Exhibit 10.65
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") is entered into on this 27th
day of September, 2002 by and among RURAL/METRO INTERNATIONAL, INC., a company
duly organized and existing under the laws of the State of Delaware, United
States of America ("U.S.A."), with registered office at 0000 Xxxx Xxxxxx Xxxxxx
Xxxx, Xxxxxxxxxx, Xxxxxxx, 00000, X.X.X. ("RMI") and a wholly owned subsidiary
of RURAL/METRO CORPORATION, a company duly organized and existing under the laws
of the State of Delaware, U.S.A., with registered office at 0000 Xxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxx, 00000, X.X.X. (hereinafter referred to as the
"Parent"), RURAL/METRO CORPORATION, a company duly organized and existing under
the laws of the State of Arizona, U.S.A., with registered office at 0000 Xxxx
Xxxxxx Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxx, 00000, X.X.X. ("R/M Arizona"), and R/M
MANAGEMENT CO., INC., a company duly organized and existing under the laws of
the State of Arizona, U.S.A., with registered office at 8401 East Indian School
Road, Scottsdale, Arizona, 85251, U.S.A., (RMI, R/M ARIZONA and R/M MANAGEMENT
CO., INC. hereinafter jointly referred to as "Sellers"),
AND
BANGOR MANAGEMENT CORP., a company duly organized and existing under the laws of
British Virgin Islands, with registered office at Pasea Estate, Road Town,
Tortola, British Virgin Islands, (the "Buyer"), and XXXXXX X. XXXXXXXXX, a
citizen of the U.S.A., residing at Barrio Las Palmas, Radial Castilla 000, Xxxxx
Xxxx xx xx Xxxxxx, Xxxxxxxx of Bolivia (hereinafter referred to as "TB"),
AND
R/M SERVICIOS DE SALUD E INCENDIOS (BOLIVIA) S.A. a company duly organized and
existing under the laws of Bolivia, with registered office at Avenida Seis xx
Xxxxxx, Edificio Xxxxx, La Xxx, Republic of Bolivia, (the "Company"), and its
wholly owned subsidiary, UNIDAD DE EMERGENCIAS MEDICAS S.R.L. a company duly
organized and existing under the laws of the Republic of Bolivia ("Bolivia"),
with registered office at Barrio Equipetrol, Xxxxx Xxx Xxxxx #0, Xxxxx Xxxx xx
xx Xxxxxx, Xxxxxxxx of Bolivia (the "Subsidiary"), (the Company and the
Subsidiary hereinafter jointly referred to as the "Companies").
The Sellers, the Buyer, the Parent, the Companies and TB are hereinafter
referred to jointly as the "Parties."
RECITALS
WHEREAS, As of the Closing Date, Sellers are the owners of the totality of
the issued and outstanding shares of the Company (the "Shares"), which in turn
is the owner of the totality of the issued and outstanding shares of capital
stock of the Subsidiary;
WHEREAS, TB is the legal representative of Buyer;
WHEREAS, TB, as the former Division General Manager, Chief Operating
Officer, Group President and manager of the Companies for the past three (3)
years or more, has had full responsibility for and has complete Knowledge of all
aspects of the business, finances, assets, Liabilities, Proceedings and
operations of the Companies;
WHEREAS, Sellers desire to sell, and Buyer desires to purchase, the Shares
held by Sellers as of the Closing Date, subject to the terms and conditions
herein;
WHEREAS, the Buyer and the Companies acknowledge that the tradename
"RURAL/METRO" (the "Tradename") has acquired significant market value and
recognition and constitutes a substantial asset associated with the highest
standards in the fire protection services and the health care services provided
by Companies in Bolivia;
WHEREAS, the Companies desire to continue using, and enjoying the value and
benefits of, the Tradename in Bolivia as such Tradename is used in the business
and operations of the Companies;
WHEREAS, the Buyer and the Companies acknowledge that the granting of the
right to the continued use of the Tradename by Parent represents a substantial
part of the consideration being received by Buyer and a significant inducement
for the Buyer and the Companies to enter into this Agreement;
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WHEREAS, Parent is willing to grant Buyer and the Companies the right to
continue to use the Tradename in Bolivia as such Tradename is presently being
used in the business and operations of the Companies, subject to the terms and
conditions of that certain Tradename Use Agreement dated as of even date hereof
(the "Tradename Use Agreement);
WHEREAS, Parent acknowledges certain Liabilities, including without
limitation, net inter-company payable balances to the Companies as of the date
of this Agreement (the "Account Payable Obligations");
WHEREAS, Buyer is willing to assume the Account Payable Obligations and any
and all Liabilities related thereto, and Companies are willing to consent to the
assignment of the Account Payable Obligations and any and all Liabilities
related thereto to Buyer and to fully release Parent, RMI, and all Affiliates of
Parent and RMI, from the Account Payable Obligations and any and all Liabilities
related thereto;
WHEREAS, the Sellers and Parent acknowledge that Buyer's assumption of the
Account Payable Obligations and any and all Liabilities related thereto, and the
Companies' consent and release in connection therewith represent a substantial
part of the consideration being received and a significant inducement for the
Sellers and Parent to enter into this Agreement;
NOW, THEREFORE, intending to be legally bound, and in consideration of the
representations, warranties, covenants and agreements contained herein, the
Parties hereby agree as follows:
1. DEFINITIONS
1.1 As used in this Agreement, the following terms or expressions shall
have the meaning hereinafter indicated.
"ACCOUNT PAYABLE OBLIGATIONS" shall have the meaning assigned to it in the
Recitals above.
"AFFILIATE" shall mean any Person, which, directly or indirectly, through one or
more intermediaries, has control over or is under the control of one of the
Parties.
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"BOLIVIA" shall have the meaning assigned to it in the Introduction to this
Agreement.
"BOLIVIAN. GAAP" shall mean generally accepted accounting principles for
financial reporting in Bolivia.
"BUYER" shall have the meaning assigned to it in the Introduction to this
Agreement.
"BUYER'S CLOSING DOCUMENTS" shall have the meaning assigned to it in Section
3.1(b) of this Agreement.
"CLOSING" shall mean the delivery by the Parties of all certificates and
documents required to be delivered pursuant to this Agreement.
"CLOSING DATE" shall mean the date upon which the Closing occurs.
"COMPANY" and "COMPANIES" shall have the meaning assigned to them in the
Introduction to this Agreement.
"CONTRACT" shall mean any contract, agreement, commitment, understanding, lease,
license, franchise, warranty, guaranty, mortgage, note, bond, or other
instrument or consensual obligation (whether written or oral and whether express
or implied).
"CONTROL" shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of an entity,
whether through the ownership of a majority of the voting rights, by contract,
or otherwise.
"ENCUMBRANCE" shall mean any charge, claim, mortgage, servitude, easement, right
of way, community or other material property interest, covenant, equitable
interest, lien, option, pledge, security interest, preference, priority, right
of first refusal, or similar restriction.
"GENERAL RELEASE" shall have the meaning assigned to it in Section 2.2(a) of
this Agreement.
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"GOVERNMENTAL BODY" shall mean any:
(i) nation, region, state, county, city, town, village, district, or other
jurisdiction;
(ii) federal, state, local, municipal, foreign or other government;
(iii) governmental or quasi-governmental authority of any nature (including
any governmental agency, branch, department, or other entity and any
court or other tribunal);
(iv) multinational organization (to the exclusion of multinational
corporation or similar legal entity);
(v) body exercising, or entitled to exercise any administrative,
executive, judicial, legislative, policy, regulatory, or taxing
authority or power of any nature; and
(vi) official of any of the foregoing.
