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EXHIBIT 2.4
ASSET PURCHASE AGREEMENT
BETWEEN
CUSTOMERONE CORPORATION,
CANADIAN ACCESS INSURANCE SERVICES INC.
AND
THE STOCKHOLDERS OF
CANADIAN ACCESS INSURANCE SERVICES INC.
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Dated as of March 19, 1999
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TABLE OF CONTENTS
ARTICLE 1 PURCHASE OF ASSETS................................................................1
1.1 Purchase and Sale of Assets...........................................................1
(a) Contract Rights..............................................................1
(b) Intellectual Property........................................................1
(c) Books and Records............................................................2
1.2 Excluded Assets.......................................................................2
ARTICLE 2 ASSUMPTION OF LIABILITIES.........................................................2
ARTICLE 3 PURCHASE PRICE AND CLOSING........................................................2
3.1 Purchase Price........................................................................2
3.2 Adjustment of Purchase Price..........................................................3
3.3 Allocation of Purchase Price..........................................................4
3.4 Closing...............................................................................4
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF PURCHASER.......................................5
4.1 Due Organization......................................................................5
4.2 Authorization and Effect of Agreement.................................................5
4.3 No Restrictions Against Purchase of Assets............................................5
ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF SELLER AND THE STOCKHOLDERS.....................6
5.1 Due Organization......................................................................6
5.2 Authorization and Effect of Agreement.................................................6
5.3 No Restrictions Against Sale of the Assets............................................6
5.4 Conduct of Business; Certain Actions..................................................7
5.5 Condition of Assets; Title to Assets..................................................7
5.6 Intellectual Property Rights..........................................................7
5.7 Compliance with Laws..................................................................8
5.8 Contracts and Agreements..............................................................8
5.9 Claims and Proceedings................................................................8
5.10 Certain Consents......................................................................8
5.11 Year 2000 Compliance..................................................................8
5.12 Information Furnished.................................................................8
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5.13 Stockholders of Seller................................................................9
5.14 No Tax Witholding.....................................................................9
ARTICLE 6 COVENANTS.........................................................................9
6.1 Employees.............................................................................9
6.2 Discharge of Business Obligations.....................................................9
6.3 Maintenance of Books and Records......................................................9
6.4 Certain Tax Matters..................................................................10
ARTICLE 7 CONDITIONS TO CLOSING............................................................11
7.1 Conditions Precedent to Obligations of Purchaser.....................................11
7.2 Conditions to Obligations of Seller..................................................13
ARTICLE 8 SURVIVAL AND INDEMNIFICATION.....................................................14
8.1 Survival of Representations, Warranties and Covenants................................14
8.2 Certain Definitions..................................................................14
8.3 Indemnification......................................................................15
8.4 Defense of Claims....................................................................15
8.5 Limitation on Liability; Setoff Right................................................16
ARTICLE 9 MISCELLANEOUS PROVISIONS.........................................................17
9.1 Invalid Provisions...................................................................17
9.2 Notices..............................................................................17
9.3 Expenses.............................................................................18
9.4 Successors and Assigns...............................................................18
9.5 Waiver...............................................................................19
9.6 Entire Agreement.....................................................................19
9.7 Amendments and Supplements...........................................................19
9.8 No Third-Party Beneficiaries.........................................................19
9.9 Further Assurances...................................................................19
9.10 Transfers............................................................................19
9.11 Governing Law........................................................................19
9.12 Execution in Counterparts............................................................19
9.13 Titles and Headings..................................................................19
9.14 Passage of Title and Risk of Loss....................................................19
9.15 Certain Interpretive Matters and Definitions.........................................20
9.16 No Recourse..........................................................................20
9.17 Arbitration to Enforce Agreement.....................................................20
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ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (this "Agreement") is made and entered into as
of March ___, 1999, by and among Canadian Access Insurance Services Inc., an
Ontario corporation ("Seller"), the stockholders of Seller listed on Annex A
attached hereto (individually, a "Stockholder" and collectively, the
"Stockholders") and CustomerONE Corporation, a Delaware corporation
("Purchaser").
RECITALS:
Seller desires to sell and Purchaser desires to purchase certain of the
assets and rights of Seller which have been used in the operation of that
portion of Seller's business related to the platform developed by Seller and
Axint Technologies, Inc. ("Axint") in order to effect sales to and on behalf of
insurance companies (the "Business") and, in connection with such purchase and
sale, Purchaser is willing to pay certain consideration to Seller and to assume
certain of Seller's obligations and liabilities, all on the terms and subject to
the conditions set forth in this Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
PURCHASE OF ASSETS
1.1 Purchase and Sale of Assets. On the terms and subject to the conditions
set forth in this Agreement, at the Closing (as such term is defined in Section
3.4 of this Agreement), Seller will sell, transfer, convey, assign and deliver
to Purchaser, and Purchaser will purchase and acquire for the Purchase Price (as
such term is defined in Section 3.1 hereof), all right, title and interest of
Seller in and to the rights and assets of Seller described in Schedule 1.1(a)
and Schedule 1.1(b)(ii) attached hereto which have been used in connection with
the Business, wherever located (collectively, the "Assets"), free and clear of
all mortgages, liens, pledges, security interests, charges, claims, rights of
third parties, restrictions and encumbrances of any nature whatsoever,
including, without limitation, all of Seller's right, title and interest in and
to the rights and assets described in this Section 1.1:
(a) Contract Rights. All rights and incidents of interest as of the
Closing in and to the contracts (the "Contracts"), that are described on
Schedule 1.1(a) attached hereto;
(b) Intellectual Property. All right, title and interest in and to the
software and software applications owned or licensed by Seller and used by
Seller in the operation of the Business, excluding Microsoft Word and other
off-the-shelf software described in Schedule 1.1(b)(i) attached hereto or any
program used by Seller for which Purchaser currently has a license, and all
trade secrets, technical knowledge, know-how and other confidential proprietary
information and related ownership, use and other rights of Seller relating to
such software used in the Business, including but not limited to those
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listed or described on Schedule 1.1(b)(ii) attached hereto (collectively, the
"Intellectual Property");
(c) Books and Records. All books and records of Seller, or copies
thereof, relating to the Business, including records or copies thereof relating
to any employees of Seller to be employed by Purchaser or North Direct Response
Inc. ("NDR") in connection with Purchaser's acquisition of the Assets including,
without limitation, records relating to software research and development or
otherwise relating to the software acquired by Purchaser as part of the acquired
Assets.
1.2 Excluded Assets. Any right or asset of Seller not referenced in Section
1.1, or any schedule thereto, will not be included in the Assets acquired by
Purchaser.
