SYKES HOLDINGS OF BELGIUM, B.V.B.A.
STOCK PURCHASE AGREEMENT
BETWEEN
SYKES HOLDINGS OF BELGIUM, B.V.B.A.
as BUYER
AND
CYCLE, B.V.B.A.,
AND
XXXXXXX XXXXXXX
as SELLERS
MARCH ____, 1997
TABLE OF CONTENTS
1. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Purchase and Sale of Target Shares. . . . . . . . . . . . . . . 4
(a) Basic Transaction . . . . . . . . . . . . . . . . . . . . . 4
(b) Purchase Price . . . . . . . . . . . . . . . . . . . . . . 4
(c) The Closing . . . . . . . . . . . . . . . . . . . . . . . . 4
(d) Closing Deliveries; XxXxxxx . . . . . . . . . . . . . . . . 4
(e) Closing Deliveries; Cycle . . . . . . . . . . . . . . . . . 4
(f) Closing Deliveries; Buyer . . . . . . . . . . . . . . . . . 5
3. Representations and Warranties Concerning the Transaction . . . 5
(a) Representations and Warranties of the Seller . . . . . . . 5
(b) Representations and Warranties of the Buyer . . . . . . . . 6
4. Representations and Warranties Concerning the Target . . . . . . 7
(a) Organization, Qualification, and Corporate Power . . . . . 7
(b) Capitalization . . . . . . . . . . . . . . . . . . . . . . 7
(c) Noncontravention . . . . . . . . . . . . . . . . . . . . . 7
(d) Brokers' Fees . . . . . . . . . . . . . . . . . . . . . . . 8
(e) Title to Assets . . . . . . . . . . . . . . . . . . . . . . 8
(f) Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . 8
(g) Financial Statements . . . . . . . . . . . . . . . . . . . 8
(h) Undisclosed Liabilities . . . . . . . . . . . . . . . . . . 8
(i) Legal Compliance . . . . . . . . . . . . . . . . . . . . . . 8
(j) Tax Matters . . . . . . . . . . . . . . . . . . . . . . . . . 9
(k) Real Property . . . . . . . . . . . . . . . . . . . . . . . 9
(l) Intellectual Property . . . . . . . . . . . . . . . . . . . 11
(m) Tangible Assets . . . . . . . . . . . . . . . . . . . . . . 13
(n) Inventory . . . . . . . . . . . . . . . . . . . . . . . . . 13
(o) Contracts . . . . . . . . . . . . . . . . . . . . . . . . . 13
(p) Notes and Accounts Receivables . . . . . . . . . . . . . . 14
(q) Powers of Attorney . . . . . . . . . . . . . . . . . . . . 15
(r) Insurance . . . . . . . . . . . . . . . . . . . . . . . . . 15
(s) Litigation . . . . . . . . . . . . . . . . . . . . . . . . 15
(t) Product Warranty . . . . . . . . . . . . . . . . . . . . . 16
(u) Product Liability . . . . . . . . . . . . . . . . . . . . . 16
(v) Employees . . . . . . . . . . . . . . . . . . . . . . . . . 16
(w) Employee Benefits . . . . . . . . . . . . . . . . . . . . . 16
(x) Guaranties . . . . . . . . . . . . . . . . . . . . . . . . 16
(y) Environmental, Health, and Safety Matters . . . . . . . . . 16
(z) Certain Business Relationships with the Target . . . . . . 17
(aa) Disclosure . . . . . . . . . . . . . . . . . . . . . . . . 17
5. Pre-Closing Covenants . . . . . . . . . . . . . . . . . . . . . 17
(a) General . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(b) Notices and Consents . . . . . . . . . . . . . . . . . . . 17
(c) Operation of Business . . . . . . . . . . . . . . . . . . . 17
(d) Preservation of Business . . . . . . . . . . . . . . . . . 18
(e) Full Access . . . . . . . . . . . . . . . . . . . . . . . . 18
(f) Notice of Developments . . . . . . . . . . . . . . . . . . 18
(g) Exclusivity . . . . . . . . . . . . . . . . . . . . . . . . 18
6. Post-Closing Covenants . . . . . . . . . . . . . . . . . . . . . 18
(a) General . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(b) Litigation Support . . . . . . . . . . . . . . . . . . . . 18
(c) Transition . . . . . . . . . . . . . . . . . . . . . . . . 19
(d) Confidentiality . . . . . . . . . . . . . . . . . . . . . . 19
7. Conditions to Obligation to Close . . . . . . . . . . . . . . . 19
(a) Conditions to Obligation of the Buyer . . . . . . . . . . . 19
(b) Conditions to Obligation of the Sellers . . . . . . . . . . 20
88. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . 21
(a) Survival of Representations and Warranties . . . . . . . . 21
(b) Indemnification Provisions for Benefit of the Buyer . . . . 21
(c) Indemnification Provisions for Benefit of the Sellers . . . 21
(d) Matters Involving Third Parties . . . . . . . . . . . . . . 22
(e) Recovery Under Escrow . . . . . . . . . . . . . . . . . . . 23
(f) Other Indemnification Provisions . . . . . . . . . . . . . 23
9. Tax Matters . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(a) Tax Periods Beginning Before and Ending After the Closing
Date . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(b) Cooperation on Tax Matters . . . . . . . . . . . . . . . . 24
(c) Tax Sharing Agreements . . . . . . . . . . . . . . . . . . 24
(d) Certain Taxes . . . . . . . . . . . . . . . . . . . . . . . 24
10. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . 24
(a) Press Releases and Public Announcements . . . . . . . . . . 24
(b) No Third-Party Beneficiaries . . . . . . . . . . . . . . . 25
(c) Entire Agreement . . . . . . . . . . . . . . . . . . . . . 25
(d) Succession and Assignment . . . . . . . . . . . . . . . . . 25
(e) Counterparts . . . . . . . . . . . . . . . . . . . . . . . 25
(f) Headings . . . . . . . . . . . . . . . . . . . . . . . . . 25
(g) Notices . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(h) Governing Law . . . . . . . . . . . . . . . . . . . . . . . 26
(i) Amendments and Waivers . . . . . . . . . . . . . . . . . . 26
(j) Severability . . . . . . . . . . . . . . . . . . . . . . . 26
(k) Expenses . . . . . . . . . . . . . . . . . . . . . . . . . 26
(l) Construction . . . . . . . . . . . . . . . . . . . . . . . 27
(m) Incorporation of Exhibits, Annexes, and Schedules . . . . . 27
(n) Specific Performance . . . . . . . . . . . . . . . . . . . 27
(o) Submission to Jurisdiction . . . . . . . . . . . . . . . . 27
SCHEDULES AND EXHIBITS
EXHIBIT A. Escrow Agreement
EXHIBIT B. Financial Statements
EXHIBIT C. Employment Agreement
LIST OF SCHEDULES
SCHEDULE DESCRIPTION
2(a) Purchase Price
4(k)(ii) Real Property Leases
4(l)(iii) Intellectual Property Owned by Target
4(l)(iv) Intellectual Property Owned by Third Party
4(o) Contracts
4(r) Insurance
4(v) Employees
4(w) Employee Benefit Plans
STOCK PURCHASE AGREEMENT
This Agreement is entered into on March ____, 1997, effective as of
January 1, 1997 (the "Effective Date"), by and among SYKES HOLDINGS OF
BELGIUM, B.V.B.A., organized under the laws of Belgium (the "Buyer"),
CYCLE, B.V.B.A., a corporation organized under the laws of Belgium
("Cycle"), and XXXXXXX XXXXXXX ("XxXxxxx") (Cycle and XxXxxxx are referred
to collectively as the "Sellers"). The Buyer and the Sellers are referred
to collectively herein as the "Parties."
RECITALS
X. XxXxxxx owns directly or indirectly, all of the outstanding
capital stock of Cycle and Interactive Data Solutions, Ltd. ("IDS").
Cycle owns all of the issued and outstanding capital stock of Translation,
Fulfilment & Communication, N.V., a corporation organized under the laws
of Belgium (the "Target" or "Traffic").
B. On or about December 10, 1996, XxXxxxx and Xxxxx Enterprises
Incorporated executed a letter of intent (the "Letter"), pursuant to which
the Buyer contemplated the acquisition, directly or through a subsidiary,
of (i) all of the capital stock of Traffic, (ii) certain tangible personal
property of IDS, and (iii) continuity of the work force which theretofore
provided services to Traffic. The Letter contemplated that the
transaction therein proposed would be consummated effective January 1,
1997 (the "Effective Date").
C. The parties desire to enter into this transaction to consummate
their mutual intention that the Buyer acquire the business as described in
the letter, effective as of the Effective Date. The parties desire to
enter into a transaction in which the Buyer will purchase from the
Sellers, and the Sellers will sell to the Buyer, all of the outstanding
capital stock of the Target in return for cash.
Now, therefore, in consideration of the premises and the mutual
promises herein made, and in consideration of the representations,
warranties, and covenants herein contained, the Parties agree as follows.
1. Definitions.
"Adverse Consequences" means all actions, suits, proceedings,
hearings, investigations, charges, complaints, claims, demands,
injunctions, judgments, orders, decrees, rulings, damages, dues,
penalties, fines, costs, amounts paid in settlement, Liabilities,
obligations, Taxes, liens, losses, expenses, and fees, including court
costs and attorneys' fees and expenses.
"Basis" means any past or present fact, situation, circumstance,
status, condition, activity, practice, plan, occurrence, event, incident,
action, failure to act, or transaction that forms or could form the basis
for any specified consequence.
"Buyer" has the meaning set forth in the preface above.
"Closing Date" shall be the date on which the transaction herein
contemplated are closed.
"Code" means the United States Internal Revenue Code of 1986, as
amended.
"Confidential Information" means any information concerning the
businesses and affairs of the Sellers or the Target that is not already
generally available to the public.
"Disclosure Schedule" has the meaning set forth in Section 4 below.
"Employee Benefit Plan" means any deferred compensation or retirement
plan or arrangement or vacation, sick leave, insurance, medical benefits,
or other plan provided by the Target for the benefit of employees of the
Target whether or not provided pursuant to the requirements or subject to
the approval of any governmental entity.
"Environmental, Health, and Safety Requirements" shall mean all
federal, state, local and foreign statutes, regulations, ordinances and
other provisions having the force or effect of law, all judicial and
administrative orders and determinations, all contractual obligations and
all common law concerning public health and safety, worker health and
safety, and pollution or protection of the environment, including without
limitation all those relating to the presence, use, production,
generation, handling, transportation, treatment, storage, disposal,
distribution, labeling, testing, processing, discharge, release,
threatened release, control, or cleanup of any hazardous materials,
substances or wastes, chemical substances or mixtures, pesticides,
pollutants, contaminants, toxic chemicals, petroleum products or
byproducts, asbestos, polychlorinated biphenyls, noise or radiation, each
as amended and as now or hereafter in effect.
"Financial Statements" has the meaning set forth in Section 4(g)
below.
"GAAP" means United States generally accepted accounting principles
as in effect from time to time.
"Intellectual Property" means (a) all inventions (whether patentable
or unpatentable and whether or not reduced to practice), all improvements
thereto, and all patents, patent applications, and patent disclosures,
together with all reissuances, continuations, continuations-in-part,
revisions, extensions, and reexaminations thereof, (b) all trademarks,
service marks, trade dress, logos, trade names, and corporate names,
together with all translations, adaptations, derivations, and combinations
thereof and including all goodwill associated therewith, and all
applications, registrations, and renewals in connection therewith, (c) all
copyrightable works, all copyrights, and all applications, registrations,
and renewals in connection therewith, (d) all mask works and all
applications, registrations, and renewals in connection therewith, (e) all
trade secrets and confidential business information (including ideas,
research and development, know-how, formulas, compositions, manufacturing
and production processes and techniques, technical data, designs,
drawings, specifications, customer and supplier lists, pricing and cost
information, and business and marketing plans and proposals), (f) all
computer software (including data and related documentation), (g) all
other proprietary rights, and (h) all copies and tangible embodiments
thereof (in whatever form or medium).
"Knowledge" means actual knowledge after reasonable investigation.
"Liability" means any liability (whether known or unknown, whether
asserted or unasserted, whether absolute or contingent, whether accrued or
unaccrued, whether liquidated or unliquidated, and whether due or to
become due), including any liability for Taxes.
"Most Recent Balance Sheet" means the balance sheet contained within
the Most Recent Financial Statements.
"Most Recent Financial Statements" has the meaning set forth in
Section 4(g) below.
"Most Recent Fiscal Month End" has the meaning set forth in Section
4(g) below.
"Most Recent Fiscal Year End" has the meaning set forth in Section
4(g) below.
"Ordinary Course of Business" means the ordinary course of business
consistent with past custom and practice (including with respect to
quantity and frequency).
"Party" has the meaning set forth in the preface above.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an
unincorporated organization, or a governmental entity (or any department,
agency, or political subdivision thereof).
"Purchase Price" has the meaning set forth in Section 2(b) below.
"Security Interest" means any mortgage, pledge, lien, encumbrance,
charge, or other security interest, other than (a) mechanic's,
materialmen's, and similar liens, (b) liens for Taxes not yet due and
payable or for Taxes that the taxpayer is contesting in good faith through
appropriate proceedings, (c) purchase money liens and liens securing
rental payments under capital lease arrangements, and (d) other liens
arising in the Ordinary Course of Business and not incurred in connection
with the borrowing of money.