"KNOWLEDGE" - (i) an individual will be considered to have Knowledge of a fact
or matter if the individual is actually aware of the fact or matter or a prudent
individual could be expected to discover or otherwise become aware of the fact
or matter in the course of conducting a reasonable inquiry concerning the
existence of the fact or matter, (ii) an entity will be considered to have
knowledge of a fact or matter if any individual who is serving, or who has at
any time served, as officer, director or manager (or in similar capacity) has,
or at any time had, knowledge of the fact or matter, and (iii) Parent and
Sellers shall not be considered to have knowledge of a fact or matter unless the
Company, the Subsidiary or TB expressly brought, in writing, that fact or matter
to the attention of the Chief Executive Officer or General Counsel of Parent.
"LEGAL REQUIREMENT" shall mean any constitution, law, statute, treaty, rule,
regulation, ordinance, binding case law or principle of common law, approval or
Order of any Governmental Body, and any Contract with any Governmental Body
relating to compliance with any of the foregoing.
"LIABILITIES" shall mean all manner and nature whatsoever of any past, present
or future claims, costs, losses, liabilities, obligations, deficiencies,
diminutions of value, expense, debts, sums of money, accounts, reckonings,
bonds, bills, covenants, contracts, agreements, promises, damages, actions,
proceedings, causes of action or suits, judgments, executions and demands,
including without limitation unpaid taxes, fees, levies, duties, tariffs, fines,
penalties and other charges of any kind imposed by any Governmental Body,
whether any of the foregoing arise in law or at equity, whether any of the
foregoing are known or unknown, absolute, accrued, contingent, xxxxxx, inchoate,
or otherwise, due or to become due, and whether any of the foregoing are or are
not required to be reflected on a balance sheet prepared in accordance with (i)
U.S. GAAP or (ii) Bolivian GAAP.
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"LOSS" shall mean any Liability (including any penalty and any reasonable
professional and legal fees and costs) incurred or suffered by a Party (or any
other person entitled to indemnification under this Agreement), whether or not
involving a third-party claim;
"MATERIAL ADVERSE EFFECT" - something would be considered to have a "Material
Adverse Effect" if it (i) materially adversely affects the financial or other
condition or results of operations, assets, Liabilities, equity, business or
prospects of the Companies, or (ii) materially adversely impedes the ongoing
business or operations of the Companies.
"ORDER" shall mean any order, injunction, judgement, decree, ruling, assessment
or arbitration award of any Governmental Body or arbitrator.
"ORGANIZATIONAL DOCUMENTS" shall mean any charter, articles, bylaws,
certificates, statement, statutes, or similar document adopted, filed or
registered in connection with the creation, formation, or organization of an
entity, and any Contract among the equity holders, partners or members of an
entity.
"PARENT" shall have the meaning assigned to it in the Introduction to this
Agreement.
"PARTIES" shall have the meaning assigned to them in the Introduction to this
Agreement.
"PERSON" shall refer to an individual, or an entity, including a corporation,
share company, limited liability company, partnership, trust, association,
Governmental Body or any other body with legal personality separate from its
equity holders or members.
"PROCEEDINGS" shall mean any action, arbitration, audit, hearing, investigation,
litigation, or suit (whether civil, criminal, administrative, judicial or
investigative, whether formal or informal, and whether public or private)
commenced, brought, conducted or heard by or before, or otherwise involving any
Governmental Body or arbitrator.
"PROCESS AGENT" shall have the meaning assigned to it in Section 10(4)(d) of
this Agreement.
"R/M ARIZONA" shall have the meaning assigned to it in the Introduction to this
Agreement.
"RMI" shall have the meaning assigned to it in the Introduction to this
Agreement.
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"RELEASED PARTIES" shall mean each of the Sellers and the Parent, and (excluding
Releasors) each of their past, present and future Affiliates, and the respective
past, present and future officers, directors, employees, servants, stockholders,
agents, representatives, attorneys, insurers, lenders, creditors, subsidiaries,
parents, divisions and other corporate affiliates of each of the foregoing, and
the beneficiaries, heirs, executors, administrators, predecessors, successors
and assigns of each of the foregoing, and all Persons or entities acting by,
through, under, or in concert with any of the foregoing.
"RELEASORS" shall mean each of TB, the Companies and the Buyer, and (excluding
Released Parties) each of their past, present and future Affiliates, and the
respective past, present and future officers, directors, employees, servants,
stockholders, agents, representatives, attorneys, insurers, lenders, creditors,
subsidiaries, parents, divisions and other corporate affiliates of each of the
foregoing, and the beneficiaries, heirs, executors, administrators,
predecessors, successors and assigns of each of the foregoing, and all Persons
or entities acting by, through, under, or in concert with any of the foregoing.
"SELLERS" shall have the meaning assigned to it in the Introduction to this
Agreement.
"SELLERS' CLOSING DOCUMENTS" shall have the meaning assigned to it in Section
3.1 (a) of this Agreement.
"SHARES" shall have the meaning assigned to it in the Recitals above.
"SUBSIDIARY" shall have the meaning assigned to it in the Introduction to this
Agreement.
"TB" shall have the meaning assigned to it in the Introduction to this
Agreement.
"TRADENAME USE AGREEMENT" shall have the meaning assigned to it the Recitals
above.
"U.S.A." shall have the meaning assigned to it in the Introduction to this
Agreement.
"U.S. GAAP" shall mean generally accepted accounting principles for financial
reporting in the U.S.A.
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1.2 PRINCIPLES OF INTERPRETATION
Capitalized terms used in this Agreement and in the Appendices hereto have
the meanings set forth in this Agreement. In this Agreement, unless otherwise
indicated and unless otherwise required by the context, the singular includes
the plural and plural the singular; words importing any gender include each
other gender; references to statutes or regulations are to be construed as
including all statutory or regulatory provisions consolidating, amending or
replacing the statute or regulation referred to; references to "writing" include
printing, typing and other means of reproducing words in a tangible visible
form; the words "including," "includes" and "include" shall be deemed to be
followed by the words "without limitation"; the words "will" and "shall" shall
be deemed to be interchangeable; references to articles, sections (or
subdivisions of sections), exhibits, annexes, appendices or schedules are to
this Agreement; references to agreements and other contractual instruments shall
be deemed to include all subsequent amendments, extensions and other
modifications to those instruments; and references to persons include their
respective permitted assigns and successors. The division of this Agreement into
Articles and Sections shall not affect the construction or interpretation of
this Agreement. The terms "this Agreement", "herein", "hereof", "hereunder" and
similar expressions refer to this entire Agreement, including the Recitals and
attachments hereto, and not to any particular Article, Section, paragraph,
Appendix, Schedule or other portion hereof and include any agreement
supplemental hereto. Unless otherwise provided, all references to "Articles",
"Sections", "paragraphs" "Appendices" and "Schedules" are to Articles, Sections
and paragraphs of, and attachments to this Agreement, each of which is made a
part of this Agreement for all purposes.