ARTICLE 2
ASSUMPTION OF LIABILITIES
Purchaser does not assume or agree to pay, satisfy, discharge or perform,
and will not be deemed by virtue of the execution and delivery of this Agreement
or any document delivered at the Closing pursuant to this Agreement, or as a
result of the consummation of the transactions contemplated by this Agreement,
to have assumed, or to have agreed to pay, satisfy, discharge or perform, any
liability, obligation or indebtedness of Seller, whether primary or secondary,
direct or indirect.
ARTICLE 3
PURCHASE PRICE AND CLOSING
3.1 Purchase Price. Subject to the adjustments provided for in Section 3.2
hereof, the purchase price payable by Purchaser to Seller for the Assets shall
be Three Million One Hundred Thousand Dollars U.S. ($3,100,000 U.S.) (as
adjusted, the "Purchase Price"), payable as follows:
(a) by Purchaser's delivery to Seller at Closing, by wire transfer or
by certified check, of the amount of One Million Dollars U.S. ($1,000,000 U.S.)
payable to Seller, or to such other person(s) as Seller shall designate;
(b) by Purchaser's payment to Axint of a maximum aggregate amount of
Six Hundred Thousand Dollars U.S. ($600,000 U.S.), on the terms described in
Schedule 3.1(b) hereto; and
(c) subject to Section 3.2 hereof, by Purchaser's payment to Seller, or
to such other person(s) as Seller shall designate, of the following amounts:
(i) the sum of Five Hundred Thousand Dollars U.S. ($500,000 U.S.)
on June 19, 2000;
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(ii) the sum of Five Hundred Thousand Dollars U.S. ($500,000 U.S.)
on June 19, 2001; and
(iii) the sum of Five Hundred Thousand Dollars U.S. ($500,000 U.S.)
on June 19, 2002.
3.2 Adjustment of Purchase Price. The Purchase Price payable by Purchaser to
Seller pursuant to Section 3.1 shall be subject to adjustment as follows:
(a) in the event that:
(i) the actual revenues (determined by calculating actual service
fees invoiced to clients, less any issued credits, any reserve for bad debt
and any costs of a pass-through nature (including, without limitation,
telephony, administrative costs and postage, determined in accordance with
generally accepted accounting principles, consistently applied) (the
"Revenues") of that separate portion of the insurance division of Purchaser,
or any affiliate thereof, which uses the platform developed by Seller and
Axint in order to effect sales to insurance companies (the "CA Platform")
for the fifteen (15) month period ending June 19, 2000 are less than Ten
Million Dollars U.S. ($10,000,000 U.S.); and
(ii) fewer than three hundred (300) call center seats used to sell
insurance using the CA Platform (collectively, the "Seats") have been sold
during the twelve (12) month period ending March 19, 2000, and installed and
invoiced within the fifteen (15) month period ending June 19, 2000, then the
amount payable by Purchaser to Seller pursuant to Section 3.1(c)(i) shall be
reduced to zero; provided, however, that in the event that no fewer than one
hundred fifty (150) Seats have been sold during the twelve (12) month period
ending March 19, 2000, and (i) at least three hundred (300) Seats have been
sold during the eighteen (18) month period ending September 19, 2000, and
installed and invoiced within the twenty-one month period ending December
19, 2000, and (ii) as of September 19, 2000 the Revenue test established in
Section 3.2(a)(i) has been satisfied, then the amount previously payable by
Purchaser to Seller pursuant to Section 3.1(c)(i) shall be paid to Seller on
December 19, 2000.
(b) in the event that:
(i) the Revenues of that separate portion of the insurance division
of Purchaser, or any affiliate thereof, which uses the CA Platform for the
twenty-seven (27) month period ending June 19, 2001 are less than Thirty
Million Dollars U.S. ($30,000,000 U.S.); and
(ii) fewer than six hundred (600) Seats have been sold during the
twenty-four (24) month period ending March 19, 2001, and installed and
invoiced within the twenty-seven (27) month period ending June 19, 2001,
then
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the amount payable by Purchaser to Seller pursuant to Section 3.1(c)(ii)
shall be reduced to zero; and
(c) in the event that:
(i) the Revenues of that separate portion of the insurance division
of Purchaser, or any affiliate thereof, which uses the CA Platform for the
thirty-nine (39) month period ending June 19, 2002 are less than Fifty
Million Dollars U.S. ($50,000,000 U.S.); and
(ii) fewer than nine hundred (900) Seats have been sold during the
thirty-six (36) month period ending March 19, 2002, and installed and
invoiced within the thirty-nine (39) month period ending June 19, 2002, then
the amount payable by Purchaser to Seller pursuant to Section 3.1(c)(iii)
shall be reduced to zero.
For purposes of this Section 3.2, where Revenues of the insurance division
must be calculated to determine whether a performance threshold has been
satisfied, at least eight-five percent (85%) of the Revenues included in any
such calculation must be generated by Purchaser's call center, unless
Purchaser shall agree otherwise in writing.
3.3 Allocation of Purchase Price. Seller and Purchaser, in conjunction with
their respective accountants, will agree upon the allocation of the Purchase
Price for the Assets as set forth on Schedule 3.3 attached hereto (the
"Allocation"). Purchaser and Seller agree to prepare and to file all income tax
returns (including, if applicable, U.S. Form 8594) in a manner consistent with
the Allocation and will not in connection with the filing of such returns make
any allocation which is contrary to the Allocation except for buying and selling
expenses incurred by Seller and Purchaser. Purchaser and Seller agree to consult
with each other with respect to all issues related to such Allocation in
connection with any tax audit, controversy or litigation. No party hereto shall
take or shall agree to any position inconsistent with the Allocation in
connection with any tax audit, controversy or litigation which would adversely
affect the taxes of any other party hereto to any material extent without the
prior written consent of such other party. Such consent shall not be
unreasonably withheld, and shall not be necessary to the extent the party which
takes or agrees to such inconsistent position has indemnified the other party
against the effects of such action.
3.4 Closing. Subject to the satisfaction or waiver of all of the conditions
to Closing set forth in Article 7, the consummation of the purchase and sale of
the Assets contemplated hereby (the "Closing") shall take place on March ___,
1999 at the offices of Xxxxxxx Xxxxx & Xxxxxxxxx, Scotia Plaza, Suite 2100, 00
Xxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxxx X0X 0X0 (or at such other place as the parties
may designate) or such other date designated by the parties in writing. The date
on which the Closing is effected is referred to in this Agreement as the
"Closing Date."
