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STOCK PURCHASE AGREEMENT
by and among
NFO EUROPE (DEUTSCHLAND) GMBH & CO. KG
NFO WORLDWIDE, INC.
and
ALL OF THE
STOCKHOLDERS
OF
INFRATEST XXXXX AKTIENGESELLSCHAFT HOLDING
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for all of the outstanding stock of
INFRATEST XXXXX AKTIENGESELLSCHAFT HOLDING
-------------------------
As of November 10, 1998
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TABLE OF CONTENTS
PAGE
1. Sale and Purchase of Shares; Assumption of Liabilities...........1
1.1 Sale and Purchase of Shares................................1
1.2 Payment of Purchase Price..................................2
1.3 Delivery of Shares.........................................2
1.4 Transfer of Shares.........................................2
1.5 Adjustment of Purchase Price after the Closing.............2
2. Closing; Closing Date............................................6
3. Representations and Warranties of the Sellers as to the Company
and the Subsidiaries.............................................7
3.1 Due Incorporation and Authority............................7
3.2 Subsidiaries and Other Affiliates..........................7
3.3 Outstanding Capital Stock..................................8
3.4 Options or Other Rights....................................8
3.5 Charter Documents and Corporate Records....................9
3.6 Financial Statements......................................10
3.7 No Material Adverse Change................................11
3.8 Compliance with Laws......................................11
3.9 No Breach.................................................12
3.10 Claims and Proceedings....................................13
3.11 Intellectual Property; Licenses...........................13
3.12 Liabilities...............................................15
3.13 Indebtedness for Borrowed Money; Cash Position............15
3.14 Operations of the Company.................................16
3.15 Full Disclosure...........................................18
3.16 Dividends; Capital Contributions..........................18
3.17 Freelancers...............................................19
3.18 Representations and Warranties on Closing Date............19
4. Representations and Warranties of Each Seller...................19
4.1 Title to the Shares.......................................19
4.2 Authority to Execute and Perform Agreement................20
4.3 Litigation Involving Stockholders.........................21
4.4 Due Incorporation and Authority...........................21
4.5 Disposition of Assets.....................................21
4.6 Limited Guarantee.........................................22
4.7 Representations and Warranties on Closing Date............22
5. Representations and Warranties of the Buyer and NFO.............22
5.1 Funding...................................................22
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PAGE
6. Covenants and Agreements........................................22
6.1 Conduct of Business.......................................22
6.2 Corporate Examinations and Investigations.................23
6.3 Publicity.................................................24
6.4 Expenses..................................................24
6.5 Indemnification of Brokerage..............................24
6.6 Related Parties...........................................25
6.7 Termination of Agreements.................................26
6.8 Supervisory Board.........................................26
6.9 Suits Against Certain Stockholders........................26
6.10 Further Assurances........................................27
6.11 Employment Agreements.....................................27
6.12 Supervisory Board Resignations............................27
7. Conditions Precedent to the Obligation of NFO and the Buyer
to Close........................................................28
7.1 Representations and Covenants.............................28
7.2 HSR Act Filing............................................28
7.3 No Claims.................................................28
7.4 Due Diligence Investigation...............................29
7.5 Termination of Agreements.................................29
8. Conditions Precedent to the Obligation of the Sellers to Close..29
8.1 Representations and Covenants.............................29
8.2 HSR Act Filing............................................30
8.3 No Claims.................................................30
9. Non-Competition/Non-Solicitation Covenant.......................30
9.1 Non-Compete/Non-Solicitation..............................30
9.2 Rights and Remedies Upon Breach...........................31
9.3 Severability of Covenants.................................32
9.4 Blue-Pencilling...........................................32
9.5 Enforceability in Jurisdictions...........................32
10. Survival of Representations and Warranties of the Sellers After
Closing.........................................................33
11. Indemnification.................................................34
11.1 Obligation of the Sellers To Indemnify....................34
11.2 Obligation of NFO to Indemnify............................35
11.3 Notice to Indemnifying Party..............................35
11.4 Limitations on Indemnification............................38
12. Termination of Agreement........................................40
12.1 Termination...............................................40
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PAGE
13. Miscellaneous...................................................43
13.1 Certain Definitions.......................................43
13.2 Consent to Arbitration....................................47
13.3 Notices...................................................47
13.4 Entire Agreement..........................................48
13.5 Waivers and Amendments; Non-Contractual Remedies;
Preservation of Remedies..................................49
13.6 Governing Law.............................................49
13.7 Binding Effect; Assignment................................50
13.8 Usage.....................................................50
13.9 Counterparts..............................................50
13.10 Exhibits and Schedules; Cross References..................50
13.11 Headings..................................................51
13.12 Interpretation............................................51
13.13 Severability of Provisions................................51
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SCHEDULES
1.2 - Shareholders
1.3 - Share Ownership
3.2.1 - Subsidiaries
3.2.2 - Ownership Interests
3.3 - Capitalization of Subsidiaries
3.4 - Options or Other Rights
3.9.1 - Breaches and Conflicts
3.10.1 - Outstanding Orders
3.10.2 - Claims and Proceedings
3.11.1 - Intellectual Property Licenses
3.11.2 - Invalid Licenses
3.11.3 - Intellectual Property Claims
3.11.4 - Trademarks
3.12.1 - Material Liabilities
3.12.2 - Future Liabilities
3.13 - Indebtedness
3.14.1 - Incurrence of Debt
3.14.2 - Reductions in Cash
3.14.3 - Loans or Advances
3.14.4 - Sale or Disposition of Property
3.14.5 - Amendments
3.14.6 - Material Transactions
3.15 - Documents
3.16 - Dividends; Capital Contributions
6.6 - Debts to be Repaid
6.7 - Termination of Agreements
EXHIBIT A - Form of Transfer Document
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STOCK PURCHASE AGREEMENT
AGREEMENT, dated as of November 10, 1998, by and among NFO EUROPE
(DEUTSCHLAND) GMBH & CO. KG, a German limited partnership (the "Buyer"), NFO
WORLDWIDE, INC., a Delaware corporation ("NFO"), and THE HOLDERS LISTED ON
SCHEDULE 1.2 (each a "Seller" and, collectively, the "Sellers"), for the
purchase and sale of all of the issued and outstanding shares of capital stock
of INFRATEST XXXXX AKTIENGESELLSCHAFT HOLDING, a German AKTIENGESELLSCHAFT
(stock corporation) (the "Company").
The Buyer is a wholly owned indirect subsidiary of NFO. The Sellers are
the legal and beneficial owners of all of the issued and outstanding shares of
common stock, par value DM50 per share (the "Shares"), of the Company. The
Sellers wish to sell to the Buyer, and the Buyer wishes to purchase from the
Sellers, all of the Shares upon the terms and subject to the conditions of this
Agreement.
Certain terms used in this Agreement are defined in Section 13.1.
Accordingly, the parties agree as follows:
1. Sale and Purchase of Shares; Assumption of Liabilities.
1.1 Sale and Purchase of Shares. At the closing provided for
in Article 2 (the "Closing"), upon the terms and subject to the conditions of
this Agreement and in reliance upon the representations, warranties and
agreements of the Sellers, the Buyer and NFO contained herein, the Sellers shall
sell to the Buyer, and the Buyer shall
2
purchase from the Sellers, all of the Shares for an aggregate purchase price
(the "Purchase Price") equal to DM 200,000,000, to be paid in cash in accordance
with Section 1.2.
1.2 Payment of Purchase Price. The Buyer shall pay the
Purchase Price to the Sellers at the Closing by the wire transfer of immediately
available funds allocated in the amount of DM 120 million to Equita
Beteiligungen KGaA, in the amount of DM 50 million to Xx. Xxxx-Xxxxxx Xxxxx, in
the amount of DM 20 million to Dr. Hartmut Kiock and in the amount of DM 10
million to Xxxxxx Xxxxx. It is hereby agreed that the Purchase Price shall be
transferred to the account in the United States set forth on Schedule 1.2 and
that the Sellers shall bear responsibility for transferring the Purchase Price
from such account into individual accounts for each Seller. Notwithstanding the
foregoing, following the Closing the Purchase Price shall be subject to
adjustment in accordance with Section 1.5 hereof.
1.3 Delivery of Shares. At the Closing, each Seller shall
deliver to the Buyer stock certificates representing the number of Shares set
forth opposite such Seller's name on Schedule 1.3, such bearer shares
collectively constituting all of the outstanding capital stock of the Company.
1.4 Transfer of Shares. At the Closing, each of the Sellers
and the Buyer shall execute a stock transfer document in the form attached as
Exhibit A (the "Transfer Document").
1.5 Adjustment of Purchase Price after the Closing. The
Purchase Price shall be subject to adjustment after the Closing as specified in
this Section 1.5 hereof:
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(a) As promptly as practical, but in any event within
seventy-five (75) calendar days after the Closing Date, the Sellers shall cause
Xxxxxxxx, Hemmelrath & Partners GmbH (the "Sellers' Accountants") to deliver to
NFO and the Buyer (I) an audited consolidated balance sheet of the Company as of
September 30, 1998, and the related consolidated statement of income, including
the notes (ANHANG) thereto, for the business year then ended (the "1998
Financials"), together with (II) a report (such report being the "Preliminary
Closing Statement") thereon of the Sellers' Accountants (x) stating that the
1998 Financials fairly present the consolidated financial position of the
Company and the entities consolidated therein as at September 30, 1998 and the
consolidated results of operations of the Company and the entities consolidated
therein for the period covered thereby, in each case in accordance with German
GAAP applied on a basis consistent with past periods and (y) setting forth
calculations of the Net Worth of the Company and the 1998 Consolidated Entities
(as defined in Section 13.1) (computed in the manner set forth in the defined
term Net Worth) as of the close of business on September 30, 1998 and of EBITDA
of the Company and the 1998 Consolidated Entities (as defined in Section 13.1)
(computed in the manner set forth in the defined term EBITDA) for the twelve
months ended September 30, 1998. Following the Closing, the Buyer shall provide
to the Sellers and the Sellers' Accountants reasonable access during normal
business hours to the books and records of the Company and the 1998 Consolidated
Entities relevant for the preparation of the 1998 Financials and the Preliminary
Closing Statement. The procedures and methods used to prepare the
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Preliminary Closing Statement shall be those utilized in preparing the Company's
statutory audit.