2. SALE AND TRANSFER OF SHARES; CLOSING
2.1 SHARES
Subject to the terms and conditions of this Agreement, at the Closing,
Sellers shall sell and transfer the Shares to Buyer, and Buyer shall purchase
the Shares from Sellers.
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2.2 CONSIDERATION
In consideration for (i) the purchase of the Shares, (ii) the granting of
the right to continue to use the Tradename pursuant to the Tradename Use
Agreement, and (iii) any other transaction contemplated hereunder:
(a) TB, the Buyer, the Companies and the other Releasors hereby
irrevocably, jointly and severally, knowingly and voluntarily, fully and
forever, release and discharge Sellers, Parent and the other Released Parties
from any and all Liabilities and Proceedings (whether or not a Proceeding has
been commenced), which Releasors may have had or may now or hereafter have or
claim or otherwise assert against or with respect to any one or more of the
Released Parties for, upon or by reason of any matter, cause or thing whatsoever
at any time on or before the date of this Agreement, including, without
limitation, any claim relating to, referring to, arising out of, or in
connection with (i) the Account Payable Obligations, (ii) the condition or value
of the stock, financial statements, general ledgers, books of accounting,
balances, capitalization, equity holdings, and any and all of the assets and
Liabilities of the Companies, (iii) any and all Contracts, agreements,
understandings or relationships of any of the Released Parties with any of the
Releasors, (iv) any and all rights or entitlements as a shareholder, officer,
director, employee, agent, creditor or otherwise of the Released Parties, as may
have been at any time applicable to Releasors, (v) the Companies or their
respective operations or Sellers' ownership of the Company and/or the
Subsidiary, or (vi) any and all other dealings between or among the Parties, or
any other claims, demands and Liabilities arising under any Legal Requirement.
The foregoing release does not extend to any obligations established by this
Agreement. TB, Buyer and the Companies further agree to execute on the Closing
Date a general release in the form attached hereto as Appendix A (the "General
Release").
(b) TB, Buyer and the Companies hereby agree that (i) any Liabilities,
Proceedings and Account Payable Obligations released and discharged pursuant to
the terms of Section 2.2(a) above shall expressly include any and all of
Parent's Account Payable Obligations and any and all Liabilities related
thereto, and (ii) the execution of this Agreement by TB, Buyer and the Companies
shall constitute TB's, Buyer's and the Companies' express, irrevocable and
unconditional consent to such release and discharge.
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(c) The Buyer and the Companies shall, jointly and severally indemnify,
defend and hold harmless the Released Parties and each of them, for, from and
against any and all Liabilities (whether or not a Proceeding has been commenced)
and Proceedings directly or indirectly arising out of or connected in any way
whatsoever with the Account Payable Obligations and/or this Agreement and the
transactions contemplated hereunder. Buyer and the Companies each acknowledges
and agrees that its indemnity and hold harmless obligations include but are not
limited to the indemnity and hold harmless obligations set forth in Section 7.3
hereof.
2.3 CLOSING
The Closing shall take place on September 27, 2002. Failure to consummate
the purchase and sale provided for in this Agreement on the date determined by
the previous sentence shall not result in the termination of this Agreement and
shall not relieve any Party of any obligation under this Agreement.
3. CLOSING OBLIGATIONS
3.1 On the Closing Date:
(a) Sellers shall deliver to Buyer the documents ("Sellers' Closing
Documents") more fully described in Appendix B attached hereto, and
(b) Buyer shall deliver to Sellers the documents ("Buyer's Closing
Documents") more fully described in Appendix C attached hereto.
4. REPRESENTATIONS AND WARRANTIES OF PARENT AND SELLERS
The Sellers and Parent hereby represent and warrant to Buyer as follows:
4.1 ORGANIZATION, GOOD STANDING AND ENFORCEABILITY
(a) Each of the Sellers and Parent is duly incorporated, duly
organized and validly existing under the laws of its jurisdiction and has the
requisite corporate power to carry on its businesses as presently conducted, and
to perform all its obligations under this Agreement.
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(b) Sellers have delivered to Buyer copies of the Organizational
Documents of the Companies, as currently in effect.
(c) This Agreement constitutes the legal, valid, and binding
obligation of each of the Sellers, enforceable against each Seller in accordance
with its terms.
4.2 CAPITALIZATION
The Shares represent all of the issued and outstanding shares in the
Company. Sellers are and will be on the Closing Date the record and beneficial
owners and holders of the Shares, free and clear of all Encumbrances. All of the
Shares have been duly authorized and validly issued and are fully paid and
nonassessable.
4.3 FEES
Each of the Sellers and Parent represent that there are no finder's fees,
brokerage fees or commissions, or similar related fees payable or reimbursable
to any Person by any of them in connection with this Agreement and the
transactions contemplated hereunder.
5. REPRESENTATIONS AND WARRANTIES OF BUYER
The Buyer represents and warrants to Sellers and Parent as follows:
5.1 ORGANIZATION, GOOD STANDING AND ENFORCEABILITY
(a) Buyer is a corporation duly organized, validly existing and in
good standing under the laws of its respective jurisdiction. Buyer has the
necessary power and authority to enter into and deliver this Agreement and all
documents contemplated hereby, to perform its respective obligations hereunder
and to consummate the transactions contemplated hereby. The execution and
delivery of this Agreement and all documents contemplated hereby and the
consummation of the transactions contemplated hereby by Buyer shall be duly
authorized by all necessary corporate actions on or prior to the Closing Date.
(b) This Agreement and all documents contemplated hereby have each
been duly and validly authorized, executed and delivered by Buyer and constitute
the legal, valid, and binding obligation of Buyer, enforceable against each
Buyer in accordance with their respective terms.
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(c) All consents, approvals, authorizations and orders necessary for
the execution, delivery and performance of this Agreement have been obtained. No
permission, approval, determination, consent or waiver by, or any declaration,
filing or registration with, any governmental or regulatory authority is
required in connection with the execution, delivery and performance of this
Agreement.
(d) There is no legal action, suit, arbitration, governmental
investigation or other legal or administrative proceeding, nor any order, decree
or judgment in progress, pending or in effect, or to the Knowledge of Buyer
threatened, in connection with or relating to the transactions contemplated by
this Agreement, and Buyer does not know or has any reason to be aware of any
basis for the same.
(e) Upon consummation of the transactions contemplated by this
Agreement, the Buyer and the Companies shall have capital sufficient to carry on
their respective businesses and transactions in which they engage and shall be
able to pay their debts as they mature, and shall own property and assets having
a present fair saleable value on a going concern basis greater than the amount
required to pay their then-probable Liabilities (including contingencies).
5.2 DUE DILIGENCE; "AS IS"
(a) Buyer conducted a full due diligence review (the "Due Diligence
Review") with respect to all matters associated with the Companies and the
transaction contemplated by this Agreement, including but not limited to (i) the
completion by Buyer, and to Buyer's complete satisfaction, of the Due Diligence
Review, and (ii) a complete legal and financial review of the Companies. Buyer
further represents that, through TB's role as Division General Manager, Chief
Operating Officer, Group President and manager of the Companies for the last
three (3) years or more or otherwise, Buyer and its legal and financial advisors
have had, to their complete satisfaction, full and free access to the Companies'
personnel, properties, Contracts, books and records, tax filings including any
and all other documents and data deemed necessary by Buyer.