"Seller" has the meaning set forth in the preface above.
"Subsidiary" means any corporation with respect to which a specified
Person (or a Subsidiary thereof) owns a majority of the common stock or
has the power to vote or direct the voting of sufficient securities to
elect a majority of the directors.
"Target" has the meaning set forth in the preface above.
"Target Balance Sheet" has the meaning set forth in Section 4(g).
"Target Share" means any share of the Common Stock of the Target.
"Tax" means any United States or foreign, federal, state, local,
income, gross receipts, license, payroll, employment, excise, severance,
stamp, occupation, premium, windfall profits, environmental, customs
duties, capital stock, franchise, profits, withholding, social security
(or similar), unemployment, disability, real property, personal property,
sales, use, transfer, registration, value added, alternative or add-on
minimum, estimated, or other tax of any kind whatsoever, including any
interest, penalty, or addition thereto, whether disputed or not.
"Tax Return" means any return, declaration, report, claim for refund,
or information return or statement relating to Taxes, including any
schedule or attachment thereto, and including any amendment thereof.
2. Purchase and Sale of Target Shares."
(a) Basic Transaction"_. On and subject to the terms and conditions
of this Agreement, the Buyer agrees to purchase from the Sellers, and the
Sellers agree to sell to the Buyer on the Closing Date, all of their
Target Shares for the consideration specified below in this Section 2.
(b) Purchase Price". The Buyer agrees to pay to the Seller at the
Closing U.S. $1,620,000 (the "Purchase Price") by (i) delivery of cash
payable by wire transfer or delivery of other immediately available funds
of the sum of U.S. $1,120,000 to be delivered to the Seller and (ii)
deposit into Escrow the sum of U.S. $500,000, to be held in accordance
with the terms of the Escrow Agreement attached hereto as Exhibit A.
(c) The Closing". The closing of the transactions contemplated by
this Agreement (the "Closing") shall take place at the offices of
___________________________ in ___________________________________,
commencing at 9:00 A.M. local time on March 28, 1997, or such other date
as the parties may mutually determine (the "Closing Date"), provided that
the Closing Date shall not later than March 31, 1997.
(d) Closing Deliveries; XxXxxxx. At the Closing, XxXxxxx will
deliver to Buyer:
(i) the employment agreements with key personnel in the form
attached hereto as composite Exhibit C; and
(ii) all other closing certificates and documents provided for
in this Agreement.
(e) Closing Deliveries; Cycle. At the Closing, Cycle and IDS will
deliver to Buyer:
(i) certificates representing all of the authorized, issued and
outstanding stock of Target, together with appropriately
executed and acknowledged transfer documents;
(ii) full and complete releases of the Target; and
(iii) all other closing certificates and documents provided
for in this Agreement.
(f) Closing Deliveries; Buyer. At the Closing, Buyer will deliver
to Cycle and XxXxxxx, as appropriate, the following:
(i) the Purchase Price, as provided in Section 2(b) hereof;
(ii) the Employment Agreements described in Section 2(d) hereof;
and
(iii) all other closing certificates and documents required
to be delivered by the Buyer pursuant to this Agreement.
3. Representations and Warranties Concerning the Transaction".
(a) Representations and Warranties of the Seller". Sellers, jointly
and severally, represent and warrant to the Buyer that the statements
contained in this Section 3(a) are correct and complete as of the date of
this Agreement with respect to each of them.
(i) Authorization of Transaction. Each Seller has full power
and authority to execute and deliver this Agreement and to perform
its obligations hereunder. This Agreement constitutes the valid and
legally binding obligation of each Seller, enforceable in accordance
with its terms and conditions. The Sellers need not give any notice
to, make any filing with, or obtain any authorization, consent, or
approval of any government or governmental agency in order to
consummate the transactions contemplated by this Agreement.
(ii) Noncontravention. Neither the execution and the delivery of
this Agreement, nor the consummation of the transactions contemplated
hereby, will (A) violate any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court to which
any Seller or the Target is subject or (B) conflict with, result in a
breach of, constitute a default under, result in the acceleration of,
create in any party the right to accelerate, terminate, modify, or
cancel, or require any notice under any agreement, contract, lease,
license, instrument, or other arrangement to which any Seller or the
Target is a party or by which he or it is bound or to which any of
its assets is subject.
(iii) Brokers' Fees. Neither the Sellers nor the Target has
any Liability or obligation to pay any fees or commissions to any
broker, finder, or agent with respect to the transactions
contemplated by this Agreement for which the Buyer could become
liable or obligated.
(iv) Target Shares. Cycle owns and holds of record and owns
beneficially all of the Target Shares free and clear of any
restrictions on transfer, Taxes, Security Interests, options,
warrants, purchase rights, contracts, commitments, equities, claims,
and demands. No Seller is a party to any option, warrant, purchase
right, or other contract or commitment that could require such Seller
to sell, transfer, or otherwise dispose of any capital stock of the
Target (other than this Agreement). No Seller is a party to any
voting trust, proxy, or other agreement or understanding with respect
to the voting of any capital stock of the Target.
(b) Representations and Warranties of the Buyer". The Buyer
represents and warrants to the Sellers that the statements contained in
this Section 3(b) are correct and complete as of the date of this
Agreement and will be correct and complete as of the Closing Date (as
though made then and as though the Effective Date were substituted for the
date of this Agreement throughout this Section 3(b)).
(i) Organization of the Buyer. The Buyer is a corporation duly
organized, validly existing, and in good standing under the laws of
the jurisdiction of its incorporation.
(ii) Authorization of Transaction. The Buyer has full power and
authority (including full corporate power and authority) to execute
and deliver this Agreement and to perform its obligations hereunder.
This Agreement constitutes the valid and legally binding obligation
of the Buyer, enforceable in accordance with its terms and
conditions. The Buyer need not give any notice to, make any filing
with, or obtain any authorization, consent, or approval of any
government or governmental agency in order to consummate the
transactions contemplated by this Agreement.
(iii) Noncontravention. Neither the execution and the
delivery of this Agreement, nor the consummation of the transactions
contemplated hereby, will (A) violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling,
charge, or other restriction of any government, governmental agency,
or court to which the Buyer is subject or any provision of its
charter or bylaws or (B) conflict with, result in a breach of,
constitute a default under, result in the acceleration of, create in
any party the right to accelerate, terminate, modify, or cancel, or
require any notice under any agreement, contract, lease, license,
instrument, or other arrangement to which the Buyer is a party or by
which it is bound or to which any of its assets is subject.
(iv) Brokers' Fees. The Buyer has no Liability or obligation to
pay any fees or commissions to any broker, finder, or agent with
respect to the transactions contemplated by this Agreement for which
any Seller could become liable or obligated.
4. Representations and Warranties Concerning the Target". The
Sellers, jointly and severally, represent and warrant to the Buyer that
the statements contained in this Section 4 are correct and complete as of
the date of this Agreement, except as set forth in the Schedules
referenced in the following provisions. Nothing in the Schedules
hereinafter referenced shall be deemed adequate to disclose an exception
to a representation or warranty made herein, however, unless the Schedule
identifies the exception with particularity and describes the relevant
facts in detail. Without limiting the generality of the foregoing, the
mere listing (or inclusion of a copy) of a document or other item shall
not be deemed adequate to disclose an exception to a representation or
warranty made herein (unless the representation or warranty has to do with
the existence of the document or other item itself).
(a) Organization, Qualification, and Corporate Power. The Target is
a corporation duly organized, validly existing, and in good standing under
the laws of the jurisdiction of its incorporation. The Target is duly
authorized to conduct business and is in good standing under the laws of
each jurisdiction where such qualification is required. The Target has
full corporate power and authority and all licenses, permits, and
authorizations necessary to carry on the businesses in which it is engaged
and to own and use the properties owned and used by it. The Seller has
delivered to the Buyer correct and complete copies of the charter and
bylaws of the Target (as amended to date). The minute books (containing
the records of meetings of the stockholders, the board of directors, and
any committees of the board of directors), the stock certificate books,
and the stock record books of each of the Target are correct and complete.
The Target is not in default under or in violation of any provision of its
charter or bylaws.
(b) Capitalization. All of the issued and outstanding Target Shares
have been duly authorized, are validly issued, fully paid, and
nonassessable, and are held beneficially and of record by the Seller.
There are no outstanding or authorized options, warrants, purchase rights,
subscription rights, conversion rights, exchange rights, or other
contracts or commitments that could require the Target to issue, sell, or
otherwise cause to become outstanding any of its capital stock. There are
no outstanding or authorized stock appreciation, phantom stock, profit
participation, or similar rights with respect to the Target. There are no
voting trusts, proxies, or other agreements or understandings with respect
to the voting of the capital stock of the Target.
(c) Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby,
will (i) violate any constitution, statute, regulation, rule, injunction,
judgment, order, decree, ruling, charge, or other restriction of any
government, governmental agency, or court to which the Target is subject
or any provision of the charter or bylaws of any of the Target or (ii)
conflict with, result in a breach of, constitute a default under, result
in the acceleration of, create in any party the right to accelerate,
terminate, modify, or cancel, or require any notice under any agreement,
contract, lease, license, instrument, or other arrangement to which any of
the Target is a party or by which it is bound or to which any of its
assets is subject (or result in the imposition of any Security Interest
upon any of its assets). The Target is not required to give any notice to,
make any filing with, or obtain any authorization, consent, or approval of
any government or governmental agency in order for the Parties to
consummate the transactions contemplated by this Agreement.
(d) Brokers' Fees. The Target has no Liability or obligation to pay
any fees or commissions to any broker, finder, or agent with respect to
the transactions contemplated by this Agreement.
(e) Title to Assets. The Target has good and marketable title to, or
a valid leasehold interest in, the properties and assets used by it,
located on its premises, or shown on the Target Balance Sheet, free and
clear of all Security Interests.
(f) Subsidiaries. The Target has no subsidiaries.
(g) Financial Statements. Attached hereto as Exhibit B are the
following financial statements (collectively the "Financial Statements"):
(i) unaudited balance sheets and statements of income, changes in
stockholders' equity, and cash flow as of and for the fiscal year ended
December 31, 1996 (the "Most Recent Fiscal Year End") for Traffic and IDS;
(ii) unaudited consolidated and consolidating balance sheets and
statements of income, changes in stockholders' equity, and cash flow (the
"Most Recent Financial Statements") as of and for the two months ended
February, 1997 (the "Most Recent Fiscal Month End") for Traffic; and (iii)
unaudited consolidated balance sheets as of December 31, 1996 and as of
the Closing Date for Traffic, N.V., (the "Target Balance Sheet"). The
Financial Statements (including the notes thereto) have been prepared in
accordance with GAAP applied on a consistent basis throughout the periods
covered thereby, present fairly the financial condition of the Target as
of such dates and the results of operations of the Target for such
periods, are correct and complete, and are consistent with the books and
records of the Target (which books and records are correct and complete);
provided, however, that the Most Recent Financial Statements are subject
to normal year-end adjustments (which will not be material individually or
in the aggregate) and lack footnotes and other presentation items.
(h) Undisclosed Liabilities. The Target has no Liability (and there
is no Basis for any present or future action, suit, proceeding, hearing,
investigation, charge, complaint, claim, or demand against the Target
giving rise to any Liability), except for Liabilities set forth on the
face of the Target Balance Sheet (rather than in any notes thereto).
(i) Legal Compliance. The Target and its predecessors and XxXxxxx
have complied with all applicable laws (including rules, regulations,
codes, plans, injunctions, judgments, orders, decrees, rulings, and
charges thereunder) of federal, state, local, and foreign governments (and
all agencies thereof), and no action, suit, proceeding, hearing,
investigation, charge, complaint, claim, demand, or notice has been filed
or commenced against any of them alleging any failure so to comply.
(j) Tax Matters.
(i) The Sellers and Traffic have filed all Tax Returns that
they are required to file. All such Tax Returns were correct and
complete in all respects. All Taxes owed by any of the Sellers and
Traffic (whether or not shown on any Tax Return) have been paid,
except for taxes for the 1996 tax year; which are not due. The
Sellers and Traffic currently are not the beneficiaries of any
extension of time within which to file any Tax Return. No claim has
ever been made by an authority in a jurisdiction where the Sellers do
not file Tax Returns that any Seller is or may be subject to taxation
by that jurisdiction. There are no Security Interests on any of the
assets of the Sellers that arose in connection with any failure (or
alleged failure) to pay any Tax.
(ii) The Sellers and Traffic have withheld and paid all Taxes
required to have been withheld and paid in connection with amounts
paid or owing to any employee, independent contractor, creditor,
stockholder, or other third party.
(iii) No Seller or Traffic or director or officer (or
employee responsible for Tax matters) of any Seller or Traffic
expects any authority to assess any additional Taxes for any period
for which Tax Returns have been filed. There is no dispute or claim
concerning any Tax Liability of the Sellers or Traffic either (A)
claimed or raised by any authority in writing or (B) as to which any
of the Sellers or Traffic and the directors and officers (and
employees responsible for Tax matters) of the Sellers or Traffic have
Knowledge based upon personal contact with any agent of such
authority. Schedule 4(j) of the Disclosure Schedule lists all
federal, state, local, and foreign income Tax Returns filed with
respect to the Sellers and Traffic for taxable periods ended on or
after December 31, 1994, indicates those Tax Returns that have been
audited, and indicates those Tax Returns that currently are the
subject of audit.