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller and the Stockholders as follows
(with the understanding that Seller and the Stockholders are relying materially
on such representations and warranties in entering into and performing this
Agreement):
4.1 Due Organization. Purchaser is a corporation, validly existing and in
good standing under the laws of the State of Delaware, and has the requisite
corporate power and authority to own, lease or otherwise hold its properties and
assets and to carry on its business as presently conducted.
4.2 Authorization and Effect of Agreement. Purchaser has the requisite
corporate power to execute and to deliver this Agreement and to perform the
transactions contemplated hereby to be performed by Purchaser. The execution and
delivery by Purchaser of this Agreement and the performance by Purchaser of the
transactions contemplated hereby to be performed by Purchaser have been duly
authorized by all necessary corporate action on the part of Purchaser. This
Agreement has been duly executed and delivered by Purchaser and, assuming the
due execution and delivery of this Agreement by Seller and the Stockholders,
constitutes a valid and binding obligation of Purchaser, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights in general and subject to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
4.3 No Restrictions Against Purchase of Assets. The execution and the
delivery of this Agreement by Purchaser does not, and the performance by
Purchaser of the transactions contemplated hereby to be performed by it will
not, (a) conflict with the certificate of incorporation or the bylaws of
Purchaser, (b) conflict with, or result in any violation of, or constitute a
default (with or without notice or lapse of time, or both) under, or give rise
to a right of termination, cancellation or acceleration of any obligation or to
loss of a benefit under, any material contract or permit, order, judgment or
decree to which Purchaser is a party or by which it is bound, or (c) constitute
a violation of any federal, state, provincial, county or local law, rule or
regulation applicable to Purchaser. No consent, approval, order or authorization
of, or registration, declaration or filing with any domestic or foreign court,
government, governmental agency, authority, entity or instrumentality (each a
"Governmental Entity") is required to be obtained or made by, or with respect
to, Purchaser in connection with the execution and delivery of this Agreement by
Purchaser or the performance by Purchaser of the transactions contemplated
hereby, except as listed or described on Schedule 4.3.
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ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF SELLER AND THE STOCKHOLDERS
Seller and the Stockholders, jointly and severally, represent and warrant to
Purchaser as follows (with the understanding that Purchaser is relying
materially on each such representation and warranty in entering into and
performing this Agreement):
5.1 Due Organization. Seller is a corporation validly existing and in good
standing under the laws of the Province of Ontario and has the requisite
corporate power and authority to own, lease or otherwise hold its properties and
assets and to carry on its business as presently conducted. Seller is qualified
to do business and is in good standing in the jurisdictions set forth on
Schedule 5.1 attached hereto, which jurisdictions represent every jurisdiction
where such qualification is required.
5.2 Authorization and Effect of Agreement. Seller has the requisite
corporate power to execute and to deliver this Agreement and the Xxxx of Sale
and Assignment Agreement (the "Related Document") and to perform the
transactions contemplated hereby and thereby. The execution and delivery by
Seller of this Agreement and the Related Document and the performance by Seller
of the transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of Seller and the shareholders of Seller.
The Stockholders have the capacity to execute and to deliver this Agreement and
to perform their obligations hereunder. This Agreement has been duly executed
and delivered by Seller and the Stockholders and, assuming the due execution and
delivery of this Agreement by Purchaser, constitutes a valid and binding
obligation of Seller and the Stockholders, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights in general and subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
5.3 No Restrictions Against Sale of the Assets. The execution and delivery
of this Agreement and the Related Document by Seller and the Stockholders does
not, and the performance by Seller of the transactions, and the Stockholders of
their obligations, contemplated hereby and thereby to be performed by Seller and
the Stockholders will not, (a) conflict with the charter or bylaws of Seller,
(b) conflict with, or result in any violation of, or constitute a default (with
or without notice or lapse of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of any obligation or to loss of a
benefit under, any material contract or permit, order, judgment or decree to
which either Seller or any Stockholder is a party or by which Seller or any
Stockholder is bound, or (c) constitute a violation of any federal, state,
provincial, county or local law, rule or regulation applicable to Seller or the
Stockholders or any order, writ or injunction of any Governmental Entity. No
consent, approval, order or authorization of, or registration, declaration or
filing with any Governmental Entity or other third party is required to be
obtained or made by or with respect to Seller or any Stockholder in connection
with the execution and delivery of this Agreement by Seller and the
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Stockholders or the performance by Seller of the transactions, or the
Stockholders of their obligations, contemplated hereby, except as listed or
described on Schedule 5.3.
5.4 Conduct of Business; Certain Actions. Except as set forth on Schedule
5.4 attached hereto, since January 1, 1999, Seller has conducted its business
and its operations in the ordinary course and consistent with past practices and
has not:
(a) amended or experienced a termination of any contract, agreement,
lease, franchise or license with respect to the Assets;
(b) entered into any other material transactions with respect to the
Assets except in the ordinary course of business;
(c) suffered any material damage, destruction or loss (whether or not
covered by insurance) to any of the Assets to be acquired by Purchaser; or
(d) experienced any claim, assertion, event or condition that has had,
or could reasonably be expected to result in, a material adverse effect with
respect to the Assets to be acquired by Purchaser.
5.5 Condition of Assets; Title to Assets.
(a) The Assets, where applicable, are in good operating condition,
subject to normal wear and maintenance, are usable in the regular and ordinary
course of business and conform to all applicable laws, ordinances, codes, rules
and regulations, and permits relating to their construction, use and operation.
(b) Except as listed or as described on Schedule 5.5 attached hereto,
Seller has, and following the Closing, Purchaser will have, good, valid and
marketable title to the Assets, free and clear of all title defects or
objections, mortgages, liens, claims, charges, pledges, or other encumbrances of
any nature whatsoever, including, without limitation, licenses, leases, chattel
or other mortgages, collateral security arrangements, pledges, title
imperfections, defect or objection liens, security interests, conditional and
installment sales agreements, charges or restrictions of any kind and other
title or interest retention arrangements, reservations or limitations of any
nature (collectively, the "Liens").
5.6 Intellectual Property Rights. Except with respect to the licensed
software described in Schedule 1.1(a), Seller has good and marketable title to
such Assets and all inventions, processes, designs, formulae, trade secrets and
know-how necessary for the operation of the Assets (except for know-how
Purchaser is acquiring from Axint), without the payment of any royalty or
similar payment. Seller is not infringing any Intellectual Property of others,
and neither Seller nor any of the Stockholders are aware of any infringement by
others of any such rights owned by Seller. The software listed on Schedules
1.1(a), 1.1(b)(i) and 1.1(b)(ii) attached hereto, together with the software
developed by Axint, constitutes all of the software owned or licensed by Seller
and used in the operation of the Business.