(b) NFO, the Buyer and their authorized
representatives shall have the right to review the books and records and work
papers of the Sellers and the Sellers' Accountants for the purpose of verifying
the 1998 Financials and the Preliminary Closing Statement. The Buyer may dispute
any amounts reflected on the Preliminary Closing Statement in respect of either
Net Worth or EBITDA by giving the Sellers notice in writing of each disputed
item, specifying the amount thereof in dispute and setting forth, in reasonable
detail, the basis for such dispute, within sixty (60) days of the Buyer's
receipt of the Preliminary Closing Statement. In the event of such a dispute,
the Sellers' Accountants and the Buyer's accountant shall attempt to reconcile
their differences, and any resolution by them as to any disputed amounts shall
be final, binding and conclusive on the parties hereto. If the parties are
unable to resolve the dispute within sixty (60) days after receipt by the
Sellers of the Buyer's written notice of dispute, the Sellers' Accountants and
the Buyer's accountant shall submit the items remaining in dispute for
resolution to an Independent Accounting Firm, which shall, within sixty (60)
days after such submission, determine and report to the Sellers and the Buyer
upon such remaining disputed items. The fees and disbursements of the
Independent Accounting Firm shall be allocated between the Sellers, on the one
hand, and the Buyer, on the other hand, in proportion to their relative success,
as determined by the Independent Accounting Firm, in connection with the final
disposition of disputed items. The determination of the Independent Accounting
Firm shall be final and binding upon the
5
Buyer and the Sellers. The Preliminary Closing Statement shall be deemed final
for the purposes of this Section 1.5 upon (i) the sixtieth (60th) day after the
Buyer's receipt of the Preliminary Closing Statement, if the Buyer has not
notified the Sellers of a dispute prior to such time or (ii) the final
resolution of all disputes, as provided hereinabove, if the Buyer has timely
notified the Sellers of such a dispute.
(c) Upon the Preliminary Closing Statement's being
deemed final (the "Final Closing Statement") as provided in Section 1.5(b), an
adjustment to the Purchase Price shall be made as follows:
(i) if the EBITDA (the "Closing EBITDA") as
shown in the Final Closing Statement exceeds DM33,550,000, the Purchase Price
shall be increased by an amount equal to the product of the amount by which the
Closing EBITDA exceeds DM32,025,000 times 8.1;
(ii) if the Closing EBITDA is less than
DM27,450,000, the Purchase Price shall be reduced by an amount equal to the
product of the amount by which the Closing EBITDA is less than DM28,975,000
times 8.1; and
(iii) if the Net Worth as shown in the Final
Closing Statement is less than DM17,804,370, the Purchase Price shall be reduced
by an amount equal to DM17,804,370 less the Net Worth as shown in the Final
Closing Statement.
(d) Within ten (10) days after the Preliminary
Closing Statement is deemed to be final as provided above, any increase in the
Purchase Price shall be paid by the Buyer to the Sellers, and any decrease in
the Purchase Price shall be
6
paid by the Sellers to the Buyer, with any payments to the Sellers being pro
rated among them in accordance with their respective percentage ownership of the
Shares; provided, however, that if the Buyer shall have timely objected to the
Preliminary Closing Statement in accordance with Section 1.5(b), then pending
resolution of the amounts or items subject to dispute, the Buyer, on the one
hand, or the Sellers, on the other hand, as the case may be, shall, within five
(5) days after the delivery by the Buyer of its written objection, pay to the
other the amount of any Purchase Price adjustment to the extent of any amounts
which are not subject to dispute. Any Purchase Price adjustment pursuant to this
Section 1.5 shall be paid in cash in the lawful currency of the Federal Republic
of Germany by wire transfer of immediately available funds pursuant to wire
transfer instructions which shall be provided by the party or parties entitled
to receive such cash, to the other party or parties and shall bear interest from
the Closing Date through the date of payment at an annual rate equal to the
three-month Frankfurt Interbank Offered Rate, in effect at the time of such
payment, plus one percent (1.0%).
(e) Notwithstanding anything to the contrary
contained herein, in no event shall the amount of any net increase or decrease
in the Purchase Price pursuant to this Section 1.5 exceed, in the aggregate,
DM100 million.
2. Closing; Closing Date. The Closing of the sale and purchase of the
Shares contemplated hereby shall take place at the offices of Xxxx, Weiss,
Rifkind, Xxxxxxx & Xxxxxxxx, at 10:00 a.m. local time, on November 17, 1998, or
such other time or date as the parties may mutually agree in writing, provided
that all of the conditions to the Closing set forth in Articles 7 and 8 have
been satisfied or waived by the party
7
entitled to waive the same. The time and date upon which the Closing occurs is
herein called the "Closing Date."
3. Representations and Warranties of the Sellers as to the Company and
the Subsidiaries. The Sellers, jointly and severally, guarantee within the
meaning of an autonomous guarantee (EIGENSTANDIGES GARANTIEVERSPRECHEN), to NFO
and the Buyer as follows:
3.1 Due Incorporation and Authority. The Company is a
AKTIENGESELLSCHAFT (stock corporation) duly organized and incorporated, validly
existing and in good standing under the Laws of the Federal Republic of Germany
and has all requisite necessary corporate power and lawful authority to own,
lease and operate its properties and to carry on its business as now being and
heretofore conducted. The Company and each of its Subsidiaries is duly qualified
or licensed and in good standing to do business in each jurisdiction in which
the property owned, leased or operated by it or the nature of the business
conducted by it makes such qualification or licensing necessary, except where
the failure to be so duly qualified or licensed and in good standing would not,
in the aggregate, have a Material Adverse Effect.
3.2 Subsidiaries and Other Affiliates. Schedule 3.2.1 sets
forth the name and jurisdiction of organization of each corporation or other
entity (collectively, "Subsidiaries") in which the Company directly or
indirectly owns or has the power to vote shares of any capital stock or other
ownership interests having voting power to elect a majority of the directors of
such corporation, or other persons performing similar functions for such entity,
as the case may be. Each of the Subsidiaries is duly organized,
8
validly existing and in good standing under the laws of its jurisdiction of
organization and has the requisite power and lawful authority to own, lease and
operate its properties and to carry on its business as now being and heretofore
conducted. Except for the Subsidiaries and as set forth on Schedule 3.2.2,
neither the Company nor any Subsidiary owns, directly or indirectly, any
interest in any other person. Schedule 3.2.2 sets forth the percentage ownership
of the entities listed on Schedule 3.2.2 by the Company and the Subsidiaries.
3.3 Outstanding Capital Stock. The Company is authorized to
issue 2,000 shares of common stock, par value DM50 per share (the "Common
Stock"), of which all shares are bearer shares and are issued and outstanding.
All of the outstanding shares of Common Stock are owned by the Sellers, in the
respective amounts set forth on Schedule 1.3, free and clear of any Liens. Each
of the Sellers will surrender such shares pursuant to Section 1.3 and will
transfer title to such shares pursuant to Section 1.4 free and clear of any
Liens. The authorized, issued and outstanding shares of capital stock or other
ownership interests of each Subsidiary are set forth on Schedule 3.3. All issued
and outstanding capital stock or other ownership interests of each Subsidiary is
owned by the Company, or the Subsidiaries of the Company, as set forth on
Schedule 3.3, free and clear of any Lien. Except as set forth on Schedule 3.3,
all of the outstanding shares of capital stock of the Company and the
Subsidiaries are duly authorized and validly issued, fully paid and
nonassessable.
3.4 Options or Other Rights. Except as set forth on Schedule
3.4, there is no outstanding right, subscription, warrant, call, unsatisfied
preemptive right,
9
option or other agreement of any kind to purchase or otherwise to receive from
the Company, any of the Subsidiaries or any Seller any shares of the capital
stock or any other security of the Company or any of the Subsidiaries, and there
is no outstanding security of any kind of the Company or any of the Subsidiaries
convertible into capital stock.
3.5 Charter Documents and Corporate Records. The Sellers have
heretofore delivered or made available to NFO and the Buyer true and complete
certified excerpts of the HANDELSREGISTER (commercial register kept by the local
German courts) and, where applicable, corporate certificates (certified by the
respective corporation's secretary or an assistant secretary, or any other such
person competent to so certify), or comparable instruments, of the Company and
each of the Subsidiaries as in effect on the date hereof. Where applicable, the
minute books, or comparable records, of the Company and each of the Subsidiaries
heretofore have been made available to NFO and the Buyer for their inspection
and, to the knowledge of the Sellers, contain true and complete records of all
meetings and consents in lieu of meeting of the VORSTAND (management board), the
AUFSICHTSRAT (supervisory board) (and any committee thereof) and shareholders of
the Company and each of the Subsidiaries since the later of 1996 or the time of
the Company's organization or any such Subsidiary's organization, as the case
may be, and accurately reflect all transactions referred to in such minutes and
consents in lieu of meeting. Where applicable, the stock books, or comparable
records, of the Company and each of the Subsidiaries heretofore have been made
available to NFO and the Buyer for their inspection and are true and complete.