(iv) Neither the Target nor any of Seller has waived any statute
of limitations in respect of Taxes or agreed to any extension of time
with respect to a Tax assessment or deficiency.
(v) Neither the Target nor any Seller is a party to any Tax
allocation or sharing agreement. The Target has no Liability for the
Taxes of any Person, as a transferee or successor, by contract, or
otherwise.
(k) Real and Personal Property.
(i) The Target does not own any real property.
(ii) Schedule 4(k)(ii) lists and describes briefly all real
property leased or subleased to the Target. The Sellers have
delivered to the Buyer correct and complete copies of the leases and
subleases listed in Schedule 4(k)(ii). With respect to each lease and
sublease listed in Schedule 4(k)(ii):
(A) the lease or sublease is legal, valid, binding,
enforceable, and in full force and effect;
(B) the lease or sublease will continue to be legal,
valid, binding, enforceable, and in full force and effect on
identical terms following the consummation of the transactions
contemplated hereby;
(C) no party to the lease or sublease is in breach or
default, and no event has occurred which, with notice or lapse
of time, would constitute a breach or default or permit
termination, modification, or acceleration thereunder;
(D) no party to the lease or sublease has repudiated any
provision thereof;
(E) there are no disputes, oral agreements, or forbearance
programs in effect as to the lease or sublease;
(F) with respect to each sublease, the representations and
warranties set forth in subsections (A) through (E) above are
true and correct with respect to the underlying lease;
(G) the Target has not assigned, transferred, conveyed,
mortgaged, deeded in trust, or encumbered any interest in the
leasehold or subleasehold;
(H) all facilities leased or subleased thereunder have
received all approvals of governmental authorities (including
licenses and permits) required in connection with the operation
thereof and have been operated and maintained in accordance with
applicable laws, rules, and regulations;
(I) all facilities leased or subleased thereunder are
supplied with utilities and other services necessary for the
operation of said facilities; and
(J) the owner of the facility leased or subleased has good
and marketable title to the parcel of real property, free and
clear of any Security Interest, easement, covenant, or other
restriction, except for installments of special easements not
yet delinquent and recorded easements, covenants, and other
restrictions which do not impair the current use, occupancy, or
value, or the marketability of title, of the property subject
thereto.
(l) Intellectual Property"_.
(i) The Target owns or has the right to use pursuant to
license, sublicense, agreement, or permission all Intellectual
Property necessary or desirable for the operation of the businesses
of the Target as presently conducted and as presently proposed to be
conducted. Each item of Intellectual Property owned or used by any of
the Sellers in the ordinary course of the Business immediately prior
to the Closing hereunder will be owned or available for use by the
Target on identical terms and conditions immediately subsequent to
the Closing hereunder. The Target and the Sellers have taken all
necessary and desirable action to maintain and protect each item of
Intellectual Property that it owns or uses.
(ii) Neither the Target nor any Seller has interfered with,
infringed upon, misappropriated, or otherwise come into conflict with
any Intellectual Property rights of third parties, and none of the
Sellers and the directors and officers (and employees with
responsibility for Intellectual Property matters) of the Sellers has
ever received any charge, complaint, claim, demand, or notice
alleging any such interference, infringement, misappropriation, or
violation (including any claim that any of the Sellers must license
or refrain from using any Intellectual Property rights of any third
party). To the Knowledge of any of the Sellers and the directors and
officers (and employees with responsibility for Intellectual Property
matters) of the Sellers, no third party has interfered with,
infringed upon, misappropriated, or otherwise come into conflict with
any Intellectual Property rights of the Sellers or the Target.
(iii) Schedule 4(l)(iii) identifies each patent or
registration which has been issued to any of the Sellers and the
Target with respect to any of its Intellectual Property, identifies
each pending patent application or application for registration which
any of the Sellers and the Target has made with respect to any of its
Intellectual Property, and identifies each license, agreement, or
other permission which any of the Sellers and the Target has granted
to any third party with respect to any of its Intellectual Property
(together with any exceptions). The Sellers have delivered to the
Buyer correct and complete copies of all such patents, registrations,
applications, licenses, agreements, and permissions (as amended to
date) and have made available to the Buyer correct and complete
copies of all other written documentation evidencing ownership and
prosecution (if applicable) of each such item. Schedule 4(l)(iii)
also identifies each trade name or unregistered trademark used by the
Target in connection with any of its businesses. With respect to each
item of Intellectual Property required to be identified in Schedule
4(l)(iii):
(A) the Target possesses all right, title, and interest in
and to the item, free and clear of any Security Interest,
license, or other restriction;
(B) the item is not subject to any outstanding injunction,
judgment, order, decree, ruling, or charge;
(C) no action, suit, proceeding, hearing, investigation,
charge, complaint, claim, or demand is pending or, to the
Knowledge of any of the Seller and the directors and officers
(and employees with responsibility for Intellectual Property
matters) of the Target, is threatened which challenges the
legality, validity, enforceability, use, or ownership of the
item; and
(D) the Target has not agreed to indemnify any Person for
or against any interference, infringement, misappropriation, or
other conflict with respect to the item.
(iv) Schedule 4(l)(iv) identifies each item of Intellectual
Property that any third party owns and that the Sellers have used on
the Target uses pursuant to license, sublicense, agreement, or
permission. The Sellers have delivered to the Buyer correct and
complete copies of all such licenses, sublicenses, agreements, and
permissions (as amended to date). With respect to each item of
Intellectual Property required to be identified in Schedule 4(l)(iv):
(A) the license, sublicense, agreement, or permission
covering the item is legal, valid, binding, enforceable, and in
full force and effect;
(B) the license, sublicense, agreement, or permission will
continue to be legal, valid, binding, enforceable, and in full
force and effect on identical terms following the consummation
of the transactions contemplated hereby;
(C) no party to the license, sublicense, agreement, or
permission is in breach or default, and no event has occurred
which with notice or lapse of time would constitute a breach or
default or permit termination, modification, or acceleration
thereunder;
(D) no party to the license, sublicense, agreement, or
permission has repudiated any provision thereof;
(E) with respect to each sublicense, the representations
and warranties set forth in subsections (A) through (D) above
are true and correct with respect to the underlying license;
(F) the underlying item of Intellectual Property is not
subject to any outstanding injunction, judgment, order, decree,
ruling, or charge;
(G) no action, suit, proceeding, hearing, investigation,
charge, complaint, claim, or demand is pending or, to the
Knowledge of any of the Seller and the directors and officers
(and employees with responsibility for Intellectual Property
matters) of the Target, is threatened which challenges the
legality, validity, or enforceability of the underlying item of
Intellectual Property; and
(H) the Target has not granted any sublicense or similar
right with respect to the license, sublicense, agreement, or
permission.
(v) To the Knowledge of any of the Sellers and the directors
and officers (and employees with responsibility for Intellectual
Property matters) of the Sellers, the Target will not interfere with,
infringe upon, misappropriate, or otherwise come into conflict with,
any Intellectual Property rights of third parties as a result of the
continued operation of its businesses as previously conducted and by
the Sellers as presently proposed to be conducted.
(vi) None of the Sellers and the directors and officers (and
employees with responsibility for Intellectual Property matters) of
the Sellers has any Knowledge of any new products, inventions,
procedures, or methods of manufacturing or processing that any
competitors or other third parties have developed which reasonably
could be expected to supersede or make obsolete any product or
process of any of the Target.
(m) Tangible Assets. Upon the sale of assets, the Target owns or
leases all machinery, equipment, and other tangible assets necessary for
the conduct of its businesses as previously conducted by the Sellers and
as presently proposed to be conducted by the Target. Each such tangible
asset is free from defects (patent and latent), has been maintained in
accordance with normal industry practice, is in good operating condition
and repair (subject to normal wear and tear), and is suitable for the
purposes for which it presently is used and presently is proposed to be
used.
(n) Inventory. The inventory of the Target consists of supplies,
manufactured and purchased parts, goods in process, and finished goods,
all of which is merchantable and fit for the purpose for which it was
procured or manufactured, and none of which is slow-moving, obsolete,
damaged, or defective, subject only to the reserve for inventory writedown
set forth on the face of the Target Balance Sheet.
(o) Contracts. Schedule 4(o) lists the following contracts and other
agreements to which the Target is a party:
(i) any agreement (or group of related agreements) for the
lease of personal property to or from any Person providing for lease
payments in excess of U.S. $5,000 per annum;
(ii) any agreement (or group of related agreements) for the
purchase or sale of raw materials, commodities, supplies, products,
or other personal property, or for the furnishing or receipt of
services, the performance of which will extend over a period of more
than one year, result in a material loss to the Target, or involve
consideration in excess of U.S. $5,000;
(iii) any agreement concerning a partnership or joint
venture;
(iv) any agreement (or group of related agreements) under which
it has created, incurred, assumed, or guaranteed any indebtedness for
borrowed money, or any capitalized lease obligation, in excess of
U.S. $5,000 or under which it has imposed a Security Interest on any
of its assets, tangible or intangible;
(v) any agreement concerning confidentiality or noncompetition;
(vi) any agreement with the Seller;
(vii) any profit sharing, stock option, stock purchase,
stock appreciation, deferred compensation, severance, or other
material plan or arrangement for the benefit of its current or former
directors, officers, and employees;
(viii) any collective bargaining agreement;
(ix) any agreement for the employment of any individual on a
full-time, part-time, consulting, or other basis providing annual
compensation in excess of U.S. $5,000 or providing severance
benefits;
(x) any agreement under which it has advanced or loaned any
amount to any of its directors, officers, and employees outside the
Ordinary Course of Business;
(xi) any agreement under which the consequences of a default or
termination could have a material adverse effect on the business,
financial condition, operations, results of operations, or future
prospects of the Target; or
(xii) any other agreement (or group of related agreements)
the performance of which involves consideration in excess of U.S.
$5,000.
The Sellers have delivered to the Buyer a correct and complete copy of
each written agreement listed in Schedule 4(o) and a written summary
setting forth the terms and conditions of each oral agreement referred to
in Schedule 4(o). With respect to each such agreement: (A) the agreement
is legal, valid, binding, enforceable, and in full force and effect; (B)
the agreement will continue to be legal, valid, binding, enforceable, and
in full force and effect on identical terms following the consummation of
the transactions contemplated hereby; (C) no party is in breach or
default, and no event has occurred which with notice or lapse of time
would constitute a breach or default, or permit termination, modification,
or acceleration, under the agreement; and (D) no party has repudiated any
provision of the agreement.
(p) Notes and Accounts Receivable. All notes and accounts receivable
of the Target are reflected properly on their books and records, are valid
receivables subject to no setoffs or counterclaims, are current and
collectible, and will be collected in accordance with their terms at their
recorded amounts, subject only to the reserve for bad debts set forth on
the face of the Target Balance Sheet (rather than in any notes thereto) as
adjusted for the passage of time through the Closing Date.
(q) Powers of Attorney. There are no outstanding powers of attorney
executed on behalf of the Target.
(r) Insurance. Schedule 4(r) sets forth the following information
with respect to each insurance policy (including policies providing
property, casualty, liability, and workers' compensation coverage and bond
and surety arrangements) to which any of the Sellers or the Target has
been a party, a named insured, or otherwise the beneficiary of coverage at
any time within the past 5 years:
(i) the name, address, and telephone number of the agent;
(ii) the name of the insurer, the name of the policyholder, and
the name of each covered insured;
(iii) the policy number and the period of coverage;
(iv) the scope (including an indication of whether the coverage
was on a claims made, occurrence, or other basis) and amount
(including a description of how deductibles and ceilings are
calculated and operate) of coverage; and
(v) a description of any retroactive premium adjustments or
other loss-sharing arrangements.
With respect to each such insurance policy: (A) the policy is legal,
valid, binding, enforceable, and in full force and effect; (B) the policy
will continue to be legal, valid, binding, enforceable, and in full force
and effect on identical terms following the consummation of the
transactions contemplated hereby; (C) none of the Sellers are in breach or
default (including with respect to the payment of premiums or the giving
of notices), and no event has occurred which, with notice or the lapse of
time, would constitute such a breach or default, or permit termination,
modification, or acceleration, under the policy; and (D) no party to the
policy has repudiated any provision thereof. The Sellers have been
covered during the past 5 years by insurance in scope and amount customary
and reasonable for the businesses in which they have engaged during the
aforementioned period.
(s) Litigation. Neither of the Sellers are the Target (i) are
subject to any outstanding injunction, judgment, order, decree, ruling, or
charge or (ii) or is a party or is threatened to be made a party to any
action, suit, proceeding, hearing, or investigation of, in, or before any
court or quasi-judicial or administrative agency of any federal, state,
local, or foreign jurisdiction or before any arbitrator. None of the
Sellers and the directors and officers (and employees with responsibility
for litigation matters) of the Sellers have any reason to believe that any
such action, suit, proceeding, hearing, or investigation may be brought or
threatened against the Target.
