposes of this Section 9 and Section 10,
references to the "Roll-Up Agreements" shall be deemed a reference to each of
this Agreement, the Amended and Restated Operating Agreement and the Rights
Agreement, insofar as the applicable party is a party thereto.
(c) Authorization; Compliance with Laws. All corporate action on the
part of XxxxXxxxxx.xxx, its officers, directors and stockholders necessary for
the authorization, execution,
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delivery and performance of the Roll-Up Agreements by XxxxXxxxxx.xxx, and the
performance of all of XxxxXxxxxx.xxx's obligations under the Roll-Up Agreements,
has been taken. The Roll-Up Agreements, when executed and delivered by
XxxxXxxxxx.xxx, shall constitute valid and binding obligations of
XxxxXxxxxx.xxx, enforceable in accordance with their terms. The execution,
delivery and performance of the Roll-Up Agreements by XxxxXxxxxx.xxx, and the
performance of its business thereunder, will not violate in any material respect
any law, rule, regulation, order, agreement, settlement or judgment applicable
to XxxxXxxxxx.xxx. All corporate action on the part of CD1, its officers,
directors and members necessary for the authorization, execution, delivery and
performance of the Roll-Up Agreements by CD1, and the performance of all of
CD1's obligations under the Roll-Up Agreements, has been taken. The Roll-Up
Agreements, when executed and delivered by CD1, shall constitute a valid and
binding obligation of CD1, enforceable in accordance with its terms. The
execution, delivery and performance of the Roll-Up Agreements by CD1, and the
performance of its business hereunder, will not violate in any material respect
any law, rule, regulation, order, agreement, settlement or judgment applicable
to CD1.
(d) Litigation. There is no action, suit, proceeding or, to
XxxxXxxxxx.xxx's knowledge, investigation pending or, to XxxxXxxxxx.xxx's
knowledge, currently threatened against XxxxXxxxxx.xxx that questions the
validity of the Roll-Up Agreements, or the right of XxxxXxxxxx.xxx to enter into
each such agreement, or to consummate the transactions contemplated hereby or
thereby. XxxxXxxxxx.xxx is not a party or subject to the provisions of any
order, writ, injunction, judgment or decree of any court or government agency or
instrumentality which prohibits the transactions contemplated by the Roll-Up
Agreements. There is no such action, suit or proceeding brought by
XxxxXxxxxx.xxx currently pending or which XxxxXxxxxx.xxx currently intends to
initiate. There is no action, suit, proceeding or, to CD1's knowledge,
investigation pending or, to CD1's knowledge, currently threatened against CD1
that questions the validity of the Roll-Up Agreements, or the right of CD1 to
enter into the Roll-Up Agreements, or to consummate the transactions
contemplated hereby. CD1 is not a party or subject to the provisions of any
order, writ, injunction, judgment or decree of any court or government agency or
instrumentality which prohibits the transactions contemplated by the Roll-Up
Agreements. There is no such action, suit or proceeding brought by CD1 currently
pending or which CD1 currently intends to initiate.
(e) Consents and Approvals. No consent, approval, filing, exemption,
waiver or registration with any governmental entity or any other Person is
required to be made or obtained by XxxxXxxxxx.xxx or CD1 in connection with the
execution, delivery or performance of the Roll-Up Agreements or the consummation
of the transactions contemplated hereby or thereby, other than in the case of
the Term Sheet, various government licenses and approvals required in various
jurisdictions to engage in the business contemplated thereunder.
10. Representations and Warranties of Bank One and Bank One NA.
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(a) Organization and Standing. Bank One is a corporation duly
organized and validly existing under, and by virtue of, the laws of the State of
Delaware and is in good standing under such laws. Bank One NA is a national
banking association duly organized and validly existing under, and by virtue of,
the laws of the United States and is in good standing under such laws.
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(b) Corporate Power. Bank One has all requisite legal and corporate
power and authority to execute and deliver the Roll-Up Agreements and to carry
out and perform its obligations under the terms of the Roll-Up Agreements. Bank
One NA has all requisite legal and corporate power and authority to execute and
deliver the Roll-Up Agreements and to carry out and perform its obligations
under the terms of the Roll-Up Agreements.