10
3.6 Financial Statements. The consolidated balance sheets of
the Company as of September 30, 1997 and September 30, 1996 and the related
consolidated statements of income for the business years then ended, including
the notes (ANHANG) thereto, certified by the Company's WIRTSCHAFTSPRUFER,
independent certified public accountants, which have been delivered to NFO or
the Buyer, fairly present the consolidated financial position of the Company and
the entities consolidated therein (the "Consolidated Entities") as at such dates
and the consolidated results of operations of the Company and the Consolidated
Entities for such respective periods, in each case in accordance with German
generally accepted accounting principles ("German GAAP") consistently applied
for the periods covered thereby. (The foregoing consolidated financial
statements of the Company as of September 30, 1997 and for the year then ended
are sometimes herein called the "Audited Financials," the consolidated balance
sheet included in the Audited Financials is sometimes herein called the "Balance
Sheet" and September 30, 1997 is sometimes herein called the "Balance Sheet
Date"). The consolidated balance sheet of the Company as of September 30, 1998
and the related consolidated statements of income for the business year then
ended, including the notes (ANHANG) thereto, certified by the Company's
WIRTSCHAFTSPRUFER, independent certified public accountants, which will be
delivered to NFO and the Buyer in accordance with Section 1.5 hereof, will
fairly present the consolidated financial position of the Company and the
entities consolidated therein as at September 30, 1998 and the consolidated
results of operations of the Company and the entities consolidated therein for
such period,
11
in each case in accordance with German GAAP consistently applied for the period
covered thereby.
3.7 No Material Adverse Change. Since the Balance Sheet Date,
there has been no Material Adverse Effect, and the Sellers do not know of any
such change which is threatened, nor has there been any damage, destruction or
loss which could have or has had a Material Adverse Effect, whether or not
covered by insurance.
3.8 Compliance with Laws. To the knowledge of the Sellers,
neither the Company nor any of the Subsidiaries is in violation of any
applicable order, judgment, injunction, award, decree or writ (collectively,
"Orders"), or any applicable law, statute, code, ordinance, regulation, Permit
or other requirement (collectively, "Laws") (including Orders or Laws that
affect the use, occupancy and operation of any real property assets of the
Company or any of the Subsidiaries), of any governmental entity, domestic or
foreign, or any non-governmental regulating body (to the extent that the rules,
regulations or orders of such body have the force of law) or any court or
arbitrator (collectively, "Governmental Bodies") and, to the knowledge of the
Sellers, none of the Company, any of the Subsidiaries or any of the Sellers has
received notice that any such violation is being or may be alleged. To the
knowledge of the Sellers, neither the Company nor any of the Subsidiaries has
made any illegal payment to officers or employees of any Governmental Body, or
made any payment to customers for the sharing of fees or to customers or
suppliers for the rebating of charges, or engaged in any other reciprocal
practice, or made any illegal payment or given any other illegal
12
consideration to purchasing agents or other representatives of customers in
respect of sales made or to be made by the Company or any of the Subsidiaries.
3.9 No Breach. The execution and delivery by the Sellers of
this Agreement, the consummation of the transactions contemplated hereby and the
compliance by the Company and the Sellers with any of the provisions hereof will
not (a) violate, conflict with or result in any breach of any provision of the
SATZUNG (articles of association) (or comparable instruments) of the Company or
any of the Subsidiaries; (b) require the Company or any of the Subsidiaries to
obtain any consent, approval, authorization or action of, or make, other than
filings required under the HSR Act, any filing with or give any notice to, any
Governmental Body or any other person; (c) to the knowledge of the Sellers and
except as set forth on Schedule 3.9.1, violate, conflict with or result in the
breach of any of the terms and conditions of, result in a material modification
of the effect of, otherwise cause the termination of or give any other
contracting party the right to terminate, or constitute (or with notice or lapse
of time or both constitute) a default under, any contract, agreement, indenture,
note, bond, loan, instrument, lease, conditional sale contract, mortgage,
license, franchise, commitment or other binding arrangement (collectively, the
"Contracts") to which the Company or any of the Subsidiaries is a party or by or
to which the Company or any of the Subsidiaries or any of their properties is or
may be bound or subject, or result in the creation of any Lien upon any of the
properties of the Company or any of the Subsidiaries pursuant to the terms of
any such Contract; (d) if the HSR Act approval is obtained, violate any Law of
any Governmental Body or any Order of any Governmental Body applicable to the
13
Company or any of the Subsidiaries or to their respective securities, properties
or business; or (e) to the knowledge of the Sellers, violate or result in the
revocation or suspension of any Permit of the Company or the Subsidiaries.
3.10 Claims and Proceedings. To the knowledge of the Sellers
and except as set forth on Schedule 3.10.1 there are no outstanding Orders of
any Governmental Body against or involving the Company or any of the
Subsidiaries. To the knowledge of the Sellers, except as set forth on Schedule
3.10.2 there are no claims, actions, proceedings or investigations
(collectively, "Claims") (whether or not the defense thereof or liabilities in
respect thereof are covered by insurance), pending or threatened, against or
involving the Company or any of the Subsidiaries or any of their properties,
owned or leased. To the knowledge of the Sellers, there is no fact, event or
circumstance that may give rise to any Orders of any Governmental Body or any
Claim that would be required to be set forth on Schedule 3.10.1 or 3.10.2 if
currently pending or threatened.
3.11 Intellectual Property; Licenses.
(a) To the knowledge of the Sellers, the Company or a
Subsidiary owns or is licensed or otherwise has the valid right to use all
Copyrights, Patents, Trade Secrets, Trademarks, Internet Assets, Mask Works,
Software and Software Guides and other proprietary rights (collectively, the
"Intellectual Property") that are used presently in connection with the
businesses of the Company and the Subsidiaries.
(b) Schedule 3.11.1 lists all material licenses,
sublicenses and other agreements ("IP Licenses") under which the Company or any
of the
14
Subsidiaries is either a licensor or licensee of any Intellectual Property and
on which a substantial portion of the business activities of the Company or the
Subsidiaries is based.
(c) The Sellers heretofore have caused the Company
and the Subsidiaries to have delivered to NFO and the Buyer true, correct and
complete copies of all material documents evidencing Intellectual Property and
IP Licenses (including all modifications, amendments and supplements).
(d) To the knowledge of the Sellers, none of the
Company, the Subsidiaries or any other party is in breach of or default under
any IP License, and each IP License is now and, except as set forth on Schedule
3.11.2, immediately following the consummation of the transactions contemplated
by this Agreement will be, valid and in full force and effect.
(e) To the knowledge of the Sellers and except as set
forth on Schedule 3.11.3, no Claim is pending or threatened that challenges the
right to use any Intellectual Property, nor do the Sellers know of any valid
grounds for any such Claim.
(f) To the knowledge of the Sellers, no third party
is infringing upon or otherwise violating the Intellectual Property rights of
the Company or any of the Subsidiaries.
(g) To the knowledge of the Sellers, the Company and
the Subsidiaries have taken all necessary action to maintain and protect each of
the Trademarks listed on Schedule 3.11.4.
15
(h) To the knowledge of the Sellers, none of the
material Trade Secrets of the Company or any of the Subsidiaries has been
disclosed to any person unless such disclosure was necessary and was made
pursuant to a confidentiality agreement.
3.12 Liabilities. To the knowledge of the Sellers, as at the
Balance Sheet Date, the Company and the Subsidiaries did not have any material
direct or indirect indebtedness, liability, Claim, loss, damage, deficiency,
obligation or responsibility, known or unknown, fixed or unfixed, xxxxxx or
inchoate, liquidated or unliquidated, secured or unsecured, accrued, absolute,
contingent or otherwise, of a kind required by German GAAP to be set forth on a
financial statement or in the notes thereto ("Liabilities") that were not fully
and adequately reflected or reserved against on the Balance Sheet or described
in the notes to the Audited Financials. To the knowledge of the Sellers and
except as set forth on Schedule 3.12.1, the Company and the Subsidiaries have
not, except in the ordinary course of business, incurred any material
Liabilities since the Balance Sheet Date. To the knowledge of the Sellers, there
is no circumstance, condition, event or arrangement that may hereafter give rise
to any Liabilities of the Company or any of the Subsidiaries or any successor to
their businesses except in the ordinary course of business or as otherwise set
forth on Schedule 3.12.2.
3.13 Indebtedness for Borrowed Money; Cash Position. Except as
set forth on Schedule 3.13, neither the Company nor any 1998 Consolidated Entity
has any Indebtedness for Borrowed Money. As of September 30, 1998, the
Indebtedness for Borrowed Money from banking institutions of the Company and the
1998 Consolidated
16
Entities was less than DM44 million. As of September 30, 1998, the Net Debt
Position of the Company and the 1998 Consolidated Entities was not more than
DM33 million. As of the date hereof, the Net Debt Position of the Company and
the 1998 Consolidated Entities is not materially different than the Net Debt
Position of such entities as of September 30, 1998.
3.14 Operations of the Company. To the knowledge of the
Sellers, since the Balance Sheet Date neither the Company nor any of the
Subsidiaries has:
(a) made any direct or indirect redemption,
retirement, purchase or other acquisition of any shares of its capital stock;
(b) except for short-term bank borrowings in the
ordinary course of business or except as set forth on Schedule 3.14.1, incurred
any Indebtedness for Borrowed Money;
(c) except as set forth on Schedule 3.14.2, reduced
its cash or short-term investments or their equivalent, other than to meet cash
needs arising in the ordinary course of business, consistent with past
practices;
(d) waived any material right under any Contract of
the type required to be set forth on any Schedule;
(e) made any change in its accounting methods or
practices or made any change in depreciation or amortization policies or rates
adopted by it;
17
(f) materially changed any of its business policies,
including advertising, investment, marketing, pricing, purchasing, production,
personnel, sales, returns, budget or product acquisition policies;
(g) except as set forth on Schedule 3.14.3, made any
loan or advance to any of its shareholders, officers, directors, employees,
consultants, agents or other representatives (other than travel advances made in
the ordinary course of business), or made any other loan or advance otherwise
than in the ordinary course of business;
(h) except for inventory or equipment in the ordinary
course of business or as set forth on Schedule 3.14.4, sold, abandoned or made
any other disposition of any of its properties or assets or made any acquisition
of all or any part of the properties, capital stock or business of any other
person;
(i) paid, directly or indirectly, any of its material
Liabilities before the same became due in accordance with its terms or otherwise
than in the ordinary course of business;
(j) terminated or failed to renew, or received any
written threat (that was not subsequently withdrawn) to terminate or fail to
renew, any Contract that is or was material to the business of the Company and
its Subsidiaries;
(k) except as set forth on Schedule 3.14.5, amended
its SATZUNG (articles of association), or comparable instruments, or merged with
or into or consolidated with any other person, subdivided or in any way
reclassified any shares of
18
its capital stock or changed or agreed to change in any manner the rights of its
outstanding capital stock or the character of its businesses; or
(l) except as set forth on Schedule 3.14.6, engaged
in any other material transaction other than in the ordinary course of business.