(t) Product Warranty. Each product manufactured, sold, leased, or
delivered by any of the Sellers has been in conformity with all applicable
contractual commitments and all express and implied warranties, and the
Target has no Liability (and there is no Basis for any present or future
action, suit, proceeding, hearing, investigation, charge, complaint,
claim, or demand against the Target giving rise to any Liability) for
replacement or repair thereof or other damages in connection therewith,
subject only to the reserve for product warranty claims set forth on the
face of the Target Balance Sheet.
(u) Product Liability. The Target has no Liability (and there is no
Basis for any present or future action, suit, proceeding, hearing,
investigation, charge, complaint, claim, or demand against any of them
giving rise to any Liability) arising out of any injury to individuals or
property as a result of the ownership, possession, or use of any product
manufactured, sold, leased, or delivered by any of the Sellers or the
Target.
(v) Employees. The Target's employees and their current annual
compensation are listed in Schedule 4(v). The Target is not a party to or
bound by any collective bargaining agreement, nor has 0the Target
experienced any strikes, grievances, claims of unfair labor practices, or
other collective bargaining disputes. The Target has not committed any
unfair labor practice.
(w) Employee Benefits. The Target does not maintain any Employee
Benefit Plans, and is not required to provide any employee benefits to any
person, except as described in Schedule 4(w).
(x) Guaranties. Except for the lease described in Schedule
4(k)(ii), the Target is not a guarantor or otherwise is liable for any
Liability or obligation (including indebtedness) of any other Person.
(y) Environmental, Health, and Safety Matters.
(i) The Target, and its predecessors and the Sellers, have
complied and are in compliance with all Environmental, Health, and
Safety Requirements.
(ii) Without limiting the generality of the foregoing, the
Target and the Sellers have obtained and complied with, and are in
compliance with, all permits, licenses and other authorizations that
are required pursuant to applicable law for the occupation of its
facilities and the operation of its business.
(iii) Neither the Target, nor its predecessors nor the
Sellers has received any written or oral notice, report or other
information regarding any actual or alleged violation of
Environmental, Health, and Safety Requirements, or any liabilities or
potential liabilities (whether accrued, absolute, contingent,
unliquidated or otherwise), including any investigatory, remedial or
corrective obligations, relating to any of them or its facilities
arising under Environmental, Health, and Safety Requirements.
(iv) No facts, events or conditions relating to the past or
present facilities, properties or operations of the Target, or any of
its predecessors nor the Sellers will prevent, hinder or limit
continued compliance with Environmental, Health, and Safety
Requirements, give rise to any investigatory, remedial or corrective
obligations pursuant to Environmental, Health, and Safety
Requirements, or give rise to any other liabilities (whether accrued,
absolute, contingent, unliquidated or otherwise) pursuant to
Environmental, Health, and Safety Requirements, including without
limitation any relating to onsite or offsite releases or threatened
releases of hazardous materials, substances or wastes, personal
injury, property damage or natural resources damage.
(z) Certain Business Relationships with the Target. Sellers do not
own any asset, tangible or intangible, which is used in the business of
the Target. Pursuant to the Contribution Agreement, all assets of the
Sellers used in the business at the Target have been contributed to the
Target.
(aa) Disclosure. The representations and warranties contained in this
Section 4 do not contain any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements and
information contained in this Section 4 not misleading.
5. Pre-Closing Covenants. The Parties agree as follows with respect
to the period between the execution of this Agreement and the Closing.
(a) General. Each of the Parties will use his or its best efforts to
take all action and to do all things necessary, proper, or advisable in
order to consummate and make effective the transactions contemplated by
this Agreement (including satisfaction, but not waiver, of the closing
conditions set forth in Section 7 below).
(b) Notices and Consents. The Sellers will cause the Target to give
any notices to third parties, and will cause the Target to use its
reasonable best efforts to obtain any third party consents, that the Buyer
reasonably may request in connection with the matters referred to in
Section 4(c) above. Each of the Parties will (and the Sellers will cause
the Target to) give any notices to, make any filings with, and use their
reasonable best efforts to obtain any authorizations, consents, and
approvals of governments and governmental agencies in connection with the
matters referred to in Section 3(a)(ii), Section 3(b)(ii), and Section
4(c) above.
(c) Operation of Business. The Sellers will not cause or permit the
Target to engage in any practice, take any action, or enter into any
transaction outside the Ordinary Course of Business. Without limiting the
generality of the foregoing, the Sellers will not cause or permit the
Target to declare, set aside, or pay any dividend or make any distribution
with respect to its capital stock or redeem, purchase, or otherwise
acquire any of its capital stock.
(d) Preservation of Business. The Sellers will cause the Target to
keep its business and properties substantially intact, including its
present operations, physical facilities, working conditions, and
relationships with lessors, licensors, suppliers, customers, and
employees.
(e) Full Access. The Sellers will permit, and the Sellers will cause
the Target to permit, representatives of the Buyer to have full access at
all reasonable times, and in a manner so as not to interfere with the
normal business operations of the Target , to all premises, properties,
personnel, books, records (including Tax records), contracts, and
documents of or pertaining to the Target and the Sellers.
(f) Notice of Developments. The Sellers will give prompt written
notice to the Buyer of any material adverse development causing a breach
of any of the representations and warranties in Section 4 above. Each
Party will give prompt written notice to the others of any material
adverse development causing a breach of any of his or its own
representations and warranties in Section 3 above.
(g) Exclusivity. The Sellers will not (and the Sellers will not
cause or permit the Target to) (i) solicit, initiate, or encourage the
submission of any proposal or offer from any Person relating to the
acquisition of any capital stock or other voting securities, or any
substantial portion of the assets, of the Target (including any
acquisition structured as a merger, consolidation, or share exchange) or
(ii) participate in any discussions or negotiations regarding, furnish any
information with respect to, assist or participate in, or facilitate in
any other manner any effort or attempt by any Person to do or seek any of
the foregoing. The Sellers will notify the Buyer immediately if any
Person makes any proposal, offer, inquiry, or contact with respect to any
of the foregoing.
6. Post-Closing Covenants. The Parties agree as follows with
respect to the period following the Closing.
(a) General. In case at any time after the Closing any further
action is necessary or desirable to carry out the purposes of this
Agreement, each of the Parties will take such further action (including
the execution and delivery of such further instruments and documents) as
any other Party reasonably may request, all at the sole cost and expense
of the requesting Party (unless the requesting Party is entitled to
indemnification therefor under Section 8 hereof). The Sellers acknowledge
and agree that from and after the Closing the Buyer will be entitled to
possession of all documents, books, records (including Tax records),
agreements, and financial data of any sort relating to the Target and the
assets transferred to the Target by the Sellers, in possession of the
Sellers.
(b) Litigation Support. In the event and for so long as any Party
actively is contesting or defending against any action, suit, proceeding,
hearing, investigation, charge, complaint, claim, or demand in connection
with (i) any transaction contemplated under this Agreement or (ii) any
fact, situation, circumstance, status, condition, activity, practice,
plan, occurrence, event, incident, action, failure to act, or transaction
on or prior to the Closing Date involving the Target or the Sellers, each
of the other Parties will cooperate with him or it and his or its counsel
in the contest or defense, make available their personnel, and provide
such testimony and access to their books and records as shall be necessary
in connection with the contest or defense, all at the sole cost and
expense of the contesting or defending Party (unless the contesting or
defending Party is entitled to indemnification hereunder.
(c) Transition. The Sellers will not take any action that is
designed or intended to have the effect of discouraging any lessor,
licensor, customer, supplier, or other business associate of the Target
from maintaining the same business relationships with the Target after the
Closing as it maintained with the Sellers or the Target prior to the
Closing. The Sellers will refer all customer inquiries relating to the
businesses of the Target to the Target from and after the Closing.
(d) Confidentiality. The Sellers will treat and hold as such all of
the Confidential Information, refrain from using any of the Confidential
Information except in connection with this Agreement, and deliver promptly
to the Buyer or destroy, at the request and option of the Buyer, all
tangible embodiments (and all copies) of the Confidential Information
which are in their possession. In the event that the Sellers are requested
or required (by oral question or request for information or documents in
any legal proceeding, interrogatory, subpoena, civil investigative demand,
or similar process) to disclose any Confidential Information, Sellers will
notify the Buyer promptly of the request or requirement so that the Buyer
may seek an appropriate protective order or waive compliance with the
provisions of this Section 6(d). If, in the absence of a protective order
or the receipt of a waiver hereunder, the Sellers are, on the advice of
counsel, compelled to disclose any Confidential Information to any
tribunal or else stand liable for contempt, that Seller may disclose the
Confidential Information to the tribunal; provided, however, that Sellers
shall use their reasonable best efforts to obtain, at the request of the
Buyer, an order or other assurance that confidential treatment will be
accorded to such portion of the Confidential Information required to be
disclosed as the Buyer shall designate. The foregoing provisions shall not
apply to any Confidential Information which is generally available to the
public immediately prior to the time of disclosure.
7. Conditions to Obligation to Close.
(a) Conditions to Obligation of the Buyer. The obligation of the
Buyer to consummate the transactions to be performed by it in connection
with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section
3(a) and Section 4 above shall be true and correct in all material
respects at and as of the Closing Date;
(ii) the Sellers shall have performed and complied with all of
their covenants hereunder in all material respects through the
Closing;
(iii) the Target shall have procured all of the third party
consents specified in Section 5(b) above;
(iv) no action, suit, or proceeding shall be pending or
threatened before any court or quasi-judicial or administrative
agency of any federal, state, local, or foreign jurisdiction or
before any arbitrator wherein an unfavorable injunction, judgment,
order, decree, ruling, or charge would (A) prevent consummation of
any of the transactions contemplated by this Agreement, (B) cause any
of the transactions contemplated by this Agreement to be rescinded
following consummation, (C) affect adversely the right of the Buyer
to own the Target Shares and to control the Target, or (D) affect
adversely the right of the Target to own its assets and to operate
its businesses (and no such injunction, judgment, order, decree,
ruling, or charge shall be in effect);
(v) the Sellers shall have delivered to the Buyer a certificate
to the effect that each of the conditions specified above in Section
7(a)(i)-(iv) is satisfied in all respects;
(vi) the Target shall have received all authorizations,
consents, and approvals of governments and governmental agencies
referred to in Section 3(a)(ii), Section 3(b)(ii), and Section 4(c)
above;
(vii) the Buyer shall have received the resignations,
effective as of the Closing, of each director and officer of the
Target other than those whom the Buyer shall have specified in
writing at least 5 business days prior to the Closing;
(viii) all actions to be taken by the Sellers in connection
with consummation of the transactions contemplated hereby and all
certificates, opinions, instruments, and other documents required to
effect the transactions contemplated hereby will be reasonably
satisfactory in form and substance to the Buyer.
The Buyer may waive any condition specified in this Section 7(a) if it
executes a writing so stating at or prior to the Closing.
(b) Conditions to Obligation of the Sellers. The obligation of the
Sellers to consummate the transactions to be performed by them in
connection with the Closing are subject to satisfaction of the following
conditions:
(i) the representations and warranties set forth in Section
3(b) above shall be true and correct in all material respects at and
as of the Closing Date;
(ii) the Buyer shall have performed and complied with all of its
covenants hereunder in all material respects through the Closing;
(iii) no action, suit, or proceeding shall be pending or
threatened before any court or quasi-judicial or administrative
agency of any federal, state, local, or foreign jurisdiction or
before any arbitrator wherein an unfavorable injunction, judgment,
order, decree, ruling, or charge would (A) prevent consummation of
any of the transactions contemplated by this Agreement or (B) cause
any of the transactions contemplated by this Agreement to be
rescinded following consummation (and no such injunction, judgment,
order, decree, ruling, or charge shall be in effect);
(iv) the Buyer shall have delivered to the Seller a certificate
to the effect that each of the conditions specified above in Section
7(b)(i)-(iii) is satisfied in all respects;
(v) the Target shall have received all other authorizations,
consents, and approvals of governments and governmental agencies
referred to in Section 3(a)(ii), Section 3(b)(ii), and Section 4(c)
above; and
(vi) all actions to be taken by the Buyer in connection with
consummation of the transactions contemplated hereby and all
certificates, opinions, instruments, and other documents required to
effect the transactions contemplated hereby will be reasonably
satisfactory in form and substance to the Seller.
The Seller may waive any condition specified in this Section 7(b) if he
executes a writing so stating at or prior to the Closing.
8. Indemnification.
(a) Survival of Representations and Warranties. All of the
representations and warranties of the Parties contained in the Agreement
shall survive the Closing thereof (even if the damaged Party knew or had
reason to know of any misrepresentation or breach of warranty or covenant
at the time of Closing) and continue in full force and effect forever
thereafter (subject to any applicable statutes of limitations).
(b) Indemnification Provisions for Benefit of the Buyer. In
the event that any of the Sellers breach (or in the event any third party
alleges facts that, if true, would mean any of the Sellers has breached)
any of their representations, warranties, and covenants contained in the
Agreement and, provided that Buyer makes a written claim for
indemnification against XxXxxxx within such survival period, then the
Sellers each agree, jointly and severally, to indemnify Buyer from and
against the entirety of any Adverse Consequences Buyer may suffer through
and after the date of the claim for indemnification resulting from,
arising out of, relating to, in the nature of, or caused by the breach (or
the alleged breach).