(c) Authorization; Compliance with Laws. All corporate action on the
part of Bank One, its officers, directors and stockholders necessary for the
authorization, execution, delivery nd performance of the Roll-Up Agreements, has
been taken. The Roll-Up Agreements, has been taken. The Roll-Up Agreements, when
executed and delivered by Bank One, shall constitute valid and binding
obligations of Bank One, enforceable in accordance with their terms. The
execution, delivery and performance of the Roll-Up Agreements by Bank One, and
the performance of its business thereunder, will not violate in any material
respect any law, rule, regulation, order, agreement, settlement or judgment
applicable to Bank One. All corporate action on the part of Bank One NA, its
officers, directors and stockholders necessary for the authorization, execution,
delivery and performance of the Roll-Up Agreements by Bank One NA, and the
performance of all of Bank One NA's obligations under the Roll-Up Agreements,
has been taken. The Roll-Up Agreements, when executed and delivered by Bank One
NA, shall constitute the valid and binding obligations of Bank One NA,
enforceable an accordance with their terms. The execution, delivery and
performance of the Roll-Up Agreements by Bank One NA, and the performance of its
business thereunder, will not violate in any material respect any law, rule,
regulation, order, agreement, settlement or judgement applicable to Bank One NA.
(d) Litigation. There is no action, suit, proceeding or, to Bank One's
knowledge, investigation pending or, to Bank One's knowledge, currently
threatened against Bank One that questions the validity of the Roll-Up
Agreements, or the right of Bank One to enter into each such agreement, or to
consummate the transactions contemplated hereby or thereby. Bank One is not a
party or subject to the provisions of any order, writ, injunction, judgment or
decree of any court or government agency or instrumentality which prohibits the
transactions contemplated by the Roll-Up Agreements. There is no action, suit or
proceeding brought by Bank One currently pending or which Bank One currently
intends to initiate with respect to the transactions contemplated by the Roll-Up
Agreements. There is no action, suit, proceeding or, to Bank One NA's knowledge,
investigation pending or, to Bank One NA's knowledge, currently threatened
against Bank One NA that questions the validity of the Roll-Up Agreements, or
the right of Bank One NA to enter into the Roll-Up Agreements, or to consummate
the transactions contemplated hereby or thereby. Bank One NA is not a party or
subject to the provisions of any order, writ, injunction, judgment or decree of
any court or government agency or instrumentality which prohibits the
transactions contemplated by the Roll-Up Agreements. There is no action, suit or
proceeding brought by Bank One NA currently pending or which Bank One NA
currently intends to initiate with respect to the transactions contemplated by
the Roll-Up Agreements.
(e) Consents and Approvals. No consent, approval, filing, exemption,
waiver or registration with any governmental entity or any other Person is
required to be made or obtained by Bank One or Bank One NA in connection with
the execution, delivery or performance of the Roll-Up Agreements or the
consummation of the transactions contemplated hereby or thereby.
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11. Indemnification.
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(a) By XxxxXxxxxx.xxx. XxxxXxxxxx.xxx shall indemnify, save and hold
harmless Bank One and its affiliates and their respective representatives, from
and against any and all costs, losses, liabilities, damages, lawsuits,
deficiencies, claims brought by third parties and expenses in connection
therewith, including without limitation, interest, penalties, reasonable
attorneys' fees and expenses (including fees and expenses of in-house legal
counsel) and all amounts paid in investigation, defense or settlement of any of
the foregoing (herein, the "Indemnifiable Damages"), incurred in connection with
or arising out of or resulting from any material breach of any covenant or
agreement, or the material inaccuracy of any representation or warranty, made by
XxxxXxxxxx.xxx or CD1 in or pursuant to the Roll-Up Agreements.
(b) By Bank One. Bank One shall indemnify, save and hold harmless
XxxxXxxxxx.xxx and its affiliates, and their respective representatives from and
against any and all Indemnifiable Damages incurred in connection with or arising
out of or resulting from any material breach of any covenant or agreement, or
the material inaccuracy of any representation or warranty, made by Bank One or
Bank One NA in or pursuant to the Roll-Up Agreements.