3.15 Full Disclosure. All information and documentation in
writing (collectively, "Documents") delivered prior to the date hereof by or on
behalf of the Sellers to NFO or the Buyer in connection with this Agreement and
the transactions contemplated hereby and listed on Schedule 3.15 are, to the
knowledge of the Sellers, true, complete and authentic. To the knowledge of the
Sellers, no representation or warranty of the Sellers contained in this
Agreement and no Document furnished by or on behalf of the Sellers prior to the
date hereof to NFO and the Buyer in connection with this Agreement or in
connection with the transactions contemplated hereby, contains an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements made, in the context in which
made, not materially false or misleading. To the knowledge of the Sellers, there
is no fact that the Sellers have not disclosed to NFO and the Buyer in writing
that materially adversely affects or, so far as any of the Sellers can now
foresee, will materially adversely effect the business, assets, properties,
prospects or condition (financial or otherwise) of the Company and its
Subsidiaries or the ability of the Sellers to perform this Agreement.
3.16 Dividends; Capital Contributions. Except as set forth on
Schedule 3.16, since the Balance Sheet Date, (x) the Company has not declared or
paid any dividends or declared or made any other distributions of any kind to
its shareholders
19
and (y) no person has made any capital contribution to the Company or any of the
Consolidated Entities; provided that any capital contribution by the Company to
one of the Consolidated Entities or by one Consolidated Entity to another
Consolidated Entity shall not constitute a breach of the representation and
warranty set forth in this Section 3.16.
3.17 Freelancers. The Sellers have no knowledge that
public-law bodies or comparable authorities categorize, as a general matter, the
free-xxxxx agreements concluded by the Company or its Subsidiaries as labor
agreements or employment agreements as defined in the applicable, labor, tax or
social contributions laws. In particular, no judicial proceedings or specific
formal investigations (other than routine investigations) in this regard are
pending or have been announced.
3.18 Representations and Warranties on Closing Date. The
representations and warranties contained in this Article 3 shall be true on and
as of the Closing Date with the same force and effect as though such
representations and warranties had been made on and as of the Closing Date,
other than such representations and warranties as are expressly made as of
another date.
4. Representations and Warranties of Each Seller. Each Seller,
severally and not jointly, guarantees within the meaning of an autonomous
guarantee (EIGENSTANDIGES GARANTIEVERSPRECHEN), to the Buyer and NFO as follows:
4.1 Title to the Shares. As of the Closing Date, such Seller
shall own legally and beneficially, free and clear of any Lien, and shall have
full power and authority to convey free and clear of any Lien, the Shares set
forth opposite such
20
Seller's name on Schedule 1.3, and, upon execution of the Transfer Document and
upon delivery of and payment for such Shares at the Closing as herein provided,
such Seller will convey to the Buyer good and valid title thereto, free and
clear of any Lien.
4.2 Authority to Execute and Perform Agreement. Such Seller
has full legal right and power and all authority and approvals required to enter
into, execute and deliver this Agreement and each and every agreement and
instrument contemplated hereby to which such Seller is or will be a party and to
perform fully such Seller's obligations hereunder and thereunder. This Agreement
has been duly executed and delivered by such Seller, and on the Closing Date,
each and every agreement and instrument contemplated hereby to which such Seller
is a party will be duly executed and delivered by such Seller and (assuming due
execution and delivery hereof and thereof by the other parties hereto and
thereto) this Agreement and each such other agreement and instrument will be the
valid and binding obligations of such Seller enforceable against such Seller in
accordance with their respective terms. The execution and delivery by such
Seller of this Agreement and each and every agreement and instrument
contemplated hereby to which such Seller is a party, the consummation of the
transactions contemplated hereby and thereby and the performance by such Seller
of this Agreement and each such other agreement and instrument in accordance
with their respective terms and conditions will not (a) if applicable, violate
any provision of the SATZUNG (articles of association) of such Seller; (b)
violate, conflict with or result in the breach of any of the terms and
conditions of, result in a material modification of the effect of, otherwise
cause the termination of or give any other contracting party the right to
terminate, or constitute
21
(or with notice or lapse of time or both constitute) a default under, any
Contract to which such Seller is a party or by or to which such Seller is or the
Shares held by such Seller are or may be bound or subject; (c) require such
Seller to obtain any consent, approval, authorization or action of, or make,
other than filings required under the HSR Act, any filing with or notice to, any
Governmental Body or any other person; (d) if the HSR Act approval is obtained,
violate any Law of any Governmental Body or any Order of any Governmental Body
applicable to such Seller or to the Shares held by such Seller; or (e) result in
the creation of any Lien on the Shares held by such Seller.
4.3 Litigation Involving Stockholders. Such Seller is not a
party to, or to its knowledge, has not been threatened with, any litigation or
judicial, administrative or arbitration proceeding which is likely to delay
materially or prevent the consummation of the transactions contemplated hereby
or have a material adverse effect upon the ability of such Seller to perform its
obligations hereunder.
4.4 Due Incorporation and Authority. Equita Beteiligungen KGaA
("Equita") represents and warrants that it is a KOMMANDITGESELLSCHAFT AUF AKTIEN
(partnership limited by shares) duly organized and incorporated and validly
existingunder the Laws of the Federal Republic of Germany, and has all requisite
corporate power and authority to enter into and to perform under this Agreement.
4.5 Disposition of Assets. Such Seller is not, by entering
into and performing under this Agreement, disposing of all or materially all of
its, his or her assets.
22
4.6 Limited Guarantee. The Sellers do not make any
representations, warranties or guarantees other than those expressly provided in
this Agreement.
4.7 Representations and Warranties on Closing Date. The
representations and warranties contained in this Article 4 shall be true on and
as of the Closing Date with the same force and effect as though such
representations and warranties had been made on and as of the Closing Date,
other than such representations and warranties as are expressly made as of
another date.
5. Representations and Warranties of the Buyer and NFO. Each of NFO and
the Buyer, jointly and severally, guarantee within the meaning of an autonomous
guarantee (EIGENSTANDIGES GARANTIEVERSPRECHEN), to the Sellers as follows:
5.1 Funding. NFO and the Buyer shall have sufficient funds
available either from internal sources or from loan facilities to pay the
Purchase Price at the Closing as well as any future Purchase Price adjustments.
6. Covenants and Agreements.
6.1 Conduct of Business. From the date hereof through the
Closing Date, the Sellers agree that they shall cause the Company and the
Subsidiaries to conduct their businesses in the ordinary course and, without
prior consultation with NFO and the Buyer, not to undertake any of the actions
specified in Section 3.14. The Sellers shall give NFO and the Buyer prompt
notice of any event, condition or circumstance occurring from the date hereof
through the Closing Date that would constitute a violation
23
or breach of (i) any representation or warranty, whether made as of the date
hereof or as of the Closing Date, or (ii) any covenant contained in this
Agreement.
6.2 Corporate Examinations and Investigations. Prior to the
Closing Date, NFO and the Buyer shall be entitled, through their employees and
representatives, including Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, Xxxxxx Xxxx
Hootz Xxxxxx Rechtsanwalte and Xxxxxx Xxxxxxxx GmbH (collectively, the
"Representatives"), to make investigation of the properties, businesses and
operations of the Company and the Subsidiaries, and examination of the books,
records and financial condition of the Company and the Subsidiaries at
reasonable times, under reasonable circumstances and to a reasonable extent,
with the details of such due diligence investigation to be agreed on between the
Sellers and NFO. No investigation by NFO and the Buyer shall diminish or obviate
any of the representations, warranties, covenants or agreements of the Sellers
contained in this Agreement. If this Agreement terminates, (a) NFO and the Buyer
shall keep confidential and shall not use in any manner any information or
documents obtained from the Company or the Subsidiaries concerning their
properties, businesses and operations, unless (i) use or disclosure of such
information or documents shall be required by applicable Law or Order of any
Governmental Body, (ii) use or disclosure of such information or documents is
reasonably required in connection with any Claim against or involving NFO or the
Buyer or (iii) such information or documents are readily ascertainable from
public or published information or trade sources (other than information known
generally to the public as a result of a violation of this Section 6.2) or are
already known or subsequently developed by NFO or the Buyer independently of any
24
investigation of the Company or the Subsidiaries; and (b) any documents obtained
from the Company or the Subsidiaries and all copies thereof shall be returned.
6.3 Publicity. So long as this Agreement is in effect, the
parties agree that they shall not, and shall cause their affiliates not to,
issue or cause the publication of any press release or any other announcement
with respect to this Agreement or the transactions contemplated hereby without
the consent of the other party; provided, however, that NFO may make any
announcement required by applicable law or regulation with, if reasonably
practicable, prior written notice to, and consultation with, the Sellers.
6.4 Expenses. The parties to this Agreement shall, except as
otherwise specifically provided herein, bear their respective expenses incurred
in connection with the preparation, execution and performance of this Agreement
and the transactions contemplated hereby, including all fees and expenses of
agents, representatives, counsel and accountants.