(c) Indemnification Provisions for Benefit of the Sellers. In
the event Buyer breaches (or in the event any third party alleges facts
that, if true, would mean Buyer has breached) any of its representations,
warranties, and covenants contained herein, provided that XxXxxxx makes a
written claim for indemnification against Buyer within such survival
period, then Buyer agrees to indemnify the Sellers from and against the
entirety of any Adverse Consequences the Sellers may suffer through and
after the date of the claim for indemnification resulting from, arising
out of, relating to, in the nature of, or caused by the breach (or the
alleged breach).
(d) Matters Involving Third Parties.
(i) If any third party shall notify any Party (the
"Indemnified Party") with respect to any matter (a "Third Party Claim")
which may give rise to a claim for indemnification against any other Party
(the "Indemnifying Party") under this Section 8, then the Indemnified
Party shall promptly notify each Indemnifying Party thereof in writing;
provided, however, that no delay on the part of the Indemnified Party in
notifying any Indemnifying Party shall relieve the Indemnifying Party from
any obligation hereunder unless (and then solely to the extent) the
Indemnifying Party thereby is prejudiced.
(ii) Any Indemnifying Party will have the right to defend
the Indemnified Party against the Third Party Claim with counsel of its
choice reasonably satisfactory to the Indemnified Party so long as (A) the
Indemnifying Party notifies the Indemnified Party in writing within 15
days after the Indemnified Party has given notice of the Third Party Claim
that the Indemnifying Party will indemnify the Indemnified Party from and
against the entirety of any Adverse Consequences the Indemnified Party may
suffer resulting from, arising out of, relating to, in the nature of, or
caused by the Third Party Claim, (B) the Indemnifying Party provides the
Indemnified Party with evidence reasonably acceptable to the Indemnified
Party that the Indemnifying Party will have the financial resources to
defend against the Third Party Claim and fulfill its indemnification
obligations hereunder, (C) the Third Party Claim involves only money
damages and does not seek an injunction or other equitable relief, (D)
settlement of, or an adverse judgment with respect to, the Third Party
Claim is not, in the good faith judgment of the Indemnified Party, likely
to establish a precedential custom or practice materially adverse to the
continuing business interests of the Indemnified Party, and (E) the
Indemnifying Party conducts the defense of the Third Party Claim actively
and diligently.
(iii) So long as the Indemnifying Party is conducting
the defense of the Third Party Claim in accordance with Section 8(d)(ii)
above, (A) the Indemnified Party may retain separate co-counsel at its
sole cost and expense and participate in the defense of the Third Party
Claim, (B) the Indemnified Party will not consent to the entry of any
judgment or enter into any settlement with respect to the Third Party
Claim without the prior written consent of the Indemnifying Party (not to
be withheld unreasonably), and (C) the Indemnifying Party will not consent
to the entry of any judgment or enter into any settlement with respect to
the Third Party Claim without the prior written consent of the Indemnified
Party (not to be withheld unreasonably).
(iv) In the event any of the conditions in Section 8(d)(ii)
above is or becomes unsatisfied, however, (A) the Indemnified Party may
defend against, and consent to the entry of any judgment or enter into any
settlement with respect to, the Third Party Claim in any manner it
reasonably may deem appropriate (and the Indemnified Party need not
consult with, or obtain any consent from, any Indemnifying Party in
connection therewith), (B) the Indemnifying Parties will reimburse the
Indemnified Party promptly and periodically for the costs of defending
against the Third Party Claim (including reasonable attorneys' fees and
expenses), and (C) the Indemnifying Parties will remain responsible for
any Adverse Consequences the Indemnified Party may suffer resulting from,
arising out of, relating to, in the nature of, or caused by the Third
Party Claim to the fullest extent provided in this Section 9.
(e) Recovery Under Escrow. Buyer shall have the option of
recouping all or any part of any Adverse Consequences it may suffer (in
lieu of seeking any indemnification to which it is entitled under this
Section 8) by notifying XxXxxxx that Buyer is applying the Escrow Fund to
the Adverse Consequences against which Buyer is indemnified. The Parties
understand and agree that the Escrow Fund is not a limitation upon the
indemnification obligations of the Sellers.
(f) Other Indemnification Provisions. The foregoing
indemnification provisions are in addition to, and not in derogation of,
any statutory, equitable, or common law remedy any Party may have with
respect to the transactions contemplated by this Agreement.
9. Tax Matters. The following provisions shall govern the
allocation of responsibility as between Buyer and Sellers for certain tax
matters following the Closing Date:
(a) Tax Periods Beginning Before and Ending After the Closing Date.
Buyer shall prepare or cause to be prepared and file or cause to be filed
any Tax Returns of the Target for Tax periods which begin before the
Closing Date and end after the Closing Date. Sellers shall pay to Buyer
within fifteen (15) days after the date on which Taxes are paid with
respect to such periods an amount equal to the portion of such Taxes which
relates to the portion of such Taxable period ending on the Closing Date
to the extent such Taxes are not reflected in the reserve for Tax
Liability shown on the face of the Target Balance Sheet. For purposes of
this Section, in the case of any Taxes that are imposed on a periodic
basis and are payable for a Taxable period that includes (but does not end
on) the Closing Date, the portion of such Tax which relates to the portion
of such Taxable period ending on the Closing Date shall (x) in the case of
any Taxes other than Taxes based upon or related to income or receipts, be
deemed to be the amount of such Tax for the entire Taxable period
multiplied by a fraction the numerator of which is the number of days in
the Taxable period ending on the Closing Date and the denominator of which
is the number of days in the entire Taxable period, and (y) in the case of
any Tax based upon or related to income or receipts be deemed equal to the
amount which would be payable if the relevant Taxable period ended on the
Closing Date. Any credits relating to a Taxable period that begins before
and ends after the Closing Date shall be taken into account as though the
relevant Taxable period ended on the Closing Date. All determinations
necessary to give effect to the foregoing allocations shall be made in a
manner consistent with prior practice of the Target .
(b) Cooperation on Tax Matters.
(i) Buyer, the Target and Sellers shall cooperate fully, as and
to the extent reasonably requested by the other party, in connection
with the filing of Tax Returns pursuant to this Section and any
audit, litigation or other proceeding with respect to Taxes. Such
cooperation shall include the retention and (upon the other party's
request) the provision of records and information which are
reasonably relevant to any such audit, litigation or other proceeding
and making employees available on a mutually convenient basis to
provide additional information and explanation of any material
provided hereunder. The Target and Sellers agree (A) to retain all
books and records with respect to Tax matters pertinent to the Target
relating to any taxable period beginning before the Closing Date
until the expiration of the statute of limitations (and, to the
extent notified by Buyer or Sellers, any extensions thereof) of the
respective taxable periods, and to abide by all record retention
agreements entered into with any taxing authority, and (B) to give
the other party reasonable written notice prior to transferring,
destroying or discarding any such books and records and, if the other
party so requests, the Target or Sellers, as the case may be, shall
allow the other party to take possession of such books and records.
(ii) Buyer and Seller further agree, upon request, to use their
best efforts to obtain any certificate or other document from any
governmental authority or any other Person as may be necessary to
mitigate, reduce or eliminate any Tax that could be imposed
(including, but not limited to, with respect to the transactions
contemplated hereby).
(c) Tax Sharing Agreements. All tax sharing agreements or similar
agreements with respect to or involving the Target shall be terminated as
of the Closing Date and, after the Closing Date, the Target shall not be
bound thereby or have any liability thereunder.
(d) Certain Taxes. All transfer, documentary, sales, use, stamp,
registration, value added, and other such Taxes and fees (including any
penalties and interest) incurred in connection with this Agreement shall
be paid by Sellers when due, and Sellers will, at their own expense, file
all necessary Tax Returns and other documentation with respect to all such
transfer, documentary, sales, use, stamp, registration, value added, and
other Taxes and fees, and, if required by applicable law, Buyer will, and
will cause its affiliates to, join in the execution of any such Tax
Returns and other documentation.
10. Miscellaneous.
(a) Press Releases and Public Announcements. Neither the Sellers nor
the Target shall issue any press release or make any public announcement
relating to the subject matter of this Agreement prior to the Closing
without the prior written approval of the Buyer. The Buyer may make any
public disclosure it believes in good faith is required by applicable law
or any listing or trading agreement concerning its publicly-traded
securities (in which case the Buyer will use its reasonable best efforts
to advise the other Parties prior to making the disclosure).
(b) No Third-Party Beneficiaries. This Agreement shall not confer
any rights or remedies upon any Person other than the Parties and their
respective successors and permitted assigns.
(c) Entire Agreement. This Agreement (including the documents
referred to therein) constitutes the entire agreement among the Parties
and supersedes any prior understandings, agreements, or representations by
or among the Parties, written or oral, to the extent they related in any
way to the subject matter hereof.
(d) Succession and Assignment. This Agreement shall be binding upon
and inure to the benefit of the Parties named herein and their respective
successors and permitted assigns. No Party may assign either this
Agreement or any of his or its rights, interests, or obligations hereunder
without the prior written approval of the Buyer and the Seller; provided,
however, that the Buyer may (i) assign any or all of its rights and
interests hereunder to one or more of its Affiliates and (ii) designate
one or more of its Affiliates to perform its obligations hereunder (in any
or all of which cases the Buyer nonetheless shall remain responsible for
the performance of all of its obligations hereunder).
(e) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
(f) Headings. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning
or interpretation of this Agreement.
(g) Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly given if (and
then three business days after) it is sent by registered or certified
mail, return receipt requested, postage prepaid, and addressed to the
intended recipient as set forth below:
If to the Sellers:
Mr. Xxxxxxx XxXxxxx
Xxxx 00
Xxxxxxxxx Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxx
Xxxxxxxxx XX0 0XX U.K.
If to the Buyer:
Xxxxx Enterprises, Incorporated
000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxxx, XX 00000
Attn: Xxxx X. Xxxxxx, Esquire
With a copy to:
Xxxxx & Lardner
000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Esquire
Any Party may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the address set forth
above using any other means (including personal delivery, expedited
courier, messenger service, telecopy, telex, ordinary mail, or electronic
mail), but no such notice, request, demand, claim, or other communication
shall be deemed to have been duly given unless and until it actually is
received by the intended recipient. Any Party may change the address to
which notices, requests, demands, claims, and other communications
hereunder are to be delivered by giving the other Parties notice in the
manner herein set forth.
(h) Governing Law. This Agreement shall be governed by and construed
in accordance with the domestic laws of Florida without giving effect to
any choice or conflict of law provision or rule (whether of Florida or any
other jurisdiction) that would cause the application of the laws of any
jurisdiction other than Florida.
(i) Amendments and Waivers. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by
the Buyer and the Seller. No waiver by any Party of any default,
misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent
such occurrence.
(j) Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and
provisions hereof or the validity or enforceability of the offending term
or provision in any other situation or in any other jurisdiction.
(k) Expenses. Each of the Parties and the Sellers will bear his or
its own costs and expenses (including legal fees and expenses) incurred in
connection with this Agreement and the transactions contemplated hereby.
The Sellers agree that the Target has not and will not bear any of the
Sellers' costs and expenses (including any of their legal fees and
expenses) in connection with this Agreement or any of the transactions
contemplated hereby.
(l) Construction. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be
construed as if drafted jointly by the Parties and no presumption or
burden of proof shall arise favoring or disfavoring any Party by virtue of
the authorship of any of the provisions of this Agreement. Any reference
to any federal, state, local, or foreign statute or law shall be deemed
also to refer to all rules and regulations promulgated thereunder, unless
the context requires otherwise. The word "including" shall mean including
without limitation. The Parties intend that each representation, warranty,
and covenant contained herein shall have independent significance. If any
Party has breached any representation, warranty, or covenant contained
herein in any respect, the fact that there exists another representation,
warranty, or covenant relating to the same subject matter (regardless of
the relative levels of specificity) which the Party has not breached shall
not detract from or mitigate the fact that the Party is in breach of the
first representation, warranty, or covenant.
(m) Incorporation of Exhibits, Annexes, and Schedules. The Exhibits,
Annexes, and Schedules identified in this Agreement are incorporated
herein by reference and made a part hereof.
(n) Specific Performance. Each of the Parties acknowledges and
agrees that the other Parties would be damaged irreparably in the event
any of the provisions of this Agreement are not performed in accordance
with their specific terms or otherwise are breached. Accordingly, each of
the Parties agrees that the other Parties shall be entitled to an
injunction or injunctions to prevent breaches of the provisions of this
Agreement and to enforce specifically this Agreement and the terms and
provisions hereof in any action instituted in any court of the United
States or any state thereof having jurisdiction over the Parties and the
matter (subject to the provisions set forth in Section 9(o) below), in
addition to any other remedy to which they may be entitled, at law or in
equity.