(b) Buyer acknowledges and accepts that the purchase of the Shares as
contemplated by this Agreement shall imply the transfer of the Company (and
thereby the Subsidiary and their respective assets and Liabilities, known and
unknown) "as is", with all assets and Liabilities as they stand on the Closing
Date, regardless of value or condition, and that (i) none of the Sellers'
representations and warranties included herein shall limit in any way the
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meaning of the term "as is" as used herein, and (ii) Sellers do not furnish any
representation or warranty other than the ones provided in this Agreement.
5.3 ORGANIZATIONAL DOCUMENTS AND CORPORATE BOOKS
Buyer is in possession of all the corporate books and records of the
Companies as such may be required for the purpose of continuing the business of
the Companies as such is presently being conducted.
5.4 NO ADDITIONAL REPRESENTATIONS AND WARRANTIES FROM SELLERS
Buyer hereby acknowledges that, as of and up to the Closing Date, TB is the
Division General Manager, Chief Operating Officer, Group President and manager
of the Companies and managed the business and operations of the Companies for
the last three (3) years or more. By virtue of the relationship between Buyer,
Companies and TB or otherwise, Buyer has full Knowledge of all aspects and
issues, whether legal, financial or otherwise, associated with the business and
operations of the Companies, and does not require any further representations
and/or warranties whatsoever from Sellers other than those representations and
warranties made in Article 4 of this Agreement. Buyer further represents and
warrants it has have full Knowledge as of the Closing Date of any and all
issues, including Liabilities of the Companies and existing Proceedings against
the Companies, which could have a Material Adverse Effect on the Companies
and/or their business and operations.
5.5 NO PROHIBITION
Neither the consummation nor the performance of the terms of this Agreement
shall, directly or indirectly (with or without notice or lapse of time)
contravene, or cause Buyer, Sellers or the Companies to suffer any Material
Adverse Effect under (i) any applicable Legal Requirement or Order, or (ii) any
Legal Requirement or Order that has been published, introduced, or otherwise
formally proposed by or before any Governmental Body.
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5.6 FEES
Buyer represents that there are no finder's fees, brokerage fees or
commissions, or similar related fees payable or reimbursable to any Person by
any it in connection with this Agreement and the transactions contemplated
hereunder.
6. REPRESENTATIONS AND WARRANTIES OF TB
6.1 TB represents and warrants to Sellers, Parent, Buyer and the Companies
that, as the Division General Manager, Chief Operating Officer, Group President
and manager of the Companies for the last three (3) years or more or otherwise,
(i) TB is fully aware of all aspects and issues, whether legal, financial or
otherwise, associated with the business and operations of the Companies, (ii)
that, as of the Closing Date, TB has full Knowledge of any and all issues,
including Liabilities of the Companies and existing Proceedings against the
Companies, which could have a Material Adverse Effect on the Companies and/or
their business and operations, that (iii) TB and/or his advisors thoroughly
completed the Due Diligence Review to their full satisfaction, and that (iv) TB
hereby acknowledges and agrees to the sale and purchase of the Shares and
transfer of the Company and the Subsidiary contemplated by this Agreement on an
"as is" basis.
6.2 TB represents that there are no finder's fees, brokerage fees or
commissions or similar related fees payable or reimbursable to any Person by TB
(and, for purpose of this Section 6.2, payable by the Companies) in connection
with this Agreement and the transactions contemplated hereunder.
7. INDEMNIFICATION; REMEDIES; RELEASE
7.1 SURVIVAL; RIGHT TO INDEMNIFICATION
All representations, warranties, covenants, and obligations in this
Agreement and any other certificate or document delivered pursuant to this
Agreement shall survive the Closing Date. The right to indemnification, payment
of damages or other remedy based on such representations, warranties, covenants,
and obligations shall not be affected by any investigation conducted with
respect to, or any Knowledge acquired (or capable of having been acquired) at
any time, whether before or after the execution and delivery of this Agreement
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or the Closing Date, with respect to the accuracy or inaccuracy of or compliance
with, any such representations, warranties, covenants, or obligations. The
waiver of any condition based on the accuracy of any representation or warranty,
or on the performance of or compliance with any covenant or obligation, shall
not affect the right to indemnification, payment of damages, or other remedy
based on such representations, warranties, covenants, and obligations.
7.2 INDEMNIFICATION BY SELLERS; NO LIABILITIES
Sellers shall indemnify and hold harmless each Buyer and its
representatives, equity owners, controlling persons and Affiliates (collectively
with Buyer, the "Buyer Indemnified Persons") for, and shall pay to the Buyer
Indemnified Persons the amount of, any Loss arising, directly or indirectly,
from or in connection with:
(a) any breach of any representation or warranty made by Sellers in
this Agreement or in any certificate delivered by Sellers pursuant to this
Agreement;
(b) any breach by Sellers of any covenant or obligation of Sellers in
this Agreement; and
(c) any and all Proceedings, demands or assessments, costs and
expenses incidental to any of the foregoing matters set forth in Section 7.2 (a)
and (b).
The remedies provided in this Section 7.2 shall be exclusive and in limitation
of any other remedies that might otherwise be available to the Buyer Indemnified
Persons.
7.3 INDEMNIFICATION BY BUYER AND COMPANIES
7.3.1 Buyer, the Company and the Subsidiary, jointly and severally,
shall indemnify and hold harmless Sellers, Parent and each of their respective
representatives, equity owners, controlling persons, and Affiliates
(collectively with Sellers, the "Seller Indemnified Persons"), and shall pay to
the Seller Indemnified Persons the amount of any Loss arising, directly or
indirectly, from or in connection with:
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(a) any breach of any representation or warranty made by Buyer or TB
in this Agreement or in any certificate delivered by Buyer pursuant to this
Agreement;
(b) any breach by Buyer, Companies or TB of any covenant or obligation
of Buyer, Companies or TB in this Agreement;
(c) any Liabilities of the Company or the Subsidiary, whether prior
to, on or after the Closing Date; and
(d) any and all Proceedings, demands or assessments, and costs and
expenses incidental to any of the foregoing matters set forth in Section 7.3.1
(a) through (c).
7.3.2 With respect to the matters for which any Buyer Indemnified
Person is required to provide indemnification pursuant to Section 7.3, a Buyer
Indemnified Person shall not have, and shall not be entitled to exercise or
assert, or attempt to exercise or assert, any right of contribution or right of
indemnity or any other right or remedy against any Seller Indemnified Person.
7.3.3 Notwithstanding anything to the contrary contained in this
Agreement or otherwise (including, without limitation, the terms of the General
Release),
(a) in the event that any Seller Indemnified Person becomes liable to
any Buyer Indemnified Person, whether under Section 7.2 or otherwise, in no
event shall the aggregate amount of such liability of the Seller Indemnified
Persons (including but not limited to any and all Liabilities of Seller
Indemnified Persons for costs, expenses and attorneys' fees) exceed the amount
of US$100,000.00 (One Hundred Thousand U.S.A. Dollars).
(b) In the event that any Buyer Indemnified Person becomes liable to
any Seller Indemnified Person, whether under Section 7.3 or otherwise, the
aggregate amount of such liability of the Buyer Indemnified Persons (including
but not limited to any and all Liabilities of Buyer Indemnified Persons for
costs, expenses and attorneys' fees) shall not be subject to any maximum amount.