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5.7 Compliance with Laws. Seller has complied in all material respects, and
is in compliance in all material respects, with all laws, regulations and orders
with respect to the operation of the Assets.
5.8 Contracts and Agreements. Any Contract which comprises a portion of the
Assets acquired by Purchaser is valid and enforceable in accordance with its
terms; Seller is in compliance with the provisions thereof; neither Seller nor,
to Seller's or any Stockholder's knowledge, any third party is in default in the
performance, observance or fulfillment of any obligation, covenant or condition
contained therein; and no event has occurred which, with or without the giving
of notice or lapse of time, or both, would constitute a default thereunder.
Furthermore, no such Contact contains any contractual requirement with which
there is a reasonable likelihood Seller or any other party thereto will be
unable to comply.
5.9 Claims and Proceedings. Attached hereto as Schedule 5.9 is a list and
description of all claims, actions, suits, proceedings and investigations
pending or threatened against Seller with respect to the operation of the Assets
to be acquired by Purchaser or otherwise. No inquiry, action or proceeding has
been asserted, instituted or, to the best knowledge of Seller and the
Stockholders, threatened to restrain or to prohibit the carrying out of the
transactions contemplated by this Agreement or to challenge the validity of such
transactions or any part thereof or seeking damages on account thereof.
5.10 Certain Consents. Seller has obtained, or at Closing will have
obtained, the consents, waivers or approvals listed on Schedule 5.10 attached
hereto required to be executed and/or obtained by the Seller from third parties
in connection with the execution, delivery and performance of this Agreement and
each other agreement, instrument and document required to be executed by the
Seller in connection herewith, and the actions contemplated hereby or thereby.
5.11 Year 2000 Compliance. Except as set forth in Schedule 5.11 hereto, all
information systems (including operating systems, applications and databases)
used by Seller, which are to be acquired by Purchaser from Seller, have been
programmed (whether through original programming or subsequent modification) to
accurately reflect data in the year 2000 and in subsequent years. With respect
to information systems that are not year 2000 compliant, Schedule 5.11
identifies the steps Seller plans to take to make these information systems year
2000 compliant on behalf of Purchaser.
5.12 Information Furnished. Seller has made available to Purchaser and its
officers, attorneys, accountants and representatives true and correct copies of
all agreements, documents and other items listed on the schedules to this
Agreement and all books and records of Seller relating to the Assets, and
neither the representations and warranties of Seller or the Stockholders
contained in this Agreement or in the schedules attached hereto nor any
information provided by Seller or the Stockholders, agreements or documents
delivered to or made available to and reviewed by Purchaser or its officers,
attorneys, accountants or representatives pursuant to this Agreement in
connection with the acquisition of the Assets contain any untrue statement of a
material fact or omit to
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state any material fact necessary to make the statements made herein or therein,
as the case may be, not misleading.
5.13 Stockholders of Seller. The Stockholders listed on Annex A constitute
all of the registered shareholders of Seller.
5.14 No Tax Witholding. The transactions contemplated by this Agreement are
not subject to U.S. tax withholding pursuant to the provisions of Section 3406
of the U.S. Internal Revenue Code of 1986, as amended, (the "Code") or
Subchapter A of Chapter 3 of the Code, or any other similar provision.
ARTICLE 6
COVENANTS
6.1 Employees. As of the Closing Date, Purchaser, or NDR, shall offer
employment, on substantially the same terms and conditions, to, and Seller shall
use its best efforts to assist Purchaser in employing as new employees of
Purchaser, all of the persons listed on Schedule 6.1 attached hereto (the
"Employees"). Seller shall terminate, effective as of the Closing Date, all
employment arrangements it has with any of the Employees. Purchaser or NDR shall
be responsible for any severance or similar obligations arising from the
transaction contemplated hereby; provided, however, that in the event that
Purchaser or NDR shall terminate any Employee within ninety (90) days of
Closing, Seller shall indemnify Purchaser or NDR, in accordance with Article 8
hereof, for any severance amount due Employee as a result of such termination.
In the event that any Employee who has not been terminated by Purchaser or NDR
within ninety (90) days of Closing brings any claim against Seller with respect
to any severance amount due Employee following Employee's termination, Purchaser
shall indemnify Seller, in accordance with Article 8 hereof, for any severance
amount due Employee as a result of such termination.
6.2 Discharge of Business Obligations. From and after the Closing Date,
Seller shall pay and shall discharge, in accordance with past practice but not
less than on a timely basis, all obligations and liabilities incurred prior to
the Closing Date with respect to the operation of the Assets.
6.3 Maintenance of Books and Records. Each of Seller and Purchaser shall
preserve, or shall cause to be preserved, until the fifth anniversary of the
Closing Date originals or copies of all material records in the possession or
control of such party at Closing or which come into the possession or control of
such party following Closing, to which such party is entitled, relating to any
of the assets, liabilities or business of such party prior to the Closing Date.
After the Closing Date, where there is a legitimate purpose, such party shall
provide the other party with access, upon prior reasonable written request
specifying the need therefor, during regular business hours, to (i) the officers
and employees of such party and (ii) the corporate records and books of account
and records of such party, but, in each case, only to the extent relating to the
Assets, liabilities or business of such party prior to the Closing Date, and the
other party and its
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representatives shall have the right to make copies of such books and records;
provided, however, that the foregoing right of access shall not be exercisable
in such a manner as to interfere unreasonably with the normal operations and
business of such party; and further, provided, that, as to so much of such
information as constitutes trade secrets or confidential business information of
such party, the requesting party and its officers, directors and representatives
will use due care to not disclose such information except (i) as required by
law, (ii) with the prior written consent of such party, which consent shall not
be unreasonably withheld, or (iii) where such information becomes available to
the public generally, or becomes generally known to competitors of such party,
through sources other than the requesting party, its affiliates or its officers,
directors or representatives. Such records may nevertheless be destroyed by a
party if such party sends to the other party written notice of its intent to
destroy records, specifying with particularity the contents of the records to be
destroyed. Such records may then be destroyed after the 30th day after such
notice is given unless another party objects to the destruction, in which case
the party seeking to destroy the records shall either agree to retain such
records or deliver such records to the objecting party. Notwithstanding the
foregoing, Seller shall have no continuing obligation to provide Purchaser with
access to any books and records which have been delivered by Seller to Purchaser
at Closing pursuant to Section 1.1(c) of this Agreement. Seller also shall be
entitled to reasonable access following the Closing to any books and records
which have been delivered by Seller to Purchaser relating to the Assets and
shall be entitled to audit any records which relate to Seller's right to receive
payments in accordance with Sections 3.1 and 3.2 hereof.