6.5 Indemnification of Brokerage. The Sellers, jointly and
severally, represent and warrant to NFO and the Buyer that no broker, finder,
agent or similar intermediary (a "Broker") is entitled to receive any brokerage
or finder's or financial advisor's fee from the Company or any of the
Subsidiaries in conjunction with the transactions contemplated by this
Agreement. The Sellers agree, jointly and severally, to indemnify and hold
harmless NFO, the Buyer, the Company and the Subsidiaries from any Claim or
demand for commission or other compensation by any Broker claiming to have been
employed by or on behalf of the Company, any of the
25
Subsidiaries or any of the Sellers, and to bear the cost of legal expenses
incurred in defending against any such claim. Each of NFO and the Buyer
represents and warrants to the Sellers that no Broker other than Xxxxxxx Xxxxx &
Company has acted on behalf of NFO or the Buyer in connection with this
Agreement or the transactions contemplated hereby, and that, other than to
Xxxxxxx Xxxxx & Company, there are no brokerage commissions, finders' fees or
similar fees or commissions payable in connection therewith based on any
agreement, arrangement or understanding with NFO or the Buyer, or any action
taken by NFO or the Buyer. Each of NFO and the Buyer agrees to indemnify and
hold harmless the Company, the Subsidiaries and the Sellers from any Claim or
demand for commission or other compensation by any Broker (including, without
limitation, Xxxxxxx Xxxxx & Company) claiming to have been employed by or on
behalf of NFO or the Buyer, and to bear the cost of legal expenses incurred in
defending against any such claim.
6.6 Related Parties. The Sellers shall, prior to the Closing,
(a) pay or cause to be paid to the Company or each of the Subsidiaries, as the
case may be, all amounts owed to the Company or such Subsidiary by any of the
Sellers or any affiliate of any of the Sellers and (b) cause the Company and
each of the Subsidiaries to pay back to the Sellers or to any affiliate of the
Sellers the debts set forth on Schedule 6.6. At and as of the Closing, any debts
of the Company or any of the Subsidiaries owed to any of the Sellers or to any
affiliate of any of the Sellers shall be canceled, except those debts owed to
any Seller in respect of his or her employment with the Company or any of the
Subsidiaries and incurred in the ordinary course of business.
26
6.7 Termination of Agreements. The Sellers shall, prior to the
Closing, terminate or cause to be terminated all Contracts between the Company
or a Subsidiary, on the one hand, and a Seller or any affiliate of a Seller, on
the other hand, except for such contracts set forth on Schedule 6.7, and the
Company or such Subsidiary, as the case may be, shall retain no obligations
under such terminated Contracts.
6.8 Supervisory Board. To the extent not already paid prior to
the Closing, following the Closing, NFO shall cause the Company to pay each
member of the Company's supervisory board compensation for the fiscal year ended
September 30, 1998 in an amount equal to his or her compensation for the fiscal
year ended September 30, 1997, which amounts were DM20,000 for the chairman,
DM15,000 for the deputy chairman and DM10,000 for each of the supervisory
board's other four members.
6.9 Suits Against Certain Stockholders. Equita and Xx. Xxxx-
Xxxxxx Xxxxx hereby covenant and agree that neither of them will xxx, or file or
institute any claim, action or proceeding against or involving, Dr. Hartmut
Kiock or Xxxxxx Xxxxx, or both, arising out of this Agreement or the operation
of the Company or any of the Subsidiaries, other than suits, claims, actions or
proceedings to obtain Dr. Kiock's and Xx. Xxxxx'x proportionate share of any
indemnification obligations pursuant to Article 11 of this Agreement.
Notwithstanding the foregoing, nothing contained herein shall preclude Equita or
Xx. Xxxxx from suing Dr. Kiock or Xx. Xxxxx, or both, to the extent that prior
to the Closing Date Dr. Kiock or Xx. Xxxxx, or both, willingly and fraudulently
concealed information from Xx. Xxxxx and/or Equita that was necessary to
27
make the representations or warranties of the Sellers in this Agreement not
materially false or misleading.
6.10 Further Assurances. Each of the parties shall execute
such documents and take such further actions as may be reasonably required or
desirable to carry out the provisions of this Agreement and the transactions
contemplated hereby, including, without limitation, the Sellers using their
reasonable best efforts to promptly provide to NFO and the Buyer all information
required in connection with appropriate filings and submissions with the
BUNDESKARTELLAMT (Federal Cartel Office).
6.11 Employment Agreements. Each of Dr. Hartmut Kiock and
Xxxxxx Xxxxx hereby covenant and agree that they will terminate their existing
employment agreements with the Company and enter into new employment agreements
with the Company upon the consummation of the acquisition of the Company by the
Buyer. The terms of such employment agreements will be substantially consistent
with the terms of the draft agreements previously reviewed by NFO, on the one
hand, and by Dr. Hartmut Kiock and Xxxxxx Xxxxx, on the other hand.
6.12 Supervisory Board Resignations. The Sellers shall cause
the members of the Company's supervisory board (AUFSICHTSRATSMITGLIEDER) to
resign therefrom or shall withdraw such members therefrom, in either case at or
prior to the Closing. The Sellers shall indemnify the Company from and against
any claims or causes of action by such former supervisory board members except
in respect of any claims for the payments to be made pursuant to Section 6.8
hereof.
28
7. Conditions Precedent to the Obligation of NFO and the Buyer to
Close. The obligation of NFO and the Buyer to enter into and complete the
Closing is subject, at the option of NFO and the Buyer acting in accordance with
the provisions of Article 12 with respect to termination of this Agreement, to
the fulfillment on or prior to the Closing Date of the following conditions, any
one or more of which may be waived by NFO and the Buyer:
7.1 Representations and Covenants. The representations and
warranties of the Sellers contained in this Agreement shall be true on and as of
the Closing Date with the same force and effect as though made on and as of the
Closing Date. Each of the Sellers shall have performed and complied with all
covenants and agreements required by this Agreement to be performed or complied
with by such Seller on or prior to the Closing Date. Each Seller shall have
delivered to NFO and the Buyer a certificate, dated the date of the Closing and
signed by such Seller, to the foregoing effect.
7.2 HSR Act Filing. Any person required in connection with the
transactions contemplated by this Agreement to file a notification and report
form in compliance with the HSR Act shall have filed such form and the
applicable waiting period with respect to each such form (including any
extension thereof by reason of a request for additional information) shall have
expired or been terminated.
7.3 No Claims. No Claims shall be pending or, to the knowledge
of NFO, the Buyer, the Company, any of the Subsidiaries or any of the Sellers,
threatened, before any Governmental Body (including investigations instituted by
29
the United States Department of Justice or the Federal Trade Commission in
connection with antitrust regulations) to restrain or prohibit, or to obtain
damages or a discovery order in respect of, this Agreement or the consummation
of the transactions contemplated hereby or which has had or may have, in the
reasonable judgment of NFO or the Buyer, a Material Adverse Effect.
7.4 Due Diligence Investigation. The results of the due
diligence investigation conducted in accordance with Section 6.2 above shall be
satisfactory to NFO and the Buyer in their sole discretion.
7.5 Termination of Agreements. The Buyer shall have received
evidence satisfactory to it of the termination of all Contracts required to be
terminated pursuant to Section 6.7 and of the release of any obligations under
such Contracts of the Company or any of the Subsidiaries.
8. Conditions Precedent to the Obligation of the Sellers to Close. The
obligation of the Sellers to enter into and complete the Closing is subject, at
the option of the Sellers acting in accordance with the provisions of Article 12
with respect to termination of this Agreement, to the fulfillment on or prior to
the Closing Date of the following conditions, any one or more of which may be
waived by the Sellers:
8.1 Representations and Covenants. The representations and
warranties of NFO and the Buyer contained in this Agreement shall be true on and
as of the Closing Date with the same force and effect as though made on and as
of the Closing Date. Each of NFO and the Buyer shall have performed and complied
with all covenants and agreements required by this Agreement to be performed or
complied with by it on or
30
prior to the Closing Date. NFO and the Buyer shall have delivered to the Sellers
a certificate, dated the date of the Closing and signed by an officer of NFO and
the Buyer, to the foregoing effect.
8.2 HSR Act Filing. Any person required in connection with the
transactions contemplated by this Agreement to file a notification and report
form in compliance with the HSR Act shall have filed such form and the
applicable waiting period with respect to each such form (including any
extension thereof by reason of a request for additional information) shall have
expired or been terminated.
8.3 No Claims. No Claims shall be pending or, to the knowledge
of NFO, the Buyer, the Company, any of the Subsidiaries or any of the Sellers,
threatened, before any Governmental Body (including investigations instituted by
the United States Department of Justice or the Federal Trade Commission in
connection with antitrust regulations) to restrain or prohibit, or to obtain
damages or a discovery order in respect of, this Agreement or the consummation
of the transactions contemplated hereby.
9. Non-Competition/Non-Solicitation Covenant.
9.1 Non-Compete/Non-Solicitation. Following the Closing, for a
period of four years following the Closing Date, each such Seller shall not,
directly or indirectly, in any geographical area or in any foreign country in
which the Company or any of the Subsidiaries engages in business on the Closing
Date (which areas and countries include, without limitation, the Federal
Republic of Germany, the European Union, the United States of America and
Canada), in any form or manner:
31
(a) own, manage, control, participate in, consult
with, render services for, or in any manner engage in any business competing
with the market research businesses of NFO and the Buyer and the businesses of
the Company or their respective Subsidiaries as such businesses exist or are in
process on the Closing Date; provided, however, that each such Seller may be a
passive owner of not more than 5% of the outstanding stock of any class of a
corporation which is publicly traded, so long as such Seller has no active
participation in the business of such corporation; or
(b) (i) induce or attempt to induce any employee of
NFO, the Buyer, the Company or any of their respective subsidiaries to leave the
employ thereof or (ii) induce or attempt to induce any customer, supplier,
licensee or other business relation of NFO, the Buyer, the Company or any of
their respective Subsidiaries to cease doing business with NFO, the Buyer, the
Company or any such Subsidiary, or in any way interfere with the relationship
between any such customer, supplier, licensee or business relation and NFO, the
Buyer, the Company or any of their respective Subsidiaries.