(o) Submission to Jurisdiction. Each of the Parties submits to the
jurisdiction of any state or federal court sitting in Tampa, Florida,
United States of America in any action or proceeding arising out of or
relating to this Agreement and agrees that all claims in respect of the
action or proceeding may be heard and determined in any such court. Each
Party also agrees not to bring any action or proceeding arising out of or
relating to this Agreement in any other court. Each of the Parties waives
any defense of inconvenient forum to the maintenance of any action or
proceeding so brought and waives any bond, surety, or other security that
might be required of any other Party with respect thereto. Each Party
agrees that a final judgment in any action or proceeding so brought shall
be conclusive and may be enforced by suit on the judgment or in any other
manner provided by law or at equity.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement
on as of the date and year first above written.
Witnesses:
_____________________ _______________________________
XXXXXXX XXXXXXX, individually
_____________________
("XxXxxxx")
CYCLE, B.V.B.A., a corporation
organized under the laws of Belgium
_____________________ By:______________________
_____________________ ("Cycle")
SYKES HOLDINGS OF BELGIUM, B.V.B.A.
a corporation organized
under the laws of Belgium
_____________________ By:______________________
_____________________ ("Buyer")
ASSET PURCHASE AGREEMENT
BETWEEN
TRANSLATION, FULFILMENT & COMMUNICATION, N.V.
AND
INTERACTIVE DATA SOLUTIONS, LTD.
MARCH _____, 1997
TABLE OF CONTENTS
Page
1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Basic Transaction . . . . . . . . . . . . . . . . . . . . . . . 3
(a) Purchase and Sale of Assets . . . . . . . . . . . . . . . . 3
(b) Assumption of Liabilities . . . . . . . . . . . . . . . . . 3
(c) Purchase Price . . . . . . . . . . . . . . . . . . . . . . 4
(d) The Closing . . . . . . . . . . . . . . . . . . . . . . . . 4
(e) Allocation . . . . . . . . . . . . . . . . . . . . . . . . 4
3. Representations and Warranties of the Target . . . . . . . . . . 4
(a) Organization of the Target . . . . . . . . . . . . . . . . 4
(b) Authorization of Transaction . . . . . . . . . . . . . . . 4
(c) Noncontravention . . . . . . . . . . . . . . . . . . . . . 4
(d) Brokers' Fees . . . . . . . . . . . . . . . . . . . . . . . 5
(e) Title to Assets . . . . . . . . . . . . . . . . . . . . . . 5
(f) Undisclosed Liabilities . . . . . . . . . . . . . . . . . . 5
(g) Legal Compliance . . . . . . . . . . . . . . . . . . . . . 5
(h) Real Property . . . . . . . . . . . . . . . . . . . . . . . 5
(i) Condition of Assets . . . . . . . . . . . . . . . . . . . . 6
(j) Inventory . . . . . . . . . . . . . . . . . . . . . . . . . 6
(k) Litigation . . . . . . . . . . . . . . . . . . . . . . . . 6
(l) Employees . . . . . . . . . . . . . . . . . . . . . . . . . 7
(m) Employee Benefits . . . . . . . . . . . . . . . . . . . . . 7
(n) Guaranties . . . . . . . . . . . . . . . . . . . . . . . . 7
(o) Environmental, Health, and Safety Matters . . . . . . . . . 7
(p) Disclosure . . . . . . . . . . . . . . . . . . . . . . . . 8
4. Representations and Warranties of the Buyer . . . . . . . . . . 8
(a) Organization of the Buyer . . . . . . . . . . . . . . . . . 8
(b) Authorization of Transaction . . . . . . . . . . . . . . . 8
(c) Noncontravention . . . . . . . . . . . . . . . . . . . . . 8
(d) Brokers' Fees . . . . . . . . . . . . . . . . . . . . . . . 8
5. Pre-Closing Covenants . . . . . . . . . . . . . . . . . . . . . 8
(a) General . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(b) Notices and Consents . . . . . . . . . . . . . . . . . . . 9
(c) Preservation of Business . . . . . . . . . . . . . . . . . 9
(d) Full Access . . . . . . . . . . . . . . . . . . . . . . . . 9
(e) Notice of Developments . . . . . . . . . . . . . . . . . . 9
6. Conditions to Obligation to Close . . . . . . . . . . . . . . . 9
(a) Conditions to Obligation of the Buyer . . . . . . . . . . . 9
(b) Conditions to Obligation of the Target . . . . . . . . . . 10
7. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . 11
(a) Survival of Representations and Warranties . . . . . . . . 11
(b) Indemnification Provisions for Benefit of the Buyer . . . . 11
(c) Indemnification Provisions for Benefit of the Sellers . . . 11
(d) Matters Involving Third Parties . . . . . . . . . . . . . . 11
(e) Other Indemnification Provisions . . . . . . . . . . . . . 12
8. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . 13
(a) Survival of Representations and Warranties . . . . . . . . 13
(b) Press Releases and Public Announcements . . . . . . . . . . 13
(c) No Third-Party Beneficiaries . . . . . . . . . . . . . . . 13
(d) Entire Agreement . . . . . . . . . . . . . . . . . . . . . 13
(e) Succession and Assignment . . . . . . . . . . . . . . . . . 13
(f) Counterparts . . . . . . . . . . . . . . . . . . . . . . . 13
(g) Headings . . . . . . . . . . . . . . . . . . . . . . . . . 13
(h) Notices . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(i) Governing Law . . . . . . . . . . . . . . . . . . . . . . . 14
(j) Amendments and Waivers . . . . . . . . . . . . . . . . . . 14
(k) Severability . . . . . . . . . . . . . . . . . . . . . . . 15
(l) Expenses . . . . . . . . . . . . . . . . . . . . . . . . . 15
(m) Construction . . . . . . . . . . . . . . . . . . . . . . . 15
(n) Incorporation of Exhibits and Schedules . . . . . . . . . . 16
(o) Specific Performance . . . . . . . . . . . . . . . . . . . 16
(p) Submission to Jurisdiction . . . . . . . . . . . . . . . . 16
SCHEDULES AND EXHIBITS
Schedule 1.1(a) Equipment
Schedule 1.1(b) Inventory
Schedule 1.1(c) Leases
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this "Agreement") is entered into on
March 28, 1997 effective as of January 1, 1997 (the "Effective Date"), by
and between TRANSLATION, FULFILMENT & COMMUNICATION, N.V., a corporation
organized under the laws of Belgium (the "Buyer"), XXXXXXX XXXXXXX (the
"Shareholder"), and INTERACTIVE DATA SOLUTIONS, LTD., a corporation
organized under the laws of the United Kingdom, (the "Target"). The Buyer,
the Shareholder and the Target are referred to collectively herein as the
"Parties."
RECITALS
A. The Shareholder is the holder of all of the stock of the Target.
B. The Target is the owner of certain assets heretofore used in its
business of providing software support services by the Buyer.
C. The Buyer desires to purchase, and the Target desires to sell,
certain assets of the Target for the consideration herein described.
Now, therefore, in consideration of the premises and the mutual
promises herein made, and in consideration of the representations,
warranties, and covenants herein contained, the Parties agree as follows.
1. Definitions.
"Acquired Assets" means all right, title, and interest in and to all
of the assets of the Target, including all of its (a) tangible personal
property (such as machinery, equipment, inventories of raw materials and
supplies, manufactured and purchased parts, goods in process and finished
goods, furniture, automobiles, trucks, tractors, trailers, tools, jigs,
and dies), all as described in Schedule 1.1(a) and (b) inventory, as
described in Schedule 1.1(b) and (c) leases, subleases, and rights, all as
described in Schedule 1.1(c); provided, however, that the Acquired Assets
shall not include (x) cash, (y) the corporate charter, qualifications to
conduct business as a foreign corporation, arrangements with registered
agents relating to foreign qualifications, taxpayer and other
identification numbers, seals, minute books, stock transfer books, blank
stock certificates, and other documents relating to the organization,
maintenance, and existence of the Target as a corporation or (z) any of
the rights of the Target under this Agreement (or under any side agreement
between the Target on the one hand and the Buyer on the other hand entered
into on or after the date of this Agreement).
"Assumed Liabilities" means and shall be limited to all obligations
of the Target under the agreements, contracts, leases, licenses, and other
arrangements referred to in the definition of Acquired Assets either (i)
to furnish goods, services, and other non-Cash benefits to another party
after the Closing or (ii) to pay for goods, services, and other non-Cash
benefits that another party will furnish to it from and after the Closing.
"Basis" means any past or present fact, situation, circumstance,
status, condition, activity, practice, plan, occurrence, event, incident,
action, failure to act, or transaction that forms or could form the basis
for any specified consequence.
"Buyer" has the meaning set forth in the preface above.
"Cash" means cash and cash equivalents (including marketable
securities and short term investments) calculated in accordance with GAAP
applied on a basis consistent with the preparation of the Financial
Statements.
"Closing Date" shall be the date on which the transactions herein
contemplated are closed.
"Code" means the United States Internal Revenue Code of 1986, as
amended.
"Disclosure Schedule" has the meaning set forth in Section 3 below.
"Employee Benefit Plan" means any deferred compensation or retirement
plan or arrangement or vacation, sick leave, insurance, medical benefits,
or other plan provided by the Target for the benefit of its employees,
whether or not provided pursuant to the requirements of or subject to the
approval of any governmental entity.
"Environmental, Health, and Safety Requirements" shall mean all
United State or foreign, federal, state, local statutes, regulations,
ordinances and other provisions having the force or effect of law, all
judicial and administrative orders and determinations, all contractual
obligations and all common law concerning public health and safety, worker
health and safety, and pollution or protection of the environment,
including without limitation all those relating to the presence, use,
production, generation, handling, transportation, treatment, storage,
disposal, distribution, labeling, testing, processing, discharge, release,
threatened release, control, or cleanup of any hazardous materials,
substances or wastes, chemical substances or mixtures, pesticides,
pollutants, contaminants, toxic chemicals, petroleum products or
byproducts, asbestos, polychlorinated biphenyls, noise or radiation, each
as amended and as now or hereafter in effect.
"GAAP" means United States generally accepted accounting principles
as in effect from time to time.
"Knowledge" means actual knowledge after reasonable investigation.
"Liability" means any liability (whether known or unknown, whether
asserted or unasserted, whether absolute or contingent, whether accrued or
unaccrued, whether liquidated or unliquidated, and whether due or to
become due), including any liability for Taxes.
"Ordinary Course of Business" means the ordinary course of business
consistent with past custom and practice (including with respect to
quantity and frequency).
"Party" has the meaning set forth in the preface above.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an
unincorporated organization, or a governmental entity (or any department,
agency, or political subdivision thereof).
"Purchase Price" has the meaning set forth in Section 2(c) below.
"Security Interest" means any mortgage, pledge, lien, encumbrance,
charge, or other security interest, other than (a) mechanic's,
materialmen's, and similar liens, (b) liens for Taxes not yet due and
payable or for Taxes that the taxpayer is contesting in good faith through
appropriate proceedings, (c) purchase money liens and liens securing
rental payments under capital lease arrangements, and (d) other liens
arising in the Ordinary Course of Business and not incurred in connection
with the borrowing of money.
"Subsidiary" means any corporation with respect to which a specified
Person (or a Subsidiary thereof) owns a majority of the common stock or
has the power to vote or direct the voting of sufficient securities to
elect a majority of the directors.
"Target" has the meaning set forth in the preface above.
"Tax" means any United States or foreign federal, state, local,
income, gross receipts, license, payroll, employment, excise, severance,
stamp, occupation, premium, windfall profits, environmental, customs
duties, capital stock, franchise, profits, withholding, social security
(or similar), unemployment, disability, real property, personal property,
sales, use, transfer, registration, value added, alternative or add-on
minimum, estimated, or other tax of any kind whatsoever, including any
interest, penalty, or addition thereto, whether disputed or not.
"Tax Return" means any return, declaration, report, claim for refund,
or information return or statement relating to Taxes, including any
schedule or attachment thereto, and including any amendment thereof.
2. Basic Transaction.
(a) Purchase and Sale of Assets. On and subject to the terms
and conditions of this Agreement, the Buyer agrees to purchase from the
Target, and the Target agrees to sell, transfer, convey, and deliver to
the Buyer, all of the Acquired Assets at the Closing for the consideration
specified below in this Section 2.
(b) Assumption of Liabilities. On and subject to the terms and
conditions of this Agreement, the Buyer agrees to assume and become
responsible for all of the Assumed Liabilities at the Closing. The Buyer
will not assume or have any responsibility, however, with respect to any
obligation or Liability of the Target not included within the definition
of Assumed Liabilities.
(c) Purchase Price. The Buyer agrees to pay to the Target at
the Closing U.S. $180,000 (the "Purchase Price") by delivery of payable
by wire transfer or delivery of other immediately available funds of the
sum of U.S. $180,000.
(d) The Closing. The closing of the transactions contemplated
by this Agreement (the "Closing") shall take place on March 28, 1997 at
the offices of Xxxxx & Xxxxxxx in Brussels, Belgium, or at such other
place and time as the parties may mutually determine.
(e) Allocation. The Parties agree to allocate the Purchase
Price (and all other capitalizable costs) among the Acquired Assets for
all purposes (including financial accounting and tax purposes) in
accordance with the relative book values, as indicated on Schedule 1.1.