6.4 Certain Tax Matters.
(a) All sales, use, transfer, stamp, conveyance, value added or other
similar taxes, duties, excises or governmental charges imposed by any taxing
jurisdiction, domestic or foreign, and all recording or filing fees, notarial
fees and other similar costs of Closing with respect to the transfer of the
Assets or otherwise on account of this Agreement or the transactions
contemplated hereby will be borne by Purchaser, other than any filings required
with respect to the release of any Liens. Seller will indemnify Purchaser
against any liability, direct or indirect, for any taxes imposed on Purchaser
with respect to the Assets that are attributable to any taxable periods ending
on, or prior to, the Closing Date or with respect to the allocable portion of
any taxable period that includes but does not end on the Closing Date.
(b) Purchaser will prepare and will file, or will cause to be prepared
and filed, all tax returns with respect to the operation of the Assets required
to be filed with the appropriate federal, state, provincial and local agencies
for all taxable periods for which tax returns are due with respect to the
operation of the Assets following the Closing Date. Purchaser will make all
payments required with respect to any such tax returns. The preceding sentence
will not limit or relieve Seller of its obligation to reimburse Purchaser
concurrently therewith to the extent that any payment by Purchaser relates to
the operation of the Assets for any period ending on or before the Closing Date
or with respect to the allocable portion of any taxable period that includes but
does not end on the Closing Date.
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(c) Seller will prepare and file or cause to be prepared and filed all
tax returns for the Seller that are required to be filed with respect to the
operation of the Assets, other than tax returns that Purchaser is obligated to
prepare and file pursuant to Section 6.4(b), with the appropriate federal,
state, provincial and local agencies with respect to the operation of the Assets
prior to the Closing Date and, except as provided in Section 6.4(a), the sale of
the Assets. Seller will pay or cause to be paid all taxes required to be paid
with respect to such tax returns. Seller will pay all taxes that are imposed
with respect to the operation of the Assets or with respect to the allocable
portion of any taxable period that includes, but does not end on, the Closing
Date (or, if applicable, reimburse Purchaser for the payment of such taxes)
attributable to taxable periods ending on or prior to the Closing Date. The
amount of taxes attributable to a portion of a taxable period that includes but
does not end on the Closing Date shall be determined pursuant to the interim
closing of the books method.
ARTICLE 7
CONDITIONS TO CLOSING
7.1 Conditions Precedent to Obligations of Purchaser. The obligations of
Purchaser under this Agreement to consummate the transactions contemplated
hereby will be subject to the satisfaction, at or prior to Closing, of all of
the following conditions, any one or more of which may be waived at the option
of Purchaser:
(a) Seller shall have performed and complied with all of the agreements
required by this Agreement to be performed or complied with by Seller at or
prior to the Closing Date and Purchaser shall have received a certificate, dated
as of the Closing Date, signed by a duly authorized officer of Seller to the
foregoing effect;
(b) No action or proceeding shall have been instituted or threatened
for the purpose, or with the probable or reasonably likely effect, of enjoining
or preventing the consummation of this Agreement or seeking damages on account
thereof;
(c) Purchaser shall have received an opinion of Xxxxxxx Xxxxx &
Xxxxxxxxx, counsel for the Seller, dated as of the Closing Date, in
substantially the form attached hereto as Exhibit 7.1(c);
(d) Prior to the Closing, there shall not have occurred any material
casualty, damage or detriment (whether or not insured) to any of the Assets or
to the Business represented by the Assets and there shall not have occurred any
material adverse change with respect to either the Assets or the Business;
(e) All consents and approvals required to be delivered by Seller in
connection with the execution, delivery and performance of this Agreement shall
have been obtained and Seller shall have delivered evidence thereof to
Purchaser;
(f) All necessary action (corporate or otherwise) shall have been taken
by Seller, the shareholders of Seller and each Stockholder to authorize, approve
and adopt this Agreement and the consummation and performance of the
transactions
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contemplated hereby, and Purchaser shall have received a certificate, dated as
of the Closing Date, of a duly authorized representative of Seller to the
foregoing effect;
(g) Seller shall have delivered a Xxxx of Sale and Assignment
Agreement, and other good and sufficient instruments of transfer as Purchaser
may reasonably request, conveying and transferring to Purchaser title to the
Assets, duly executed by Seller;
(h) Purchaser or NDR shall have entered into employment agreements, in
form and substance reasonably satisfactory to Purchaser, with Xxxx Xxxx and Xxxx
Xxxx and Purchaser or one of its affiliates shall have entered into consulting
agreements in form and substance reasonably satisfactory to Purchaser with Xxxx
Xxxxxxxxx and Xxxxx Xxxxxxx;
(i) Purchaser shall have received evidence satisfactory to Purchaser
that any Liens on the Assets have been released, terminated or otherwise
discharged;
(j) Seller shall have executed and delivered each agreement, instrument
and document required to be executed by Seller in connection herewith;
(k) Seller shall have delivered to Purchaser such good standing
certificates, officers' certificates and similar documents and certificates as
counsel for Purchaser shall have reasonably requested prior to the Closing Date;
(l) Seller shall have provided Purchaser with an irrevocable direction
(attached hereto as Schedule 7.1(1)) regarding payment of any part of the
contingent purchase price payable by Purchaser to Seller for the Assets pursuant
to Sections 3.1(c) and 3.2 of this Agreement;
(m) Seller shall have terminated its software license agreement with
Axint and Purchaser shall have entered into both a Computer Program End-User
License Agreement and a Custom Modification Agreement with Axint;
(n) Purchaser shall have reviewed that certain Asset Purchase Agreement
between the Seller and Xxxxxxx Inc. ("Xxxxxxx");
(o) NDR shall have entered into a Customer Communication Services
Agreement with Seller in form and substance satisfactory to Purchaser;
(p) Purchaser shall have entered into an agreement with Axint regarding
Purchaser's payment of a maximum aggregate amount of $600,000 U.S. to Axint in
substantially the form attached hereto as Exhibit ------- 7.1(p); ------
(q) Seller shall have satisfied its indebtedness to the Bank of
Montreal and shall have discharged all Bank of Montreal security and Purchaser
shall have received evidence satisfactory to it that Seller's indebtedness to
the Bank of Montreal has been satisfied and that the Bank of Montreal security
has been discharged;
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(r) Seller shall have complied with the provisions of the Bulk Sales
Act of Ontario in connection with the sale in bulk of assets to Purchaser and
Seller shall have provided to Purchaser evidence of such compliance; and
(s) The representations and warranties of Seller and the Stockholders
contained herein shall be true and correct in all material respects.