9.2 Rights and Remedies Upon Breach. If a Seller breaches, or
threatens to commit a breach of, any of the provisions of Section 9.1(a) (the
"Restrictive Covenants"), NFO and the Buyer shall have the following rights and
remedies, each of which rights and remedies shall be independent of the other
and severally enforceable, and all of which rights and remedies shall be in
addition to, and not in lieu of, any other rights and remedies available to NFO
and the Buyer under law or in equity:
32
(a) Specific Performance. The right and remedy to
have the Restrictive Covenants specifically enforced by any court having equity
jurisdiction, it being acknowledged and agreed that any such breach or
threatened breach will cause irreparable injury to NFO and the Buyer and that
money damages will not provide adequate remedy to NFO or the Buyer; and
(b) Accounting. The right and remedy to require a
Seller to account for and pay over to NFO or the Buyer all compensation,
profits, monies, accruals, increments or other benefits derived or received by
such Seller as the result of any transactions constituting a breach of any of
the Restrictive Covenants, and such Seller shall account for and pay over such
benefits to NFO or the Buyer.
9.3 Severability of Covenants. If any court determines that
any of the Restrictive Covenants, or any part thereof, is invalid or
unenforceable, the remainder of the Restrictive Covenants shall not thereby be
affected and shall be given full effect, without regard to the invalid portions.
9.4 Blue-Pencilling. If any court determines that any of the
Restrictive Covenants, or any part thereof, is unenforceable because of the
duration of such provision or the area covered thereby, such court shall have
the power to reduce the duration or area of such provision and, in its reduced
form, such provision shall then be enforceable and shall be enforced.
9.5 Enforceability in Jurisdictions. The parties intend to and
hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts
of any jurisdiction within the geographical scope of such covenants. If the
courts of any one or
33
more of such jurisdictions hold the Restrictive Covenants wholly unenforceable
by reason of the breadth of such scope or otherwise, it is the intention of the
parties that such determination not bar or in any way affect NFO's or the
Buyer's right to the relief provided above in the courts of any other
jurisdiction within the geographical scope of such covenants, as to breaches of
such covenants in such other respective jurisdictions, such covenants as they
relate to each jurisdiction being, for this purpose, severable into diverse and
independent covenants.
10. Survival of Representations and Warranties of the Sellers After
Closing. Notwithstanding any right of NFO and the Buyer to investigate fully the
affairs of the Company and the Subsidiaries and any right of the Sellers to
investigate fully the affairs of NFO and notwithstanding any knowledge of facts
determined or determinable by NFO, the Buyer or the Sellers pursuant to such
investigation or right of investigation, NFO, the Buyer and the Sellers have the
right to rely fully upon the representations, warranties, covenants and
agreements contained in this Agreement or in any Documents delivered pursuant to
this Agreement. All such representations, warranties, covenants and agreements
shall survive the execution and delivery of this Agreement and the Closing
hereunder. Except for those representations and warranties in Sections 3.3, 3.4,
4.1 and 4.2 (all of which representations and warranties shall terminate and
expire ten years after the Closing Date), all representations and warranties
(but not covenants or indemnification obligations pursuant to Section 11)
contained in this Agreement shall terminate and expire on February 10, 2001. The
indemnification obligations pursuant to
34
Sections 11.1(y) and (z) shall terminate and expire 90 days after the expiration
of the relevant statute of limitations.
11. Indemnification.
11.1 Obligation of the Sellers To Indemnify. Subject to the
limitations contained in Article 10 and Section 11.4, from and after the Closing
Date the Sellers shall be jointly and severally liable to, and shall indemnify,
defend and hold harmless the Buyer, NFO and the Company (and any of their
directors, officers, partners, employees, agents and affiliates) (each, an "NFO
Indemnified Party") from and against all claims, losses, liabilities, damages,
deficiencies, costs or expenses (including interest, penalties and reasonable
fees of attorneys and disbursements (collectively, "Losses") (which, for the
purposes hereof, shall also include the reasonable fees of attorneys and
disbursements incurred by an NFO Indemnified Party in bringing a claim under
this Agreement, prosecuting its rights of indemnity in respect of such claim and
collecting any amounts awarded upon such claim) suffered, sustained or incurred
or required to be paid by any such person due to, based upon, arising out of or
otherwise in respect of (x) any inaccuracy in or any breach of any
representation, warranty, covenant or agreement of the Sellers contained in this
Agreement or any certificate required to be delivered in connection therewith,
(y) 50% of any Loss resulting from the disallowance of the allocation of step up
from the acquisition costs of Infratest Xxxxx XX Holding in 1995 for trade tax
purposes for the period ending on the Closing Date, and (z) 50% of any Loss
(income tax, trade tax or otherwise) resulting from the transfer of
participations in non-German entities to Infratest Xxxxx International GmbH
Holding in fiscal year 1995/96;
35
provided, however, that the Sellers shall not be liable for indemnification
pursuant to clause (x) of this Section 11.1 in respect of any individual Loss
that is less than DM25,000.
11.2 Obligation of NFO to Indemnify. Subject to the
limitations contained in Article 10 and Section 11.4, from and after the Closing
Date the Buyer and NFO shall be jointly and severally liable to, and shall,
indemnify, defend and hold harmless each Seller (each, a "Seller Indemnified
Party") from and against all Losses (which, for the purposes hereof, shall also
include the reasonable fees of attorneys anddisbursements incurred by a Seller
Indemnified Party in bringing a claim under this Agreement, prosecuting its
rights of indemnity in respect of such claim and collecting any amounts awarded
upon such claim) suffered, sustained or incurred or required to be paid by any
such person due to, based upon, arising out of or otherwise in respect of any
inaccuracy in or breach of any representation, warranty, covenant or agreement
of the Buyer or NFO contained in this Agreement or any certificate required to
be delivered by NFO pursuant thereto.
11.3 Notice to Indemnifying Party.
(a) If either an NFO Indemnified Party, on the one
hand, or any Seller Indemnified Party, on the other hand, as the case may be
(the "Indemnitee"), receives written notice of any third party claim or
potential claim or the commencement of any action or proceeding which could give
rise to an obligation on the part of any Seller, on the one hand, or the Buyer
or NFO, on the other hand, as the case may be, to provide indemnification (the
"Indemnifying Party") pursuant to Section 11.1
36
or 11.2, the Indemnitee shall promptly give the Indemnifying Party notice
thereof (the "Indemnification Notice"); provided, that the failure to give the
Indemnification Notice promptly shall not impair the Indemnitee's right to
indemnification in respect of such claim, action or proceeding unless, and only
to the extent that the lack of prompt notice adversely affects the ability of
the Indemnifying Party to defend against or diminish the Losses arising out of
such claim, action or proceeding. Delivery of the Indemnification Notice shall
be a condition precedent to any liability of the Indemnifying Party under the
provisions for indemnification contained in this Agreement. The Indemnification
Notice shall contain factual information (to the extent known to the Indemnitee)
describing the asserted claim in reasonable detail and shall include copies of
any notice or other document received form any third party in respect of any
such asserted claim. The Indemnifying Party shall have the right to assume the
defense of a third party claim or suit described in this Section 11.3 at its own
cost and expense and with counsel of its own choosing; provided, however, that
the Indemnifying Party acknowledges in writing (at the time it elects to assume
the defense of such claim or suit, which shall be not later than 30 days after
the date of the Indemnification Notice) its obligation under this Section 11.3
to indemnify the Indemnitee with respect to such claim or suit; such counsel is
reasonably satisfactory to the Indemnitee; the Indemnitee is kept fully informed
of all developments and is furnished copies of all papers; the Indemnitee is
given the opportunity, at its option, to participate at its own cost and expense
and with counsel of its own choosing (which shall be reasonably satisfactory to
the Indemnifying Party) in the defense of such claim or suit; and the
Indemnifying Party diligently prosecutes the defense of such claim
37
or suit. In the event that all of the conditions of the foregoing provision are
not satisfied, the Indemnitee shall have the right, without impairing any of its
rights to indemnification as provided herein, to assume and control the defense
of such claim or suit and to settle such claim or suit. No settlement of any
such third party claim or suit shall be made by the Indemnifying Party without
the prior written consent of the Indemnitee (which shall not be unreasonably
withheld). No settlement of any such third party claim or suit shall be made by
the Indemnitee if the Indemnifying Party shall have assumed the defense thereof
and shall be in compliance with its obligations with respect thereto as set
forth above in this Section 11.3. If the Indemnifying Party chooses to defend
any claim, the Indemnitee shall make available to the Indemnifying Party, any
books, records or other documents within its control that are necessary or
appropriate for such defense. Notwithstanding the foregoing, the Indemnitee
shall have the right to employ separate counsel at the Indemnifying Party's
expense and to control its own defense of such asserted liability if in the
reasonable opinion of counsel to such Indemnitee (i) there are or may be legal
defenses available to such Indemnitee or to other Indemnitees that are different
from or additional to those available to the Indemnifying Party, or (ii) a
conflict or potential conflict exists between the Indemnifying Party and such
Indemnitee that would make such separate representation advisable.
(b) If any NFO Indemnified Party or any Seller
Indemnified Party, as the case may be, has a claim (or potential claim) in
respect of any Loss based upon, arising out of or otherwise in respect of a
breach of any representation, warranty, covenant or agreement contained herein
or in any certificate required to be
38
delivered in connection herewith which does not relate to a claim, suit or
proceeding by a third party, then such NFO Indemnified Party or Seller
Indemnified Party, as the case may be, shall send to the Sellers or the Buyer,
respectively, a written notice describing the facts or circumstances with
respect to the subject matter of such claim (or potential claim). Any such
notice must be received by the Sellers or the Buyer, as the case may be, on or
prior to the date on which the representation or warranty on which such claim
(or potential claim) or action or proceeding is based ceases to survive as set
forth in Article 10, irrespective of whether the subject matter of such claim
(or potential claim), action or proceeding shall have occurred before or will
occur after such date.
11.4 Limitations on Indemnification. Anything in Section 11.1
to the contrary notwithstanding, no indemnification payment shall be made
pursuant to Section 11.1 except to the extent that the amounts that would
otherwise be payable under Section 11.1 taken together would aggregate at least
DM2,400,000 (the "Minimum Amount"); provided, however, that the foregoing
exception shall not apply to indemnification in respect of any breach of the
representations and warranties contained in Sections 3.13, 3.16 or Article 4 or
any indemnification pursuant to clauses (y) or (z) of Section 11.1.