16
8. COVENANT NOT TO COMPETE
(a) For a period of seven (7) years from the Closing Date, Buyer,
Company, the Subsidiary and TB each agrees that it or he shall not:
(i) directly or indirectly, and whether as a principal, agent,
employee or otherwise, or alone or in association with any Person own,
share in the earnings of, invest in the stock, bonds or other
securities of, manage, operate, finance (whether as a lender, investor
or otherwise), Control, participate in the ownership, management,
operation, or Control of, be employed by, associated with, or in any
manner connected with, lend money to, render services or advice to, be
engaged or employed by, or take part in, or, consult or advise, any
other Person that is engaged in any business that the Sellers, Parent
or any of their respective Affiliates conduct as of the Closing Date
within the U.S.A.;
(ii) directly or indirectly: (A) cause or induce, or attempt to
cause or induce, any present or future employee of Sellers, Parent or
any of their respective Affiliates to terminate his or her employment
with the Sellers, Parent or such Affiliates as such employment exists
following the Closing Date; (B) in any way interfere with the
relationship between Sellers, Parent or any such Affiliates and any
such employee; (C) employ, or otherwise engage as an employee,
independent contractor, or otherwise, any employee of Sellers, Parent
or any such Affiliates; or (D) solicit the business of any Person
known to be a customer of Sellers, Parent or any of their respective
Affiliates.
Each of the obligations set out in Section 8(a) is severable and
independent so that if Section 8 (a) or any part or provision of it is
unenforceable then that part shall be deemed eliminated or modified to the
minimum extent necessary to make this Agreement or that part enforceable.
(b) Buyer, Companies and TB each recognizes, acknowledges and agrees
that if Buyer, Companies or TB breach any of the covenants, duties or
obligations set forth in Section 8 (a), Sellers, Parent or any of their
respective Affiliates would encounter extreme difficulty in attempting to prove
the actual amount of damages suffered by them as a result of such breach, and
that Sellers, Parent or any of their respective Affiliates would not be
reasonably or adequately compensated in damages in any action at law. In
addition to any other remedy Sellers, Parent or any of their respective
Affiliates may have at law, in equity, by statute or otherwise, if Buyer,
Companies or TB breach any of their covenants, duties or obligation set forth in
17
Section 8(a), Sellers, Parent or any of their respective Affiliates shall be
entitled to seek and receive temporary, preliminary and permanent injunctive and
other equitable relief to enforce any of the rights of Sellers, Parent or any of
their respective Affiliates without the necessity of proving the amount of any
actual damage resulting therefrom; provided, however, that nothing contained
herein shall be deemed or construed in any manner whatsoever as a waiver by
Sellers, Parent or any of their respective Affiliates of any of the rights that
they may have against Buyer, Companies or TB at law, equity, by statute or
otherwise arising out of, in connection with or resulting from the breach by
Buyer, Companies or TB of any of their covenants, agreements, duties or
obligations under this Agreement.
(c) Buyer, Companies and TB acknowledge that:
(i) the covenants given in Section 8 (a) are material to Sellers'
and Parent's decision to enter into this Agreement; and
(ii) the restraints contained in Section 8 (a) are fair and
reasonable regarding the subject matter, area and duration and are
reasonably required by Sellers, Parent or any of their respective
Affiliates to protect their respective business, financial and
proprietary interests.
(d) Buyer, Companies and TB hereby acknowledge that, except as
expressly set forth in the Tradename Use Agreement, nothing in this Agreement is
intended to grant a license or any rights of any nature whatsoever to any of the
intellectual property rights of Sellers, Parent or any of their respective
Affiliates, which include, but are not limited to, any of their patents, mask
work rights, trademarks, trade names, service marks, logos, copyrights,
derivatives, software or any other intellectual property rights.
9. TERMINATION
The Parties agree that this Agreement is not subject to termination and
that the non-performance by any of the Parties of any of the obligations imposed
on them shall not give rise to any of the other Parties' right to terminate this
Agreement, which right is hereby expressly waived by the Parties. In the event
of such non-performance, strict compliance with the terms of this Agreement may
be demanded together with the recovery of any damages otherwise sustained as a
consequence of such non-performance.
18
10. OTHER TERMS
10.1 EXPENSES; COSTS AND FEES
Except as otherwise expressly provided in this Agreement, the Parties shall
bear their respective expenses, costs and fees incurred in connection with the
preparation, execution, and performance of this Agreement.
10.2 CONFIDENTIALITY
(a) The Parties undertake that they shall treat as strictly
confidential all information received or obtained by them or their employees,
agents or advisers as a result of entering into or performing this Agreement
including information relating to the provisions of this Agreement, the
negotiations leading up to this Agreement or the subject matter of this
Agreement, and subject to the provisions of Section 10.2 (b) that they shall not
at any time hereafter make use of or disclose or divulge to any Person any such
information and shall use their best efforts to prevent the publication or
disclosure of any such information.
(b) The restrictions contained in Section 10.2 (a) shall not apply so
as to prevent the Sellers or Parent from making any disclosure pursuant to any
Legal Requirement or required by any Governmental Body, including any securities
laws or regulations to which any of the Sellers or Parent is subject or from
making any disclosure to any professional advisors for the purpose of obtaining
advice and/or opinion (provided always that the provisions of this Section 10.2
shall apply to such professional advisors) nor shall the restrictions apply in
respect of any information which comes into the public domain otherwise than by
a breach of this Section 10.2.
10.3 NOTICES
All notices, consents, waivers, and other communications required to be
given under this Agreement must be in writing and shall be deemed to have been
duly given when actually received, and may be (i) delivered by hand (with
written confirmation of receipt), (ii) delivered by registered letter (with
return receipt), (iii) sent by facsimile or e-mail with proper evidence of
receipt, or (iv) sent by an internationally recognized overnight delivery
service (receipt requested), in each case to the appropriate addresses set forth
below (or to such other address as either of the Parties may designate by notice
to the other Parties):
19
(a) If to Sellers:
Attention: RURAL/METRO INTERNATIONAL, INC.
Xxxx X. Xxxxx, III
Address: Legal Department
0000 Xxxx Xxxxxx Xxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Facsimile No.: 000-000-0000
E-mail Address: xxxx_xxxxx@xxxxxx.xxx
Attention: RURAL/METRO CORPORATION (ARIZONA)
Xxxx X. Xxxxx, III
Address: Legal Department
0000 Xxxx Xxxxxx Xxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Facsimile No.: 000-000-0000
E-mail Address: xxxx_xxxxx@xxxxxx.xxx
Attention: R/M MANAGEMENT CO., INC.
Xxxx X. Xxxxx, III
Address: Legal Department
0000 Xxxx Xxxxxx Xxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Facsimile No.: 000-000-0000
E-mail Address: xxxx_xxxxx@xxxxxx.xxx
With copy to:
Attention: SQUIRE, XXXXXXX & XXXXXXX
Xxxx X. Xxxxx
Address 00 X. Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Facsimile No.: 602-253.8129
E-mail Address: xxxxxx@xxx.xxx
(b) If to Buyer:
Attention: BANGOR MANAGEMENT CORP.
Mr. Diego Licio
Address: Plaza Independencia 811
Montevideo
Republic of Uruguay
Facsimile No.: 00-00-000-0000
E-mail Address: xxxxxx@xxxxx.xxx.xx
20
(c) If to Companies:
Attention: R/M SERVICIOS DE SALUD E INCENDIOS (BOLIVIA) S.A.