(c) Claims. If a claim for Indemnifiable Damages is to be made by a
party entitled to indemnification hereunder against the indemnifying party, the
party entitled to such indemnification shall give written notice to the
indemnifying party as soon as practical after the party entitled to
indemnification becomes aware of any fact, condition or event which may give
rise to Indemnifiable Damages for which indemnification may be sought under this
Section 11. If any claim, lawsuit, proceeding or action is filed against any
party entitled to the benefit of indemnity hereunder, written notice thereof
shall be given to the indemnifying party as promptly as practicable (and in any
event within 15 days after the service of the citation or summons); provided,
that the failure of any indemnified party to give the notice required by the
preceding clause or sentence shall not affect rights to indemnification
hereunder except to the extent that the indemnifying party demonstrates actual
damage caused by such failure. After such notice, if the indemnifying party
shall acknowledge in writing to the indemnified party that the indemnifying
party shall be obligated under the terms of its indemnity hereunder in
connection with such lawsuit or action, then, except as provided below, the
indemnifying party shall be entitled, if it so elects, to take control of the
defense and investigation of such lawsuit or action and to employ and engage
attorneys of its own choice to handle and defend the same, at the indemnifying
party's cost, risk and expense provided that the indemnifying party and its
counsel shall proceed with diligence and in good faith with respect thereto. The
indemnified party shall cooperate (at the indemnifying party's expense) in all
reasonable respects with the indemnifying party and such attorneys in the
investigation, trial and defense of such lawsuit or action and any appeal
arising therefrom; provided, however, that the indemnified party may, at its own
cost, participate in the investigation, trial and defense of such lawsuit or
action and any appeal arising therefrom and provided, further, that if the
indemnifying party shall not have employed counsel to direct the defense of any
such action or if any such indemnified party or parties shall have reasonably
concluded that there may be defenses available to it or them which are different
from or additional to those available to the indemnifying party (in which case
the indemnifying party shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), legal and other expenses
thereafter reasonably incurred by the indemnified party shall be borne by the
indemnifying party. An indemnified party shall not be
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entitled to any payment under an indemnity hereunder with respect to any action
or portion of an action until such action or portion shall have been settled by
agreement among the pertinent parties or shall have been finally determined
(including any appeals unless by agreement no further appeals are taken) by a
court or board of arbitration of competent jurisdiction. No indemnifying party
shall be required to pay indemnification hereunder as a result of a settlement
or compromise unless the indemnified party shall have given its prior written
consent to such settlement or compromise, which consent shall not be
unreasonably withheld.
(d) No Consequential Damages. Notwithstanding any provision of this
Agreement to the contrary, NO PARTY HERETO SHALL BE LIABLE TO ANY INDEMNIFIED
PARTY FOR ANY CONSEQUENTIAL DAMAGES SUFFERED BY SAID PERSON, EVEN IF SUCH PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. Successors and Assigns. The provisions hereto shall inure to the
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benefit of, and be binding upon, the successors, assigns, heirs, executors and
administrators of the parties hereto.
13. Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be an original and all of which together shall
constitute one instrument.
14. Governing Law. This Agreement shall be governed in all respects by
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the internal laws of the State of Delaware without regard to conflict of laws
provisions.
15. Amendments. This Agreement may be amended by the parties hereto only
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by an instrument in writing signed on behalf of each of the parties hereto.
* * * * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first set forth above.
XXXXXXXXXX.XXX, INC.
By:____________________________
Name:__________________________
Title:_________________________
BANK ONE CORPORATION
By:____________________________
Name:__________________________
Title:_________________________
XX0XXXXXXXXX.XXX, LLC
By:____________________________
Name:__________________________
Title:_________________________
BANK ONE, N.A.,
Columbus, Ohio
By:____________________________
Name:__________________________
Title:_________________________
BANC ONE INSURANCE SERVICES
CORPORATION
By:____________________________
Name:__________________________
Title:_________________________
Signature Page to Roll-Up Agreement