Notwithstanding anything to the contrary contained herein, any Loss in respect
of indemnification pursuant to clause (x) of Section 11.1 that is less than
DM25,000 shall not be counted when determining whether the Minimum Amount has
been reached; provided, however, that the full amount of any Loss in respect of
indemnification pursuant to clause (x) of Section 11.1 that equals or exceeds
DM25,000 shall be counted when determining whether the Minimum Amount has been
reached.
39
After the Minimum Amount has been met all amounts payable under Section 11.1
(including the Minimum Amount) shall be payable by the Sellers until the amounts
paid by the Sellers shall equal DM100 million (the "Maximum Amount"); provided,
however, that the Maximum Amount shall be increased by 50% of the amount of any
Purchase Price adjustment paid to the Sellers pursuant to Section 1.5 of this
Agreement. For purposes of this Article 11, the amount of any Loss and the
amount of any indemnification payment to be made by any party shall be
determined (i) without deducting therefrom any Tax benefit obtained following
the date hereof by reason of the deductibility for Tax purposes of any damage,
loss or payment giving rise to any such Loss or indemnification payment, (ii)
without including therein an increase or "gross-up" for any Tax liability that
may be incurred following the date hereof by reasons of the inclusion in income
of, or by reason of a reduction in tax basis as a result of, any indemnification
payment received hereunder, but (iii) in case an Indemnifying Party is liable to
indemnify an NFO Indemnified Party from Tax liabilities for periods prior to the
Closing Date, by deducting therefrom any Tax benefits (but net of interest and
penalties) obtained by the NFO Indemnified Party for periods following the
Closing Date which result from the same event, circumstance or state of facts
causing such Tax payment; provided, however, that in case such Tax benefit will
be obtained later than the indemnification payment has to be made, the
Indemnified Party will be reimbursed by the NFO Indemnified Party only at the
time the benefit actually accrues to the NFO Indemnified Party.
40
In addition, for purposes of this Article 11, the amount of any Loss
and the amount of any indemnification payment to be made by any party shall be
determined by deducting therefrom (i) any insurance payment received after the
date hereof which results from the event, circumstance or state of facts causing
the Loss and (ii) any indemnification payment received from a third party which
results from the event, circumstance or state of facts causing the Loss;
provided, however, that in each case such deductions from indemnification
payments in respect of insurance payments and third party indemnification
payments shall only be made (x) to the extent such insurance or indemnification
payments have actually been obtained and (y) with respect to payments the
insured or indemnified party obtains in the future, only when such benefits are
actually received by the insured or indemnified party shall they be reimbursed
to the indemnifying party.
Notwithstanding anything to the contrary contained herein, no
Indemnitee shall be entitled to recover any amount in excess of any Loss that it
actually suffers, regardless of whether one or multiple guarantees have been
breached.
12. Termination of Agreement.
12.1 Termination. This Agreement may be terminated prior to
the Closing as follows:
(a) at the election of the Sellers if any one or more
of the conditions to the obligation of the Sellers to close set forth in Article
8 has not been fulfilled as of the scheduled Closing Date;
41
(b) at the election of the Buyer or NFO, if any one
or more of the conditions to the obligation of the Buyer and NFO to close set
forth in Article 7 has not been fulfilled as of the scheduled Closing Date;
(c) at the election of the Sellers, the Buyer or NFO,
if any legal proceeding is commenced or threatened by any Governmental Body
seeking to prevent the consummation of the Closing and the Sellers, the Buyer or
NFO, as the case may be, reasonably and in good xxxxx xxxxx it impracticable or
inadvisable to proceed in view of such legal proceeding;
(d) at the election of the Sellers if the Buyer or
NFO has breached any material representation, warranty, covenant or agreement
contained in this Agreement, which breach cannot be or is not cured by the
Closing Date;
(e) at the election of the Buyer or NFO, if any of
the Sellers has breached any representation, warranty, covenant or agreement
contained in this Agreement, which breach cannot be or is not cured by the
Closing Date;
(f) at any time on or prior to the Closing Date, by
mutual written consent of the Sellers, the Buyer and NFO; or
(g) notwithstanding anything to the contrary
contained herein, unless the parties hereto otherwise agree in writing, this
Agreement shall terminate automatically at the close of business on November 17,
1998 if the Buyer has not paid the Purchase Price to the Sellers by such time
for any reason or no reason at all.
42
If this Agreement so terminates, it shall become null and void and have
no further force or effect, except as provided in Section 12.2.
12.2 Survival After Termination. If this Agreement terminates
pursuant to Section 12.1(a) - (f) and the transactions contemplated hereby are
not consummated, this Agreement shall become null and void and have no further
force or effect, except that any such termination shall be without prejudice to
the rights of any party on account of the nonsatisfaction of the conditions set
forth in Articles 7 and 8 resulting from the intentional or willful breach or
violation of the representations, warranties, covenants or agreements of another
party under this Agreement. If Buyer does not pay the Purchase Price and this
Agreement terminates pursuant to Section 12.1(g) and the transactions
contemplated hereby are not consummated, this Agreement shall become null and
void and have no further force or effect and no party hereto shall have any
liability to any other party hereunder for the failure to consummate the
transaction as contemplated by this Agreement. Notwithstanding anything in this
Agreement to the contrary, (i) the provisions of Section 6.2 relating to the
obligation of the Buyer and NFO to keep confidential and not to use certain
information and data obtained by it from the Company or the Subsidiaries, as the
case may be, and to return documents to the Company or the Subsidiaries, as the
case may be, and (ii) the provisions of Sections 6.3, 6.4 and 6.5, this Section
12.2 and Article 13 shall survive any termination of this Agreement.
43
13. Miscellaneous.
13.1 Certain Definitions. As used in this Agreement, the
following terms have the following meanings:
"1998 Consolidated Entities" shall mean the Company and such entities
to be consolidated as of September 30, 1998 in accordance with German GAAP
applied on a consistent basis with past practice.
"affiliate" means, with respect to any person, any other person
controlling, controlled by or under common control with, or the parents, spouse,
lineal descendants or beneficiaries of, such person.
"Copyrights" means any foreign or United States copyright registrations
and applications for registration thereof, and any non-registered copyrights.
"DM" means Deutsche Xxxx, the lawful currency of the Federal Republic
of Germany.
"EBITDA" shall mean, with respect to the Company and the 1998
Consolidated Entities (Konzern-Jahresuberschub), on a consolidated basis, the
net income of such entities, before provision for income taxes and income tax
payments (Steuem vom Einkommen und vom Ertrag), plus interest expense,
depreciation expense, amortization expense and minority interest expense
(Konzernfremden Zustehender Anteile am Jahresergebnis), determined in accordance
with German GAAP applied on a basis consistent with past periods.
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Act of 1976, as
amended, and the rules and regulations promulgated thereunder.
"Indebtedness for Borrowed Money" means all obligations for borrowed
money (including accrued but unpaid interest) including, without limitation,
reimbursement and all other obligations with respect to surety bonds, letters of
credit and bankers' acceptances, whether or not matured.
"Independent Accounting Firm" shall mean PricewaterhouseCoopers, or, if
such firm shall decline to act or is not, at the time of any submission of
disputed items to such firm under Section 1.5(b), independent of each of the
Sellers, NFO and the Buyer, an independent public accounting firm mutually
agreed to by the Buyer and the Sellers; provided, however, that if the Buyer and
the Sellers cannot mutually agree on the identity of the Independent Accounting
Firm within ten (10) days after PricewaterhouseCoopers has declined to act or
been deemed not to be independent, the Buyer, on the one hand,
44
and the Sellers, on the other hand, shall each submit the name of a "big five"
accounting firm that does not at the time and has not in the prior two years
provided services to the Buyer, NFO, any Seller or any of their respective
affiliates, and the Independent Accounting Firm shall be selected by lot.
"Internet Assets" means any internet domain names and other computer
user identifiers and any rights in and to sites on the world wide web including
rights in and to any text, graphics, audio and video files, and html or other
code incorporated in such sites.
"knowledge" with respect to any Seller, means the knowledge of such
Seller or any of its officers and directors, as the case may be, provided that
each Seller shall be deemed to have, in addition to its, his or her own
knowledge, the cumulative knowledge of each of the other Sellers; and "knows"
has a correlative meaning. It is further agreed that the Sellers will not be
imputed to have any additional knowledge solely as a result of receiving a copy
of the written Xxxxxx Xxxxxxxx due diligence reports prepared for the benefit of
NFO Worldwide, Inc.; provided, for purposes of clarification, that, facts known
to the Sellers independent of such written reports shall constitute the
knowledge of the Sellers for purposes of this Agreement.
"Lien" means any lien, pledge, mortgage, deed of trust, security
interest, claim, lease, license, charge, option, right of first refusal,
easement, servitude, transfer restriction, encumbrance or any other restriction
or limitation whatsoever.
"Mask Works" means any mask works and registrations and applications
for registration thereof.
"Material Adverse Effect" means a material adverse affect on the
business, assets, properties, prospects, condition (financial or otherwise) or
the results of operations of the Company and its Subsidiaries, taken as a whole.
"Net Debt Position" means the difference between the Indebtedness for
Borrowed Money from banking institutions of the Company and the 1998
Consolidated Entities) and the book cash position of the Company and the 1998
Consolidated Entities; provided, that no more than DM3 million of the
consolidated book cash utilized in such calculation shall be attributable to
Xxxxx, Inc.
"Net Worth" shall mean, with respect to the Company and the 1998
Consolidated Entities, on a consolidated basis, their KONZERNEIGENKAPITAL, which
shall equal total assets less total liabilities determined in accordance with
German GAAP applied on a basis consistent with past periods.
45
"Patents" means any foreign or United States patents and patent
applications including any divisions, continuations, continuations-in-part,
substitutions or reissues thereof, whether or not patents are issued on such
applications and whether or not such applications are modified, withdrawn or
resubmitted.
"Permits" means all licenses, permits, exemptions, consents, waivers,
authorizations, rights, orders or approvals of, and all required registrations
with, any Governmental Body that are required in connection with the conduct of
the business of, or the intended use of any properties of, the Company or any of
the Subsidiaries.