7.2 Conditions to Obligations of Seller. The obligations of Seller under
this Agreement to consummate the transactions contemplated hereby will be
subject to satisfaction, at or prior to Closing, of all of the following
conditions, any one or more of which may be waived at the option of Seller and
the Stockholders:
(a) Purchaser shall have performed and complied with all of the
agreements required by this Agreement to be performed or complied with by
Purchaser at or prior to the Closing Date and Seller shall have received a
certificate, dated as of the Closing Date, signed by a duly authorized officer
of Purchaser to the foregoing effect;
(b) Purchaser shall have delivered to Seller or to any person or
persons specified by Seller, by wire transfer or by certified check, an amount
equal to the portion of the Purchase Price payable to Seller at Closing pursuant
to Section 3.1(a);
(c) No action or proceeding shall have been instituted or threatened
for the purpose, or with the probable or reasonably likely effect, of enjoining
or preventing the consummation of this Agreement or seeking damages on account
thereof;
(d) All necessary action (corporate or otherwise) shall have been taken
by Purchaser to authorize, approve and adopt this Agreement and the consummation
and performance of the transactions contemplated hereby, and Seller shall have
received a certificate, dated as of the Closing Date, of a duly authorized
representative of Purchaser to the foregoing effect;
(e) Seller shall received an opinion of Weil, Gotshal & Xxxxxx LLP,
counsel for Purchaser, dated as of the Closing Date, in substantially the form
attached hereto as Exhibit 7.2(e);
(f) Purchaser or NDR shall have entered into employment agreements, in
form and substance reasonably satisfactory to Purchaser, with Xxxx Xxxx and Xxxx
Xxxx and Purchaser or one of its affiliates shall have entered into consulting
agreements in form and substance reasonably satisfactory to Purchaser with Xxxx
Xxxxxxxxx and Xxxxx Xxxxxxx;
(g) Purchaser shall have delivered to Seller such good standing
certificates, officers' certificates and similar documents and certificates as
counsel for Seller shall have reasonably requested prior to the Closing Date;
(h) Seller shall have terminated its software license agreement with
Axint and Purchaser shall have entered into both a Computer Program End-User
License Agreement and a Custom Modification Agreement with Axint;
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(i) Purchaser shall have entered into certain option agreements and
subscription rights agreements with Xxxx Xxxx, Xxxx Xxxx, Xxxx Xxxxxxxxx and
Xxxxx Xxxxxxx on terms and conditions mutually agreed upon by the parties;
(j) Seller shall have been released from its debt obligations with
Axint;
(k) Purchaser shall have executed and delivered each agreement,
instrument and document required to be executed by Purchaser in connection
herewith;
(l) Seller shall have entered into an Asset Purchase Agreement with
Xxxxxxx; and
(m) Purchaser shall have entered into a Commission Agreement with
Axint, Xxxx Xxxx, Xxxx Xxxx and such other individuals as Purchaser, in its sole
discretion, may designate.
ARTICLE 8
SURVIVAL AND INDEMNIFICATION
8.1 Survival of Representations, Warranties and Covenants. (a) Except as to
the representations and warranties contained in Section 5.6, which shall survive
the Closing and shall remain in effect for a period of ten (10) years, the
representations and warranties of Seller, the Stockholders and Purchaser
contained in this Agreement shall survive the Closing until the expiration of
two (2) years from the Closing Date. Any claim for indemnification with respect
to any of such matters which is not asserted by notice given as herein provided
relating thereto within such specified period of survival may not be pursued and
is hereby irrevocably waived after such time. Any claim for an Indemnifiable
Loss (as defined in Section 8.2) asserted within such period of survival as
herein provided will be timely made for purposes hereof.
(b) Unless a specified period is expressly set forth in this Agreement
(in which event such specified period will control), the covenants in this
Agreement will survive the Closing and remain in effect indefinitely.
8.2 Certain Definitions. For purposes of this Agreement, (a) "Indemnity
Payment" means any amount of Indemnifiable Losses required to be paid pursuant
to this Agreement, (b) "Indemnitee" means the party entitled to indemnification
under this Agreement, (c) "Indemnifying Party" means the party required to
provide indemnification under this Agreement, (d) "Indemnifiable Losses" means
any and all damages, losses, liabilities, obligations, costs and expenses,
including without limitation, reasonable costs and expenses of investigation,
and any and all claims, demands or suits (by any person or entity, including
without limitation any Governmental Entity), including without limitation the
costs and expenses of any and all actions, suits, proceedings, demands,
assessments, judgments, settlements and compromises relating thereto and
including reasonable attorneys' fees and expenses in connection therewith, and
(e) "Third Party Claim" means any claim, action or proceeding made or brought by
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any person or entity who or which is not a party to this Agreement or an
affiliate of a party to this Agreement.
8.3 Indemnification.
(a) Subject to Section 8.1, Seller and the Stockholders severally, but
not jointly, agree to indemnify, defend and hold harmless Purchaser and its
directors, officers, affiliates, employees, agents and representatives from and
against any and all Indemnifiable Losses to the extent relating to, resulting
from or arising out of:
(i) any breach of any representation or warranty of Seller or any
Stockholder under the terms of this Agreement;
(ii) any breach or nonfulfillment of any agreement or covenant of
Seller or any Stockholder under the terms of this Agreement or the Related
Document; and
(iii) the use or ownership of any of the Assets prior to or on the
Closing Date.
(b) Subject to Section 8.1, Purchaser agrees to indemnify, defend and
hold harmless Seller and the Stockholders, and Seller's directors, affiliates,
partners, employees, agents or representatives thereof from and against any and
all Indemnifiable Losses to the extent relating to, resulting from or arising
out of:
(i) any breach of representation or warranty of Purchaser under the
terms of this Agreement;
(ii) any breach or nonfulfillment of any agreement or covenant of
Purchaser under the terms of this Agreement; and
(iii) the use or ownership of any of the Assets after the Closing
Date.
8.4 Defense of Claims.
(a) If any Indemnitee receives notice of assertion or commencement of
any Third Party Claim against such Indemnitee with respect to which an
Indemnifying Party is obligated to provide indemnification under Section 8.3(a)
or Section 8.3(b) of this Agreement, the Indemnitee will give such Indemnifying
Party prompt written notice thereof. Such notice will describe the Third Party
Claim in reasonable detail, will include copies of all material written evidence
thereof and will indicate the estimated amount, if reasonably practicable, of
the Indemnifiable Loss that has been or may be sustained by the Indemnitee. The
Indemnifying Party will have the right to participate in, or, by giving written
notice to the Indemnitee, to assume, the defense of any Third Party Claim at
such Indemnifying Party's own expense and by such Indemnifying Party's own
counsel (reasonably satisfactory to the Indemnitee), and the Indemnitee will
cooperate in good faith in such defense.