3. Representations and Warranties of the Target. The Target and
the Shareholder represent and warrant to the Buyer that the statements
contained in this Section 3 are correct and complete as of the date of
this Agreement and will be correct and complete as of the Closing Date (as
though made then and as though the Closing Date were substituted for the
date of this Agreement throughout this Section 3).
(a) Organization of the Target. The Target is a corporation
duly organized, validly existing, and in good standing under the laws of
the jurisdiction of its incorporation.
(b) Authorization of Transaction. The Target has full power
and authority (including full corporate power and authority) to execute
and deliver this Agreement and to perform its obligations hereunder.
Without limiting the generality of the foregoing, the board of directors
of the Target and the Shareholder have duly authorized the execution,
delivery, and performance of this Agreement by the Target. This Agreement
constitutes the valid and legally binding obligation of the Target,
enforceable in accordance with its terms and conditions.
(c) Noncontravention. Neither the execution and the delivery
of this Agreement, nor the consummation of the transactions contemplated
hereby, will (i) violate any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other restriction
of any government, governmental agency, or court to which the Target is
subject or any provision of the charter or bylaws of the Target or (ii)
conflict with, result in a breach of, constitute a default under, result
in the acceleration of, create in any party the right to accelerate,
terminate, modify, or cancel, or require any notice under any agreement,
contract, lease, license, instrument, or other arrangement to which the
Target is a party or by which it is bound or to which any of its assets is
subject (or result in the imposition of any Security Interest upon any of
its assets). The Target is not required to give any notice to, make any
filing with, or obtain any authorization, consent, or approval of any
government or governmental agency in order for the Parties to consummate
the transactions contemplated by this Agreement (including the assignments
and assumptions referred to in Section 2 above).
(d) Brokers' Fees. Neither the Target nor the Shareholder has
any Liability or obligation to pay any fees or commissions to any broker,
finder, or agent with respect to the transactions contemplated by this
Agreement for which the Buyer could become liable or obligated.
(e) Title to Assets. The Target has good and marketable title
to, or a valid leasehold interest in all of the Acquired Assets.
(f) Undisclosed Liabilities. The Target has no liability (and
there is no Basis for any present or future action, suit, proceeding,
hearing, investigation, charge, complaint, claim, or demand against any of
them giving rise to any Liability) to which the Acquired Assets are or may
become subject.
(g) Legal Compliance. Each of the Target and its predecessors
have complied with all applicable laws (including rules, regulations,
codes, plans, injunctions, judgments, orders, decrees, rulings, and
charges thereunder) of federal, state, local, and foreign governments (and
all agencies thereof), and no action, suit, proceeding, hearing,
investigation, charge, complaint, claim, demand, or notice has been filed
or commenced against any of them alleging any failure so to comply.
(h) Real Property. Schedule 1.1(c) lists and describes briefly
all real property leased or subleased to any of the Target. The Target
has delivered to the Buyer correct and complete copies of the leases and
subleases listed in Schedule 1.1(c) (as amended to date). With respect to
each lease and sublease listed in Schedule 1.1(c):
(A) the lease or sublease is legal, valid, binding,
enforceable, and in full force and effect;
(B) the lease or sublease will continue to be legal,
valid, binding, enforceable, and in full force and effect on
identical terms following the consummation of the transactions
contemplated hereby;
(C) no party to the lease or sublease is in breach or
default, and no event has occurred which, with notice or lapse
of time, would constitute a breach or default or permit
termination, modification, or acceleration thereunder;
(D) no party to the lease or sublease has repudiated
any provision thereof;
(E) there are no disputes, oral agreements, or
forbearance programs in effect as to the lease or sublease;
(F) with respect to each sublease, the
representations and warranties set forth in subsections (A)
through (E) above are true and correct with respect to the
underlying lease;
(G) the Target has not assigned, transferred,
conveyed, mortgaged, deeded in trust, or encumbered any interest
in the leasehold or subleasehold;
(H) all facilities leased or subleased thereunder
have received all approvals of governmental authorities
(including licenses and permits) required in connection with the
operation thereof and have been operated and maintained in
accordance with applicable laws, rules, and regulations;
(I) all facilities leased or subleased thereunder are
supplied with utilities and other services necessary for the
operation of said facilities; and
(J) the owner of the facility leased or subleased has
good and marketable title to the parcel of real property, free
and clear of any Security Interest, easement, covenant, or other
restriction, except for installments of special easements not
yet delinquent and recorded easements, covenants, and other
restrictions which do not impair the current use, occupancy, or
value, or the marketability of title, of the property subject
thereto.
(i) Condition of Assets. The Acquired Assets constitute all
machinery, equipment, and other tangible assets necessary for the conduct
of the businesses of Traffic as presently conducted and as presently
proposed to be conducted. Each such tangible asset is free from defects
(patent and latent), has been maintained in accordance with normal
industry practice, is in good operating condition and repair (subject to
normal wear and tear), and is suitable for the purposes for which it
presently is used and presently is proposed to be used.
(j) Inventory. The inventory of the Target consists of raw
materials and supplies, manufactured and purchased parts, goods in
process, and finished goods, all of which is merchantable and fit for the
purpose for which it was procured or manufactured, and none of which is
slow-moving, obsolete, damaged, or defective.
(k) Litigation. The Target is not subject to any outstanding
injunction, judgment, order, decree, ruling, or charge or (ii) is not a
party or, to the Knowledge of any of the Shareholder and the directors and
officers (and employees with responsibility for litigation matters) of the
Target, is threatened to be made a party to any action, suit, proceeding,
hearing, or investigation of, in, or before any court or quasi-judicial or
administrative agency of any federal, state, local, or foreign
jurisdiction or before any arbitrator. None of the Shareholder and the
directors and officers (and employees with responsibility for litigation
matters) of the Target has any reason to believe that any such action,
suit, proceeding, hearing, or investigation may be brought or threatened
against any of the Target.
(l) Employees. The Target has no employees. The Target is not
a party to or bound by any collective bargaining agreement, nor has the
Target experienced any strikes, grievances, claims of unfair labor
practices, or other collective bargaining disputes. The Target has not
committed any unfair labor practice. The Shareholder and the directors
and officers (and employees with responsibility for employment matters) of
the Target has no Knowledge of any organizational effort presently being
made or threatened by or on behalf of any labor union with respect to
employees of the Target.
(m) Employee Benefits. The Target has no Employee Benefit
Plans.
(n) Guaranties. The Target is not a guarantor nor otherwise is
liable for any Liability or obligation (including indebtedness) of any
other Person.
(o) Environmental, Health, and Safety Matters.
(i) The Target and its predecessors have complied and are
in compliance with all Environmental, Health, and Safety
Requirements.
(ii) Without limiting the generality of the foregoing, the
Target Affiliates has obtained and complied with, and is in
compliance with, all permits, licenses and other authorizations that
are required pursuant to Environmental, Health, and Safety
Requirements for the occupation of its facilities and the operation
of its business.
(iii) Neither the Target nor its predecessors has
received any written or oral notice, report or other information
regarding any actual or alleged violation of Environmental, Health,
and Safety Requirements, or any liabilities or potential liabilities
(whether accrued, absolute, contingent, unliquidated or otherwise),
including any investigatory, remedial or corrective obligations,
relating to any of them or its facilities arising under
Environmental, Health, and Safety Requirements.
(iv) Neither the Target nor its predecessors has treated,
stored, disposed of, arranged for or permitted the disposal of,
transported, handled, or released any substance, including without
limitation any hazardous substance, or owned or operated any property
or facility (and no such property or facility is contaminated by any
such substance) in a manner that has given or would give rise to
liabilities, including any liability for response costs, corrective
action costs, personal injury, property damage, natural resources
damages or attorney fees, pursuant to any Environmental, Health, and
Safety Requirements.
(v) No facts, events or conditions relating to the past or
present facilities, properties or operations of the Target or any of
its predecessors will prevent, hinder or limit continued compliance
with Environmental, Health, and Safety Requirements, give rise to any
investigatory, remedial or corrective obligations pursuant to
Environmental, Health, and Safety Requirements, or give rise to any
other liabilities (whether accrued, absolute, contingent,
unliquidated or otherwise) pursuant to Environmental, Health, and
Safety Requirements, including without limitation any relating to
onsite or offsite releases or threatened releases of hazardous
materials, substances or wastes, personal injury, property damage or
natural resources damage.
(p) Disclosure. The representations and warranties contained
in this Section 3 do not contain any untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements and information contained in this Section 3 not misleading.
4. Representations and Warranties of the Buyer. The Buyer
represents and warrants to the Target that the statements contained in
this Section 4 are correct and complete as of the date of this Agreement
and will be correct and complete as of the Closing Date (as though made
then and as though the Closing Date were substituted for the date of this
Agreement throughout this Section 4).
(a) Organization of the Buyer. The Buyer is a corporation duly
organized, validly existing, and in good standing under the laws of the
jurisdiction of its incorporation.
(b) Authorization of Transaction. The Buyer has full power and
authority (including full corporate power and authority) to execute and
deliver this Agreement and to perform its obligations hereunder. This
Agreement constitutes the valid and legally binding obligation of the
Buyer, enforceable in accordance with its terms and conditions.
(c) Noncontravention. Neither the execution and the delivery
of this Agreement, nor the consummation of the transactions contemplated
hereby (including the assignments and assumptions referred to in Section 2
above), will (i) violate any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other restriction
of any government, governmental agency, or court to which the Buyer is
subject or any provision of its charter or bylaws or (ii) conflict with,
result in a breach of, constitute a default under, result in the
acceleration of, create in any party the right to accelerate, terminate,
modify, or cancel, or require any notice under any agreement, contract,
lease, license, instrument, or other arrangement to which the Buyer is a
party or by which it is bound or to which any of its assets is subject.
The Buyer does not need to give any notice to, make any filing with, or
obtain any authorization, consent, or approval of any government or
governmental agency in order for the Parties to consummate the
transactions contemplated by this Agreement.
(d) Brokers' Fees. The Buyer has no Liability or obligation to
pay any fees or commissions to any broker, finder, or agent with respect
to the transactions contemplated by this Agreement for which the Target
could become liable or obligated.
5. Pre-Closing Covenants. The Parties agree as follows with
respect to the period between the execution of this Agreement and the
Closing.
(a) General. Each of the Parties will use its reasonable best
efforts to take all action and to do all things necessary, proper, or
advisable in order to consummate and make effective the transactions
contemplated by this Agreement (including satisfaction, but not waiver, of
the closing conditions set forth in Section 6 below).
(b) Notices and Consents. The Target will give any notices to
third parties, and the Target will use its best efforts to obtain any
third party consents, that the Buyer may request in connection with the
matters referred to in Section 3(c) above. Each of the Parties will give
any notices to, make any filings with, and use its best efforts to obtain
any authorizations, consents, and approvals of governments and
governmental agencies in connection with the matters referred to in
Section 3(c) and Section 4(c) above.
(c) Preservation of Business. The Target will keep its
business and properties substantially intact, including its present
operations, physical facilities, working conditions, and relationships
with lessors, licensors, suppliers, customers, and employees.
(d) Full Access. The Target will permit representatives of the
Buyer to have full access at all reasonable times, and in a manner so as
not to interfere with the normal business operations of the Target and its
Subsidiaries, to all premises, properties, personnel, books, records
(including Tax records), contracts, and documents of or pertaining to each
of the Target.
(e) Notice of Developments. Each Party will give prompt
written notice to the other Party of any material adverse development
causing a breach of any of its own representations and warranties in
Section 3 and Section 4 above. No disclosure by any Party pursuant to this
Section 5(e), however, shall be deemed to amend or supplement the
Disclosure Schedule or to prevent or cure any misrepresentation, breach of
warranty, or breach of covenant.
6. Conditions to Obligation to Close.
(a) Conditions to Obligation of the Buyer. The obligation of
the Buyer to consummate the transactions to be performed by it in
connection with the Closing is subject to satisfaction of the following
conditions:
(i) all of the capital stock of the Buyer shall have been
acquired by an Affiliate of Xxxxx Enterprises Incorporated;
(ii) the representations and warranties set forth in
Section 3 above shall be true and correct in all material respects at
and as of the Closing Date;
(iii) the Target shall have performed and complied with
all of its covenants hereunder in all material respects through the
Closing;
(iv) the Target shall have procured all of the third party
consents specified in Section 5(b) above;
(v) no action, suit, or proceeding shall be pending or
threatened before any court or quasi-judicial or administrative
agency of any federal, state, local, or foreign jurisdiction or
before any arbitrator wherein an unfavorable injunction, judgment,
order, decree, ruling, or charge would (A) prevent consummation of
any of the transactions contemplated by this Agreement, (B) cause any
of the transactions contemplated by this Agreement to be rescinded
following consummation, (C) affect adversely the right of the Buyer
to own the Acquired Assets, to operate the former businesses of the
Target, or (D) affect adversely the right of the Target to own its
assets and to operate its businesses (and no such injunction,
judgment, order, decree, ruling, or charge shall be in effect);
(vi) the Target shall have delivered to the Buyer a
certificate to the effect that each of the conditions specified above
in Section 6(a)(i)-(iv) is satisfied in all respects;
(vii) the Target and the Buyer shall have received all
authorizations, consents, and approvals of governments and
governmental agencies referred to in Section 3(c) and Section 4(c)
above; and
(viii) all actions to be taken by the Target in
connection with consummation of the transactions contemplated hereby
and all certificates, opinions, instruments, and other documents
required to effect the transactions contemplated hereby will be
reasonably satisfactory in form and substance to the Buyer.