Xx. Xxxxxx Xxxxxxx Xxxxxxxxx
Address: Avenida Seis xx Xxxxxx
Edificio Xxxxx
Xx Xxx
Republic of Bolivia
Facsimile No.: 591-33-367-980
E-mail Address: xxxxxxx@xxxxx.xxx.xxx
Attention: UNIDAD DE EMERGENCIAS MEDICAS S.R.L.
Xx. Xxxxxx Xxxxxxx Xxxxxxxxx
Address: Avenida Seis xx Xxxxxx
Edificio Xxxxx
Xx Xxx
Republic of Bolivia
Facsimile No.: 591-33-367-980
E-mail Address: xxxxxxx@xxxxx.xxx.xxx
(d) If to Parent:
Attention: RURAL/METRO CORPORATION (DELAWARE)
Xxxx X. Xxxxx, III
Address: Legal Department
0000 Xxxx Xxxxxx Xxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Facsimile No.: 000-000-0000
E-mail Address: xxxx_xxxxx@xxxxxx.xxx
With copy to:
Attention: SQUIRE, XXXXXXX & XXXXXXX
Xxxx X. Xxxxx
Address 00 X. Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Facsimile No.: 602-253.8129
E-mail Address: xxxxxx@xxx.xxx
(e) If to TB:
Attention: XXXXXX X. XXXXXXXXX
Address: Barrio Las Palmas
Radial Castilla 510
Santa Xxxx de la Sierra
Republic of Bolivia
Facsimile No.: 591-33-367-980
E-mail Address: xxxxxxx@xxxxx.xxx.xxx
21
10.4 GOVERNING LAW AND JURISDICTION; JURY WAIVER; APPOINTMENT OF AGENT FOR
SERVICE OF PROCESS
(a) This Agreement shall be governed by and construed in accordance
with the laws of the State of Arizona without regard to its principles of
conflict of laws.
(b) Buyer, TB, the Companies and/or any other Person or entity
claiming rights hereunder, hereby consent that any suit or other legal
proceeding initiated by Buyer, TB, the Companies and/or any Person or entity
claiming any right under this Agreement against Sellers or Parent shall be
brought solely in the courts located in Maricopa County, State of Arizona,
U.S.A.
(c) Buyer, TB, the Company and the Subsidiary hereby waives all right
to trial by jury in any court, suit, action, or proceeding arising out of this
Agreement or related to any of the transactions contemplated hereunder.
(d) Buyer, TB, the Company and the Subsidiary hereby irrevocably
designate, appoint, authorize and empower CT Corporation System with offices
currently located at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Process
Agent"), as his/its agent to receive on behalf of himself/itself and his/its
property, service of copies of the summons and complaint and any other process
which may be served in any suit, action or proceeding brought in the courts
located in Maricopa County, State of Arizona, U.S.A.. Such service may be made
by mailing or delivering a copy of such process to the relevant party in care of
the Process Agent at its address specified above, and each of TB, the Buyer, the
Company and the Subsidiary hereby authorize and direct the Process Agent to
accept such service on his/its behalf.
22
10.5 WAIVER
Neither the failure nor any delay by any of the Parties in exercising any
right, power, or privilege under this Agreement or the documents referred to in
this Agreement shall operate as a waiver of such right, power, or privilege, and
no single or partial exercise of any such right, power, or privilege shall
preclude any other or further exercise of such right, power, or privilege or the
exercise of any other right, power, or privilege. To the maximum extent
permitted by applicable law, (i) no claim or right arising out of this Agreement
or the documents referred to in this Agreement can be discharged by one of the
Parties, in whole or in part, by a waiver or renunciation of the claim or right
unless in writing signed by the other Party; (ii) no waiver that may be given by
a Party shall be applicable except in the specific instance for which it is
given; and (iii) no notice to or demand on one of the Parties shall be deemed to
be a waiver of any obligation of such Party or of the right of the Party giving
such notice or demand to take further action without notice or demand as
provided in this Agreement or the documents referred to in this Agreement.
10.6 ENTIRE AGREEMENT
This Agreement supersedes any and all prior agreements among the Parties
with respect to its subject matter and this Agreement, including the Recitals,
constitutes a complete and exclusive statement of the terms and conditions of
the agreement between the Parties with respect to its subject matter.
10.7 ASSIGNMENT, SUCCESSORS, AND NO THIRD-PARTY RIGHT
None of the Parties may assign or otherwise transfer any of its rights
under this Agreement without the express prior written consent of the other
Parties, and any attempted assignment without such consent shall be null and
void.. Nothing expressed or referred to in this Agreement shall be construed to
give any Person, other than the Parties, any legal or equitable right, remedy,
or claim under or with respect to this Agreement or any provision of this
Agreement. This Agreement and all of its provisions and conditions are for the
sole and exclusive benefit of the Parties to this Agreement. This Agreement
shall apply to, be binding in all respects upon, and inure to the sole benefit
of the respective heirs, executors, administrators, successors and permitted
assigns of the Parties, the other Releasors, the other Released Parties, the
other Seller Indemnified Persons and the other Buyer Indemnified Persons.
23
10.8 HEADINGS
The headings of the various sections and paragraphs of this Agreement are
provided for convenience of reference only and shall not be deemed to be part of
this Agreement nor affect its construction or interpretation.
10.9 COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
10.10 FURTHER ASSURANCES
The Parties agree (a) to furnish upon request to each other such further
information, (b) to execute and deliver to each other such other documents, and
(c) to do such other acts and things as may be reasonably requested by another
Party for the purpose of carrying out the intent of this Agreement and the
contemplated transactions.
10.11 USE OF THE ENGLISH LANGUAGE
This Agreement has been executed in the English language and the Parties
hereby expressly agree that the English version of this Agreement shall, at all
time and for all purposes, control and govern the meaning and interpretation of
the matter set forth herein, and that any Spanish version of this Agreement has
been prepared for Buyer's and Companies' convenience only.
[Intentionally Left Blank]
24
IN WITNESS WHEREOF, the Parties executed this Agreement in six (6)
counterparts, in the City of Phoenix, Arizona, U.S.A., on this 27th day of
September 2002.
By: Rural/Metro International Inc. By: Rural/Metro Corporation (Delaware)
/s/ Xxxx X. Xxxxx, III /s/ Xxxx X. Xxxxx, III
------------------------------------- -------------------------------------
Name: Xxxx X. Xxxxx, III Name: Xxxx X. Xxxxx, III
Title: Secretary Title: Senior Vice President and
General Counsel
By: R/M Management Co., Inc. By: Rural/Metro Corporation (Arizona)
/s/ Xxxx X. Xxxxx, III /s/ Xxxx X. Xxxxx, III
------------------------------------- -------------------------------------
Name: Xxxx X. Xxxxx, III Name: Xxxx X. Xxxxx, III
Title: Secretary Title: Secretary
By: Bangor Management Corp. By: R/M Servicios de Salud e
Incendios (Bolivia) S.A.
/s/ Xxxxxx Xxxxxxx Xxxxxxxxx /s/ Xxxxxx Xxxxxxx Xxxxxxxxx
------------------------------------- -------------------------------------
Name: Xxxxxx Xxxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxxxx Xxxxxxxxx
Title: Attorney-in-fact Title: Attorney-in-fact
By: Xxxxxx X. Xxxxxxxxx By: Unidad de Emergencias Medicas
S.R.L.