"person" means any individual, corporation, partnership, limited
liability company, firm, joint venture, association, joint-stock company, trust,
unincorporated organization, Governmental Body or other entity.
"property" or "properties" means real, personal or mixed property,
tangible or intangible.
"Software and Software Guides" means any computer software programs,
source code, object code, data, documentation, (i) computer software, computer
programs, source code data and documentation, user manuals, administrator or
director guides, flow charts and programmers' notes relating to computer
software and programs developed by or on behalf of the Company or any of the
Subsidiaries.
"Taxes" shall mean all taxes, charges, fees, levies or other
assessments, including income, gross receipts, excise, property, stamp,
registrations, sales, license, payroll, consumption, withholding, franchise and
value added taxes and any secondary tax liability, imposed by Germany or any
other country or any local government or taxing authority or political
subdivision or agency thereof or therein, and such term shall include any
interest, penalties or additions attributable to such taxes, charges, fees,
levies or other assessments.
"Trade Secrets" means any trade secrets, research records, processes,
procedures, manufacturing and marketing, formulae, technical know-how,
technology, blue prints, designs, plans, inventions (whether patentable and
whether reduced to practice), invention disclosures and improvements thereto.
"Trademarks" means any foreign or United States trademarks, service
marks, trade dress, trade names, brand names, designs and logos, corporate
names, product or service identifiers, whether registered or unregistered, and
all registrations and applications for registration thereof.
46
The following capitalized terms are defined in the following Sections
of this Agreement:
Term Section
---- -------
1998 Financials 1.5(a)
Audited Financials 3.6
Balance Sheet 3.6
Balance Sheet Date 3.6
Broker 6.5
Buyer Preamble
Claims 3.10
Closing 1.1
Closing Date 2
Closing EBITDA 1.5(c)(i)
Common Stock 3.3
Company Preamble
Consolidated Entities 3.6
Contracts 3.9
Documents 3.15
Employment Agreements 6.10
Equita 4.4
Final Closing Statement 1.5(c)
German GAAP 3.6
Governmental Bodies 3.8
Indemnification Notice 11.3
Indemnifying Party 11.3
Indemnitee 11.3
Intellectual Property 3.11
Interim Financials 3.6
IP Licenses 3.11
Laws 3.8
Liabilities 3.12
Losses 11.1
Maximum Amount 11.4
Minimum Amount 11.4
NFO Preamble
NFO Indemnified Party 11.1
Noncompete Trigger Date 9.1
Orders 3.8
Preliminary Closing Statement 1.5(a)
Purchase Price 1.1
Required Consents 3.9
Representatives 6.2
47
Term Section
---- -------
Seller Preamble
Seller Indemnified Party 11.2
Sellers' Accountants 1.5(a)
Shares Preamble
Subsidiaries 3.2
Transfer Document 1.4
13.2 Consent to Arbitration. Any differences and disputes
arising out of or relating to this Agreement or the transactions contemplated
hereby shall be submitted to binding arbitration in Germany in accordance with
the rules of the German Arbitration Institution DIS. A three member panel of
arbitrators shall be selected, one by the Buyer, one by the Sellers, and the
third by the two arbitrators selected by the Buyer and the Sellers. All
proceedings shall be conducted in the English language and any documents
originally in English or German will be admissible without translation. Any
award entered in any such arbitration shall be final and binding, and may be
entered and enforced in any court of competent jurisdiction.
13.3 Notices. Any notice or other communication required or
permitted hereunder shall be in writing and shall be delivered personally, sent
by facsimile transmission or sent by certified, registered or express mail,
postage prepaid. Any such notice shall be deemed given when so delivered
personally, or sent by facsimile transmission or, if mailed, five days after the
date of deposit in the United States or German mails, as follows:
48
(a) if to the Buyer or NFO, to:
Two Pickwick Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxxx
Facsimile: (000) 000-0000
(b) if to the Sellers, to each at their address listed
on the signature pages hereto, with a copy to:
Xxxxxx Rechtsanwaelte
Xxxxxxxxxxxxxxxxx 00
00000 Xxxxxxx
Attention: Dr. Xxxxxxx Xxxxxx
Facsimile: 0114989297600
Any party may by notice given in accordance with this Section to the other
parties designate another address or person for receipt of notices hereunder.
13.4 Entire Agreement. This Agreement and any collateral
agreements executed in connection with the consummation of the transactions
contemplated hereby contain the entire agreement among the parties with respect
to the purchase of the Shares and supersede all prior agreements, written or
oral, with respect thereto.
49
13.5 Waivers and Amendments; Non-Contractual Remedies;
Preservation of Remedies. This Agreement may be amended, superseded, canceled,
renewed or extended, and the terms hereof may be waived, only by a written
instrument signed by the Buyer, NFO and the Sellers or, in the case of a waiver,
by the party waiving compliance. No delay on the part of any party in exercising
any right, power or privilege hereunder shall operate as a waiver thereof, nor
shall any waiver on the part of any party of any such right, power or privilege,
nor any single or partial exercise of any such right, power or privilege,
preclude any further exercise thereof or the exercise of any other such right,
power or privilege. The rights and remedies herein provided are cumulative and
are not exclusive of any rights or remedies that any party may otherwise have at
law or in equity. The rights and remedies of any party based upon, arising out
of or otherwise in respect of any inaccuracy in or breach of any representation,
warranty, covenant or agreement contained in this Agreement or any Documents
delivered pursuant to this Agreement shall in no way be limited by the fact that
the act, omission, occurrence or other state of facts upon which any claim of
any such inaccuracy or breach is based may also be the subject matter of any
other representation, warranty, covenant or agreement contained in this
Agreement or any Documents delivered pursuant to this Agreement (or in any other
agreement between the parties) as to which there is no inaccuracy or breach.
13.6 Governing Law. This Agreement shall be governed and
construed in accordance with the laws of Germany applicable to agreements made
and to be performed entirely within such State.
50
13.7 Binding Effect; Assignment. This Agreement shall be
binding upon and inure to the benefit of the parties and their respective
successors and legal representatives. This Agreement is not assignable except by
operation of law, except that either the Buyer or NFO may assign rights
hereunder to any of its affiliates, to any successor to all or substantially all
of its business or assets or to any bank or other financial institution that may
provide financing for the transactions contemplated hereby.
13.8 Usage. All pronouns and any variations thereof refer to
the masculine, feminine or neuter, singular or plural, as the context may
require. All terms defined in this Agreement in their singular or plural forms
have correlative meanings when used herein in their plural or singular forms,
respectively. Unless otherwise expressly provided, the words "include,"
"includes" and "including" do not limit the preceding words or terms and shall
be deemed to be followed by the words "without limitation."
13.9 Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute one and the same instrument. Each counterpart may consist of a number
of copies hereof each signed by less than all, but together signed by all of the
parties hereto.
13.10 Exhibits and Schedules; Cross References. The Exhibits
and Schedules are a part of this Agreement as if fully set forth herein and all
references to this Agreement shall be deemed to include the Exhibits and
Schedules. All references
51
herein to Sections, Exhibits and Schedules shall be deemed references to such
parts of this Agreement, unless the context shall otherwise require.
13.11 Headings. The headings in this Agreement are for
reference only, and shall not affect the interpretation of this Agreement.
13.12 Interpretation. The parties acknowledge and agree that:
(i) each party and its counsel reviewed and negotiated the terms and provisions
of this Agreement and have contributed to its revision; (ii) the rule of
construction to the effect that any ambiguities are resolved against the
drafting party shall not be employed in the interpretation of this Agreement;
and (iii) the terms and provisions of this Agreement shall be construed fairly
as to all parties hereto, regardless of which party was generally responsible
for the preparation of this Agreement.
13.13 Severability of Provisions.
(a) If any provision or any portion of any provision
of this Agreement shall be held invalid or unenforceable, the remaining portion
of such provision and the remaining provisions of this Agreement shall not be
affected thereby.
(b) If the application of any provision or any
portion of any provision of this Agreement to any person or circumstance shall
be held invalid or unenforceable, the application of such provision or portion
of such provision to persons or circumstances other than those as to which it is
held invalid or unenforceable shall not be affected thereby.
52
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
NFO EUROPE (DEUTSCHLAND) GMBH & CO. KG
By: /s/ Xxxxxxx Xxxxxxxx
------------------------
Name: Xxxxxxx Xxxxxxxx
Title:
NFO WORLDWIDE, INC.
By: /s/ X.X. Xxxxx
------------------
Name: X.X. Xxxxx
Title:
EQUITA BETEILIGUNGEN KGAA
By: /s/ Dr. Xxxxxxx Xxxxxx
--------------------------
Name: Dr. Xxxxxxx Xxxxxx
Title: Authorized Representative
Address: Am Pilgerrain 00
Xxx Xxxxxxx, Xxxxxxx
/s/ Dr. Hartmut Kiock
---------------------
Name: Dr. Hartmut Kiock
Address: Xxxxxxx Xxxxx 0x
Xxxxxxxx, Xxxxxxx
/s/ Xxxxxx Xxxxx
----------------
Name: Xxxxxx Xxxxx
Address: Xxxxxxxxxxxxxxxx 0
Xxxxxxxxxxx, Xxxxxxx
/s/ Xx. Xxxx-Xxxxxx Xxxxx
-------------------------
Name: Xx. Xxxx-Xxxxxx Xxxxx
Address: Xxxxxxxxxxxxxxxxxxxxxx 00
Xxxxxxxx, Xxxxxxx
Exhibit A
---------
FORM OF
STOCK TRANSFER DOCUMENT
By signing this Stock Transfer Document the undersigned shareholder of
Infratest Xxxxx Aktiengesellschaft Holding tranfers title and ownership in the
attached share certificate to NFO Europe (Deutschland) GmbH & Co. KG in
accordance with the Stock Purchase Agreement entered into on November 10, 1998,
and with effect as from the closing of the transactions described herein.
------------------------------