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(b) If, within ten calendar days after giving notice of a Third Party
Claim to an Indemnifying Party pursuant to Section 8.4(a), an Indemnitee
receives written notice from the Indemnifying Party that the Indemnifying Party
has elected to assume the defense of such Third Party Claim as provided in the
last sentence of Section 8.4(a), the Indemnifying Party will be liable to
Indemnitee only for the legal expenses reasonably incurred by the Indemnitee
prior to the receipt of such notice in addition to other Indemnifiable Losses.
The Indemnifying Party will not be liable for any legal expenses incurred by the
Indemnitee after the receipt of such written notice in connection with the
defense thereof; provided, however, that if (i) the Indemnifying Party fails to
take reasonable steps necessary to defend diligently such Third Party Claim, or
(ii) in the reasonable determination of the Indemnitee such Third Party Claim
presents a conflict of interest with respect to the Indemnifying Party, or (iii)
to the extent the Third Party Claim seeks an order, injunction, or other
equitable relief against the Indemnitee which, if successful, would materially
adversely affect the business, operations, assets or financial condition of the
Indemnitee, then within ten calendar days after receiving written notice from
the Indemnitee that the circumstances set forth in either (i), (ii) or (iii)
above exists or that the Indemnifying Party has not undertaken fully to
indemnify the Indemnitee in respect of all Indemnifiable Losses relating to the
matter, the Indemnitee may assume its own defense, and the Indemnifying Party
will be liable for all reasonable costs or expenses paid or incurred by the
Indemnitee in connection therewith. Without the prior written consent of the
other party, neither the Indemnifying Party nor the Indemnitee will enter into
any settlement of any Third Party Claim.
(c) A failure to give timely notice or to include any specified
information in any notice as provided in Sections 8.4(a) or 8.4(b) will not
affect the rights or obligations of any party hereunder except and only to the
extent that, as a result of such failure, any party which was entitled to
receive such notice was deprived of its right to recover any payment under its
applicable insurance coverage or was otherwise damaged as a result of such
failure.
(d) The Indemnifying Party will have a period of 30 calendar days
within which to respond in writing to any claim by an Indemnitee on account of
an Indemnifiable Loss which does not result from a Third Party Claim (a "Direct
Claim"). If the Indemnifying Party does not so respond within such 30 calendar
day period, the Indemnifying Party will be deemed to have rejected such claim,
in which event the Indemnifying Party will be liable to Indemnitee for the
Direct Claim, and Indemnitee will be free to pursue such remedies as may be
available to the Indemnitee on the terms and subject to the provisions of this
Article 8.
8.5 Limitation on Liability; Setoff Right. In the event that Seller or the
Stockholders are required to indemnify Purchaser for any Indemnifiable Loss
pursuant to this Article 8, the total aggregate amount that Seller and the
Stockholders shall be required to pay Purchaser shall not exceed the Purchase
Price for the Assets, as such amount shall have been adjusted in the event that
any performance targets have not been satisfied and the amount that any
Stockholder is required to pay Purchaser shall not exceed the amount arrived at
by multiplying the percentage interest of such Stockholder in Seller as set out
in Schedule 8.5 hereto by the Purchase Price, as such amount shall
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have been adjusted in the event that any performance targets have not been
satisfied. No other claims for damages, indemnity or otherwise may be asserted,
except pursuant to this Article 8 and in accordance with the provisions hereof.
In the event that Purchaser must pay Seller, or such other person(s) as Seller
shall designate, any amount pursuant to Section 3.1(c) of this Agreement and, at
the time any such payment is required to be made, Seller, or any other person(s)
designated by Seller, is required to indemnify Purchaser for any Indemnifiable
Loss pursuant to this Article 8, then Purchaser shall be entitled to setoff the
amount of any such payment owed to Seller, or to such person(s) designated by
Seller, by the amount that Seller or any such other person is required to
indemnify Purchaser as an indemnity pursuant to this Section 8.
ARTICLE 9
MISCELLANEOUS PROVISIONS
9.1 Invalid Provisions. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws, such provision
shall be modified to the minimum extent necessary to make such provision valid
and enforceable, and the remainder of this Agreement shall remain in full force
and effect and shall not be affected by the illegal, invalid or unenforceable
provision prior its modification.
9.2 Notices. Any notices required or permitted to be given under this
Agreement (and, unless otherwise expressly provided therein, under any document
delivered pursuant to this Agreement) shall be given in writing and shall be
deemed received (a) when personally delivered to the relevant party at such
party's address as set forth below, (b) if sent by mail (which must be certified
or registered mail, postage prepaid), when received or rejected by the relevant
party at such party's address indicated below, or (c) if sent by facsimile
transmission, when confirmation of delivery is received by the sending party:
Purchaser: CustomerONE Corporation
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Chief Executive Officer
Fax: (000)000-0000
With a copy to: Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
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Seller: Canadian Access Insurance Services Inc.
0000 Xxxxx Xx. Xxxx
The Mutual Group Centre
Xxxx Xxxxx, 00xx Xxxxx
Xxxxxxxxxx, Xxxxxxx X0X 0X0
Attn: Xxxx Xxxx
Fax: (000) 000-0000
With a copy to: Xxxxxxx Xxxxx & Xxxxxxxxx
Scotia Plaza, Suite 2100
00 Xxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxxxx Xxxxxxx, Esq.
Fax: (000) 000-0000
Each party may change its address for purposes of this Section 9.2 by proper
notice to the other parties.
9.3 Expenses. Except as otherwise expressly provided herein, Seller will pay
any expenses incurred by it incident to this Agreement and in preparing to
consummate and consummating the transactions provided for herein. Purchaser will
pay any expenses incurred by it incident to this Agreement and in preparing to
consummate and consummating the transactions provided for herein.