The Buyer may waive any condition specified in this Section 6(a) if it
executes a writing so stating at or prior to the Closing.
(b) Conditions to Obligation of the Target. The obligation of
the Target to consummate the transactions to be performed by it in
connection with the Closing is subject to satisfaction of the following
conditions:
(i) the representations and warranties set forth in
Section 4 above shall be true and correct in all material respects at
and as of the Closing Date;
(ii) the Buyer shall have performed and complied with all
of its covenants hereunder in all material respects through the
Closing;
(iii) no action, suit, or proceeding shall be pending
or threatened before any court or quasi-judicial or administrative
agency of any federal, state, local, or foreign jurisdiction or
before any arbitrator wherein an unfavorable injunction, judgment,
order, decree, ruling, or charge would (A) prevent consummation of
any of the transactions contemplated by this Agreement or (B) cause
any of the transactions contemplated by this Agreement to be
rescinded following consummation (and no such injunction, judgment,
order, decree, ruling, or charge shall be in effect);
The Target may waive any condition specified in this Section 6(b) if it
executes a writing so stating at or prior to the Closing.
7. Indemnification.
(a) Survival of Representations and Warranties. All of the
representations and warranties of the Parties contained in the Agreement
shall survive the Closing thereof (even if the damaged Party knew or had
reason to know of any misrepresentation or breach of warranty or covenant
at the time of Closing) and continue in full force and effect forever
thereafter (subject to any applicable statutes of limitations).
(b) Indemnification Provisions for Benefit of the Buyer. In
the event that any of the Target or the Shareholder breach (or in the
event any third party alleges facts that, if true, would mean any of the
Target or the Shareholder has breached) any of their representations,
warranties, and covenants contained in this Agreement and, provided that
Buyer makes a written claim for indemnification against Shareholder within
such survival period, then the Target and the Shareholder each agree,
jointly and severally, to indemnify Buyer from and against the entirety of
any Adverse Consequences Buyer may suffer through and after the date of
the claim for indemnification resulting from, arising out of, relating to,
in the nature of, or caused by the breach (or the alleged breach).
(c) Indemnification Provisions for Benefit of the Sellers. In
the event Buyer breaches (or in the event any third party alleges facts
that, if true, would mean Buyer has breached) any of its representations,
warranties, and covenants contained herein, provided that the Shareholder
makes a written claim for indemnification against Buyer within such
survival period, then Buyer agrees to indemnify the Shareholder and Target
from and against the entirety of any Adverse Consequences the Shareholder
and Target may suffer through and after the date of the claim for
indemnification resulting from, arising out of, relating to, in the nature
of, or caused by the breach (or the alleged breach).
(d) Matters Involving Third Parties.
(i) If any third party shall notify any Party (the
"Indemnified Party") with respect to any matter (a "Third Party Claim")
which may give rise to a claim for indemnification against any other Party
(the "Indemnifying Party") under this Section 8, then the Indemnified
Party shall promptly notify each Indemnifying Party thereof in writing;
provided, however, that no delay on the part of the Indemnified Party in
notifying any Indemnifying Party shall relieve the Indemnifying Party from
any obligation hereunder unless (and then solely to the extent) the
Indemnifying Party thereby is prejudiced.
(ii) Any Indemnifying Party will have the right to defend
the Indemnified Party against the Third Party Claim with counsel of its
choice reasonably satisfactory to the Indemnified Party so long as (A) the
Indemnifying Party notifies the Indemnified Party in writing within 15
days after the Indemnified Party has given notice of the Third Party Claim
that the Indemnifying Party will indemnify the Indemnified Party from and
against the entirety of any Adverse Consequences the Indemnified Party may
suffer resulting from, arising out of, relating to, in the nature of, or
caused by the Third Party Claim, (B) the Indemnifying Party provides the
Indemnified Party with evidence reasonably acceptable to the Indemnified
Party that the Indemnifying Party will have the financial resources to
defend against the Third Party Claim and fulfill its indemnification
obligations hereunder, (C) the Third Party Claim involves only money
damages and does not seek an injunction or other equitable relief, (D)
settlement of, or an adverse judgment with respect to, the Third Party
Claim is not, in the good faith judgment of the Indemnified Party, likely
to establish a precedential custom or practice materially adverse to the
continuing business interests of the Indemnified Party, and (E) the
Indemnifying Party conducts the defense of the Third Party Claim actively
and diligently.
(iii) So long as the Indemnifying Party is conducting
the defense of the Third Party Claim in accordance with Section 7(d)(ii)
above, (A) the Indemnified Party may retain separate co-counsel at its
sole cost and expense and participate in the defense of the Third Party
Claim, (B) the Indemnified Party will not consent to the entry of any
judgment or enter into any settlement with respect to the Third Party
Claim without the prior written consent of the Indemnifying Party (not to
be withheld unreasonably), and (C) the Indemnifying Party will not consent
to the entry of any judgment or enter into any settlement with respect to
the Third Party Claim without the prior written consent of the Indemnified
Party (not to be withheld unreasonably).
(iv) In the event any of the conditions in Section 7(d)(ii)
above is or becomes unsatisfied, however, (A) the Indemnified Party may
defend against, and consent to the entry of any judgment or enter into any
settlement with respect to, the Third Party Claim in any manner it
reasonably may deem appropriate (and the Indemnified Party need not
consult with, or obtain any consent from, any Indemnifying Party in
connection therewith), (B) the Indemnifying Parties will reimburse the
Indemnified Party promptly and periodically for the costs of defending
against the Third Party Claim (including reasonable attorneys' fees and
expenses), and (C) the Indemnifying Parties will remain responsible for
any Adverse Consequences the Indemnified Party may suffer resulting from,
arising out of, relating to, in the nature of, or caused by the Third
Party Claim to the fullest extent provided in this Section 7.
(e) Other Indemnification Provisions. The foregoing
indemnification provisions are in addition to, and not in derogation of,
any statutory, equitable, or common law remedy any Party may have with
respect to the transactions contemplated by this Agreement.
8. Miscellaneous.
(a) Survival of Representations and Warranties. All of the
representations and warranties of the Parties contained in this Agreement
shall survive the Closing hereunder.
(b) Press Releases and Public Announcements. Neither the
Shareholder nor the Target shall issue any press release or make any
public announcement relating to the subject matter of this Agreement prior
to the Closing without the prior written approval of the Buyer. The Buyer
may make any public disclosure it believes in good faith is required by
applicable law or any listing or trading agreement concerning its
publicly-traded securities (in which case the Buyer will use its
reasonable best efforts to advise the other Parties prior to making the
disclosure).
(c) No Third-Party Beneficiaries. This Agreement shall not
confer any rights or remedies upon any Person other than the Parties and
their respective successors and permitted assigns.
(d) Entire Agreement. This Agreement and the Acquisition
Agreement (including the documents referred to therein) constitutes the
entire agreement between the Parties and supersedes any prior
understandings, agreements, or representations by or between the Parties,
written or oral, to the extent they related in any way to the subject
matter hereof.
(e) Succession and Assignment. This Agreement shall be binding
upon and inure to the benefit of the Parties named herein and their
respective successors and permitted assigns. No Party may assign either
this Agreement or any of its rights, interests, or obligations hereunder
without the prior written approval of the other Party; provided, however,
that the Buyer may (i) assign any or all of its rights and interests
hereunder to one or more of its Affiliates and (ii) designate one or more
of its Affiliates to perform its obligations hereunder (in any or all of
which cases the Buyer nonetheless shall remain responsible for the
performance of all of its obligations hereunder).
(f) Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but all of
which together will constitute one and the same instrument.
(g) Headings. The section headings contained in this Agreement
are inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement.
(h) Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly given if (and
then three business days after) it is sent by registered or certified
mail, return receipt requested, postage prepaid, and addressed to the
intended recipient as set forth below:
If to the Seller:
Mr. Xxxxxxx XxXxxxx
Xxxx 00
Xxxxxxxxx Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxx
Xxxxxxxxx XX0 0XX U.K.
If to the Buyer:
Xxxxx Enterprises, Incorporated
000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxxx, XX 00000
Attn: Xxxx X. Xxxxxx, Esquire
With a copy to:
Xxxxx & Lardner
000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Esquire
Any Party may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the address set forth
above using any other means (including personal delivery, expedited
courier, messenger service, telecopy, telex, ordinary mail, or electronic
mail), but no such notice, request, demand, claim, or other communication
shall be deemed to have been duly given unless and until it actually is
received by the intended recipient. Any Party may change the address to
which notices, requests, demands, claims, and other communications
hereunder are to be delivered by giving the other Party notice in the
manner herein set forth.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF FLORIDA
WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE
(WHETHER OF THE STATE OF FLORIDA OR ANY OTHER JURISDICTION) THAT WOULD
CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE
OF FLORIDA.
(j) Amendments and Waivers. No amendment of any provision of
this Agreement shall be valid unless the same shall be in writing and
signed by the Buyer and the Target. The Target may consent to any such
amendment at any time prior to the Closing with the prior authorization of
its board of directors. No waiver by any Party of any default,
misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent
such occurrence.
(k) Severability. Any term or provision of this Agreement that
is invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and
provisions hereof or the validity or enforceability of the offending term
or provision in any other situation or in any other jurisdiction.
(l) Expenses. Each of the Buyer, the Target and the
Shareholder will bear his or its own costs and expenses (including legal
fees and expenses) incurred in connection with this Agreement and the
transactions contemplated hereby. The Target agrees that it has not and
shall not bear any of the costs and expenses of the Shareholder (including
any of their legal fees and expenses) in connection with this Agreement or
any of the transactions contemplated hereby. The Target also agrees that
it has not paid any amount to any third party, and will not pay any amount
to any third party until after the Closing, with respect to any of the
costs and expenses of the Shareholders (including any of their legal fees
and expenses) in connection with this Agreement or any of the transactions
contemplated hereby.
(m) Construction. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be
construed as if drafted jointly by the Parties and no presumption or
burden of proof shall arise favoring or disfavoring any Party by virtue of
the authorship of any of the provisions of this Agreement. Any reference
to any federal, state, local, or foreign statute or law shall be deemed
also to refer to all rules and regulations promulgated thereunder, unless
the context requires otherwise. The word "including" shall mean including
without limitation. Nothing in the Disclosure Schedule shall be deemed
adequate to disclose an exception to a representation or warranty made
herein unless the Disclosure Schedule identifies the exception with
reasonable particularity and describes the relevant facts in reasonable
detail. Without limiting the generality of the foregoing, the mere listing
(or inclusion of a copy) of a document or other item shall not be deemed
adequate to disclose an exception to a representation or warranty made
herein (unless the representation or warranty has to do with the existence
of the document or other item itself). The Parties intend that each
representation, warranty, and covenant contained herein shall have
independent significance. If any Party has breached any representation,
warranty, or covenant contained herein in any respect, the fact that there
exists another representation, warranty, or covenant relating to the same
subject matter (regardless of the relative levels of specificity) which
the Party has not breached shall not detract from or mitigate the fact
that the Party is in breach of the first representation, warranty, or
covenant.
(n) Incorporation of Exhibits and Schedules. The Exhibits and
Schedules identified in this Agreement are incorporated herein by
reference and made a part hereof.
(o) Specific Performance. Each of the Parties acknowledges and
agrees that the other Party would be damaged irreparably in the event any
of the provisions of this Agreement are not performed in accordance with
their specific terms or otherwise are breached. Accordingly, each of the
Parties agrees that the other Party shall be entitled to an injunction or
injunctions to prevent breaches of the provisions of this Agreement and to
enforce specifically this Agreement and the terms and provisions hereof in
any action instituted in any court of the United States or any state
thereof having jurisdiction over the Parties and the matter (subject to
the provisions set forth in Section 8(p) below), in addition to any other
remedy to which it may be entitled, at law or in equity.
(p) Submission to Jurisdiction. Each of the Parties submits to
the jurisdiction of any state or federal court sitting in Tampa, Florida,
in any action or proceeding arising out of or relating to this Agreement
and agrees that all claims in respect of the action or proceeding may be
heard and determined in any such court. Each Party also agrees not to
bring any action or proceeding arising out of or relating to this
Agreement in any other court. Each of the Parties waives any defense of
inconvenient forum to the maintenance of any action or proceeding so
brought and waives any bond, surety, or other security that might be
required of any other Party with respect thereto. Each Party agrees that
a final judgment in any action or proceeding so brought shall be
conclusive and may be enforced by suit on the judgment or in any other
manner provided by law or in equity.
WITNESSES TRANSLATION, FULFILMENT &
COMMUNICATION, N.V., a corporation
organized under the laws of Belgium
_________________________ By: ____________________________________
_________________________ ("Buyer")
INTERACTIVE DATA SOLUTIONS, LTD.
a corporation organized under the laws of
the United Kingdom
__________________________ By: ____________________________________
__________________________ ("Target")
__________________________ ________________________________________
XXXXXXX XXXXXXX, individually
__________________________
("Shareholder")