/s/ Xxxxxx X. Xxxxxxxxx /s/ Xxxxxx Xxxxxxxx Xxxxxxxxx
------------------------------------- -------------------------------------
Name: Xxxxxx Xxxxxxx Xxxxxxxxx
Title: Attorney-in-fact
25
APPENDIX A
FORM OF GENERAL RELEASE
For good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, BANGOR MANAGEMENT CORP., a company duly organized and
existing under the laws of British Virgin Islands (hereinafter referred to as
the "Buyer"), XX. XXXXXX X. Xxxxxxxxx, an individual ("Xxxxxxxxx"), R/M
SERVICIOS DE SALUD E INCENDIOS (BOLIVIA), S.A., a company duly organized and
existing under the laws of the Republic of Bolivia (the "Company"), and its
wholly owned subsidiary, UNIDAD DE EMERGENCIAS MEDICAS S.R.L., a company duly
organized and existing under the laws of the Republic of Bolivia (the
"Subsidiary", and, collectively with the Company, referred to as the
"Companies"), on behalf of themselves (the Buyer, Xxxxxxxxx and the Companies
collectively referred to as the "Releasing Entities") and each of their
respective past, present and future Affiliates (excluding the Released Parties),
and the respective past, present and future officers, directors, employees,
servants, stockholders, agents, representatives, attorneys, insurers, lenders,
creditors, subsidiaries, parents, divisions and other corporate affiliates of
each of the foregoing, and the beneficiaries, heirs, executors, administrators,
predecessors, successors and assigns of each of the foregoing, and all Persons
or entities acting by, through, under, or in concert with any of the foregoing
(collectively, the "Releasors"), hereby irrevocably, jointly and severally,
knowingly and voluntarily, fully and forever, release and discharge:
(A) RURAL/METRO INTERNATIONAL, INC., a company duly organized and existing
under the laws of the State of Delaware, United States of America (the
"Seller"), RURAL/METRO CORPORATION, a company duly organized and
existing under the laws of the State of Delaware, United States of
America, RURAL/METRO CORPORATION, a company duly organized and
existing under the laws of the State of Arizona, United States of
America, and R/M MANAGEMENT CO., INC., a company duly organized and
existing under the laws of the State of Arizona, United States of
America (collectively with Seller, the "Entity Releasees"); and
(b) each of the Entity Releasees' past, present and future Affiliates
(excluding the Releasing Entities), and the respective past, present
and future officers, directors, employees, servants, stockholders,
agents, representatives, attorneys, insurers, lenders, creditors,
subsidiaries, parents, divisions and other corporate affiliates of
each of the foregoing, and the beneficiaries, heirs, executors,
administrators, predecessors, successors and assigns of each of the
foregoing, and all Persons or entities acting by, through, under, or
in concert with any of the foregoing, (collectively with the Entity
Releasees, the "Released Parties"),
from any and all Liabilities and Proceedings, which Releasors may have had or
may now or hereafter have or claim or otherwise assert against or with respect
to any one or more of the Released Parties for, upon or by reason of any matter,
cause or thing whatsoever at any time on or before the date of this Agreement,
including, without limitation, any claim relating to, referring to, arising out
of, or in connection with (i) the Account Payable Obligations, (ii) the
condition or value of the stock, financial statements, general ledgers, books of
accounting, balances, capitalization, equity holdings, and any and all of the
assets, operations, business or properties and Liabilities of the Companies,
(iii) any and all Contracts, agreements, understandings or relationships of any
the Released Parties with any of the Releasors, (iv) any and all rights or
26
entitlements as a shareholder, officer, director, employee, agent, creditor or
otherwise of the Released Parties, as may have been at any time applicable to
Releasors, (v) the Companies or their respective operations or the Released
Parties' ownership of the Company or the Subsidiary, or (vi) any and all other
dealings between or among the parties, or any other claims, demands and
Liabilities arising under any Legal Requirement, including, but not limited to,
breach of contract, express or implied; slander, libel, or defamation of any
kind or nature; tortious interference with contract; public policy torts of any
kind or nature; breach of the covenant of good faith and fair dealing, express
or implied; promissory estoppel; fraudulent concealment of material facts;
breach of warranty, express or implied; breach of implied warranty of
merchantability or fitness for a particular purpose; unjust enrichment; tort
claims of any kind whatsoever; any other common-law or statutory claims
whatsoever; compensatory, consequential or economic damages of any kind;
liquidated or statutory damages; exemplary or punitive damages; litigation
expenses; attorneys' fees; and any and all other damages directly or indirectly
arising out of or connected in any way whatsoever with such Liabilities or
Proceedings.
For purposes of this General Release, the following definitions apply:
"Account Payable Obligations" shall mean certain Liabilities, including without
limitation any net inter-company payable balances to the Companies as of the
date of this Agreement (the "Account Payable Obligations");
"Affiliate" shall mean any Person, which, directly or indirectly, through one or
more intermediaries, has control over or is under the control of one of the
Parties.
"Bolivian. GAAP" shall mean generally accepted accounting principles for
financial reporting in the Republic of Bolivia.
"Contract" shall mean any contract, agreement, commitment, understanding, lease,
license, franchise, warranty, guaranty, mortgage, note, bond, or other
instrument or consensual obligation (whether written or oral and whether express
or implied).
"Governmental Body" shall mean any:
(i) nation, region, state, county, city, town, village, district, or other
jurisdiction;
(ii) federal, state, local, municipal, foreign or other government;
(iii) governmental or quasi-governmental authority of any nature (including
any governmental agency, branch, department, or other entity and any
court or other tribunal);
(iv) multinational organization (to the exclusion of multinational
corporation or similar legal entity);
(v) body exercising, or entitled to exercise any administrative,
executive, judicial, legislative, policy, regulatory, or taxing
authority or power of any nature; and
(vi) official of any of the foregoing.
"Legal Requirement" shall mean any constitution, law, statute, treaty, rule,
regulation, ordinance, binding case law or principle of common law, approval or
Order of any Governmental Body, and any Contract with any Governmental Body
relating to compliance with any of the foregoing.
27
"Liabilities" shall mean all manner and nature whatsoever of any past, present
or future claims, costs, losses, liabilities, obligations, deficiencies,
diminutions of value, expense, debts, sums of money, accounts, reckonings,
bonds, bills, covenants, contracts, agreements, promises, damages, actions,
proceedings, causes of action or suits, judgments, executions and demands,
including without limitation unpaid taxes, fees, levies, duties, tariffs, fines,
penalties and other charges of any kind imposed by any Governmental Body,
whether any of the foregoing arise in law or at equity, whether any of the
foregoing are known or unknown, absolute, accrued, contingent, xxxxxx, inchoate,
or otherwise, due or to become due, and whether any of the foregoing are or are
not required to be reflected on a balance sheet prepared in accordance with (i)
U.S. GAAP or (ii) Bolivian GAAP.
"Order" shall mean any order, injunction, judgement, decree, ruling, assessment
or arbitration award of any Governmental Body or arbitrator.
"Person" shall refer to an individual, or an entity, including a corporation,
share company, limited liability company, partnership, trust, association,
Governmental Body or any other body with legal personality separate from its
equity holders or members.