9.4 Successors and Assigns. This Agreement will be binding upon and will
inure to the benefit of the parties hereto and their respective successors and
permitted assigns, but will not be assignable or delegable by any party without
the prior written consent of the other party which shall not be unreasonably
withheld; provided, however, that (a) nothing in this Agreement is intended to
limit Purchaser's ability to sell or to transfer any or all of the Assets
following the Closing Date to any affiliate of Purchaser and provided further
that Purchaser shall be entitled to sell or to transfer all or any of the Assets
following the Closing Date to any third party upon obtaining the consent of
Seller, which consent shall not be unreasonably withheld, (b) upon notice to
Seller, Purchaser may assign or delegate any or all of its rights or obligations
under this Agreement to any affiliate thereof or to any person or entity that
acquires all or substantially all of the assets or voting stock of Purchaser,
and (c) Purchaser may make a collateral assignment of its rights under this
Agreement to any institutional lender who provides funds to Purchaser for the
acquisition of the Assets. Seller agrees to execute acknowledgements of such
assignment(s) and collateral assignments in such forms as Purchaser or
Purchaser's institutional lender(s) may from time to time reasonably request. In
the event of such a proposed assignment by Purchaser, the provisions of this
Agreement shall inure to the benefit of and be binding upon Purchaser's assigns.
In the event of any assignment by Purchaser of its obligations hereunder,
Purchaser hereby acknowledges that it shall remain liable to Seller in the event
that any assign fails to perform its obligations hereunder.
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9.5 Waiver. No failure or delay on the part of any party in exercising any
right, power or privilege hereunder or under any of the documents delivered in
connection with this Agreement shall operate as a waiver of such right, power or
privilege; nor shall any single or partial exercise of any such right, power or
privilege preclude any other or future exercise thereof or the exercise of any
other right, power or privilege.
9.6 Entire Agreement. This Agreement (including the Schedules hereto)
supersedes any other agreement, whether written or oral, that may have been made
or entered into by any party or any of their respective affiliates (or by any
director, officer or representative thereof) relating to the matters
contemplated hereby. This Agreement (together with the Exhibits and Schedules
hereto) constitutes the entire agreement by and among the parties hereto with
respect to the subject matter hereof and there are no agreements or commitments
by or among such parties or their Affiliates with respect to the subject matter
hereof except as expressly set forth herein.
9.7 Amendments and Supplements. This Agreement may be amended or
supplemented at any time by additional written agreements signed by the parties
hereto.
9.8 No Third-Party Beneficiaries. No person or entity not a party to this
Agreement shall be deemed to be a third-party beneficiary hereunder or entitled
to any rights hereunder.
9.9 Further Assurances. From time to time, as and when requested by either
party, the other party will execute and deliver, or cause to be executed and
delivered, all such documents and instruments as may be reasonably necessary to
consummate the transactions contemplated by this Agreement and the Related
Document.
9.10 Transfers. Purchaser and Seller will cooperate and take such action as
may be reasonably requested by the other in order to effect an orderly transfer
of the Assets with a minimum of disruption to the operations and employees of
the businesses of Purchaser and Seller.
9.11 Governing Law. This Agreement, including without limitation, the
interpretation, construction and validity hereof, shall be governed by the laws
of New York.
9.12 Execution in Counterparts. This Agreement may be executed in two or
more counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same agreement.
9.13 Titles and Headings. Titles and headings to sections herein are
inserted for convenience of reference only, and are not intended to be a part of
or to affect the meaning or interpretation of this Agreement.
9.14 Passage of Title and Risk of Loss. Legal title, equitable title and
risk of loss with respect to the Assets will not pass to Purchaser until such
Assets are transferred at the Closing, which transfer, once it has occurred,
will be deemed effective for tax,
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accounting and other computational purposes as of 12:01 A.M. (Toronto Time) on
the Closing Date.
9.15 Certain Interpretive Matters and Definitions.
(a) Unless the context otherwise requires, (i) all references to
Sections, Articles or Schedules are to Sections, Articles or Schedules of or to
this Agreement, (ii) each term defined in this Agreement has the meaning
assigned to it, and (iii) words in the singular include the plural and vice
versa.
(b) No provision of this Agreement will be interpreted in favor of, or
against, either of the parties hereto by reason of the extent to which either
such party or its counsel participated in the drafting thereof or by reason of
the extent to which any such provision is inconsistent with any prior draft
hereof or thereof.
9.16 No Recourse. Notwithstanding any of the terms or provisions of this
Agreement, each party agrees that neither such party nor any person acting on
such party's behalf may assert any claims or cause of action against any officer
or director of the other party or any affiliate thereof in connection with or
arising out of this Agreement or the transactions contemplated hereby.
9.17 Arbitration to Enforce Agreement.
(a) The parties specifically agree that any controversy, claim, or
dispute arising out of this Agreement or any alleged breach thereof, shall be
resolved exclusively by arbitration. Any arbitration shall take place in New
York, New York and be administered by the New York City office of the American
Arbitration Association (the "AAA") in accordance with its Commercial
Arbitration Rules in effect at the time the arbitration is initiated
(collectively, the "Rules").
(b) As soon as a demand for arbitration shall be made by either party,
the AAA shall proceed to provide a list of arbitrators from the Commercial Panel
from which the parties shall select one neutral arbitrator in accordance with
the Rules and normal procedures of the New York City office of the AAA. If
necessary, the AAA shall select the arbitrator when it is authorized to do so
under the Rules.
(c) The arbitrator shall render a full, complete, conclusive, and
binding resolution of the dispute. Each party shall bear its own attorneys' fees
in connection with the any such arbitration. The costs of the arbitration and
the arbitrator's compensation shall be borne equally among the parties. Judgment
on the arbitration award may be entered in any court having jurisdiction
thereof.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
CUSTOMERONE CORPORATION
By: /s/ XXXXXX X. XXX
--------------------------------------
Name: Xxxxxx X. Xxx
------------------------------------
Title:
-----------------------------------
CANADIAN ACCESS INSURANCE SERVICES INC.
By: /s/ XXXX X. XXXX
--------------------------------------
Name: Xxxx X. Xxxx
------------------------------------
Title:
-----------------------------------
THE STOCKHOLDERS:
/s/ XXXXX X. XXXXXX
-----------------------------------------
Xxxxx X. Xxxxxx
/s/ XXXX X. XXXX
-----------------------------------------
Xxxx X. Xxxx
/s/ XXXX X. XXXXXXXXX
-----------------------------------------
Xxxx X. Xxxxxxxxx
/s/ XXXXXXXX X. XXXXXXX
-----------------------------------------
Xxxxxxxx X. Xxxxxxx
/s/ XXXXX X. XXXXX
-----------------------------------------
Xxxxx X. Xxxxx
25
/s/ XXXXXXXX X. XXXXXXX
-----------------------------------------
Xxxxxxxx X. Xxxxxxx
/s/ XXXXXX X. XXXX
-----------------------------------------
Xxxxxx X. Xxxx
/s/ XXXXXXX X. XXXX
-----------------------------------------
Xxxxxxx X. Xxxx
26
Schedule 6.1
Employee List
1. Xxxx Xxxx
2. Xxxx Xxxx