"Proceedings" shall mean any action, arbitration, audit, hearing, investigation,
litigation, or suit (whether civil, criminal, administrative, judicial or
investigative, whether formal or informal, and whether public or private)
commenced, brought, conducted or heard by or before, or otherwise involving any
Governmental Body or arbitrator.
"U.S. GAAP" shall mean generally accepted accounting principles for financial
reporting in the United States of America.
The Releasing Entities (excluding Xxxxxxxxx) hereby irrevocably, jointly
and severally, knowingly and voluntarily, agree to indemnify, defend and hold
harmless the Released Parties and each of them, for, from and against any and
all Liabilities (whether or not a Proceeding has been commenced) (i) arising
from any matter released herein; and/or (ii) in connection with any Proceeding
contrary to the provisions of this General Release. In this connection, the
Releasing Entities agree that this General Release may be pleaded as a defense
and/or a cross-complaint, counterclaim, cross-claim or third-party complaint in,
and may serve as the basis for an abatement of or injunction against, each such
lawsuit or proceeding.
The Releasing Entities hereby agree that if Releasors, or any Person acting
on behalf of, or in a representative capacity for, Releasors, initiates any
action, proceeding or suit against any Released Party that challenges the
legality, validity or enforceability of any of the terms or provisions of this
General Release, Releasing Entities (excluding Xxxxxxxxx) shall reimburse such
Released Party, if and to the extent such Released Party enforces or defends
this General Release or such Released Party's rights hereunder against such
challenge, for all legal and other costs and expenses incurred by such Released
Party and for all payments made by such Released Party, if any, in connection
with or in satisfaction of any judgment, decree or settlement resulting from any
such action, proceeding or suit.
This General Release is not to be construed as an admission of liability on
the part of any Released Party. This General Release may be modified only by
written agreement of the Releasing Entities and the Entity Releasees. The
provisions of this General Release shall be severable in the event that any
28
provision hereof (including any provision within a single paragraph or sentence)
is held by a court of competent jurisdiction to be invalid, void or otherwise
unenforceable, and the remaining provisions shall remain enforceable to the
fullest extent permitted by law.
This General Release shall be governed by and construed in accordance with
the laws of the State of Arizona without regard to its principles of conflict of
laws. Releasors and/or any other Person claiming rights hereunder, hereby
consent that any suit or other legal proceeding initiated by any of Releasors
and/or any Person claiming any right under this General Release against any
Released Parties shall be brought solely in the courts located in Maricopa
County, State of Arizona, U.S.A. Each of Releasors hereby waives all right to
trial by jury in any court, suit, action, or proceeding arising out of this
General Release or related to any of the transactions contemplated hereunder.
Each of Releasors hereby irrevocably designate, appoint, authorize and empower
CT Corporation System with offices currently located at 0000 Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 (the "Process Agent"), as his/its agent to receive on behalf of
himself/itself and his/its property, service of copies of the summons and
complaint and any other process which may be served in any suit, action or
proceeding brought in the courts located in Maricopa County, State of Arizona,
U.S.A. Such service may be made by mailing or delivering a copy of such process
to the relevant Party in care of the Process Agent at its address specified
above, and each of the Releasing Entities hereby authorizes and directs the
Process Agent to accept such service on his/its behalf.
Releasors expressly assume the risk of any mistake of fact in connection
with the true facts involved in the foregoing matters, and with respect to any
facts which are now unknown to Releasors or to Releasors' agents or
representatives relating thereto.
In executing this General Release, Releasors are not relying and have not
relied upon any oral representation or statement made by any Released Party.
Releasors hereby represent and warrant that: (i) Releasors have read each and
every provision of this General Release; (ii) Releasors fully understand the
nature and consequences of the terms of this General Release and agree to be
legally bound by them; (iii) Releasors execute this General Release with full
knowledge of any and all rights which Releasors have and may have; (iv)
Releasors have received or have had the opportunity to receive independent legal
advice from Releasors' attorney with respect to Releasors' rights herein waived;
and (v) Releasors have full and complete authority and legal capacity to execute
this General Release on behalf of themselves or himself and each of Releasors'
Affiliates.
[Intentionally Left Blank]
29
Wherefore, the authorized representatives of the undersigned Releasing Entities
have executed this Agreement as of _________ __, 2002.
By: Bangor Management Corp By: Xxxxxx X. Xxxxxxxxx
--------------------------------- ---------------------------------
Name: Xxxxxx Xxxxxxx Xxxxxxxxx
Title: Attorney-in-fact
By: R/M Servicios de Salud e By: Unidad de Emergencias
Incendios (Bolivia) S.A. Medicas S.R.L.
--------------------------------- ---------------------------------
Name: Xxxxxx Xxxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxxxx Xxxxxxxxx
Title: Attorney-in-fact Title: Attorney-in-fact
00
XXXXXXXX X
SELLERS' CLOSING DOCUMENTS DELIVERED PURSUANT TO SECTION 3.1 (A)
ANNEX B.1 Statement in connection with the procedure associated with the
transfer of the Shares Certficates of R/M Servicios de Salud e
Incendios (Bolivia) S.A., the reissuance of lost certificates and
the time delay involved.
ANNEX B.2 Board of Directors' Resolutions approving the sale of the Shares
of R/M Servicios de Salud e Incendios (Bolivia) S.A., as adopted
by:
* R/M Management Co.
* Rural/Metro Corporation (Arizona)
* Rural/Metro International, Inc.
ANNEX B.3 Minute Book for R/M Servicios de Salud e Incendios (Bolivia) S.A.
ANNEX B.4 Minute Book for Unidad de Emergencias Medicas S.R.L.
31
APPENDIX C
BUYER'S CLOSING DOCUMENTS DELIVERED PURSUANT TO SECTION 3.1 (B)
ANNEX C.1 Powers of Attorney evidencing the legal authority to execute and
deliver the Stock Purchase Agreement for the signatories of the
following entities:
* Bangor Management Corp.
* R/M Servicios de Salud e Incendios (Bolivia) S.A.
* Unidad de Emergencias Medicas S.R.L.
ANNEX C.2 Board of Directors' Resolution or, as applicable, Quotaholders'
Resolution approving and ratifying the terms and conditions of
the General Release referred to in Section 2.2 (a) of the Stock
Purchase Agreement, as such were adopted, respectively, by:
* R/M Servicios de Salud e Incendios (Bolivia) S.A.Ecco
S.A.
* Unidad de Emergencias Medicas S.R.L.
ANNEX C.3 Minutes of Shareholders' Meetings held on the Closing Date (a)
approving and ratifying (i) the transfer and registration of the
Shares, (ii) the actions and duties of the Board of Directors as
discharged up to and as of the Closing Date, and (b) confirming
the existing Board Members in their office, as adopted by:
* R/M Servicios de Salud e Incendios (Bolivia) S.A.
ANNEX C.4 Minutes of Quotaholders' Resolution adopted on the Closing Date
(a) approving and ratifying the actions and duties of the
Managers as discharged up to and as of the Closing Date, (b)
confirming the existing Managers in their existing office, and
(c) ratifying the revocation of all Powers of Attorney, as
adopted by:
* Unidad de Emergencias Medicas S.R.L.
ANNEX C.5 Board of Directors' Resolution adopted on the Closing Date (a)
acknowledging the transfer of the Shares, and (b) approving and
ratifying the revocation of all Powers of Attorney, as adopted
by:
* R/M Servicios de Salud e Incendios (Bolivia) S.A.
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