EXHIBIT 2.6
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement is entered into as of the 19th day of May,
1999, among ZEFER Corp., a Delaware corporation (the "Buyer"), Renaissance
Worldwide, Inc., a Massachusetts corporation ("Renaissance"), and Neoglyphics
Media Corporation, an Illinois corporation and a wholly owned subsidiary of
Renaissance ("NMC"). Renaissance and NMC are sometimes referred to herein
individually as a "Seller" and together as the "Sellers."
Preliminary Statement
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Subject to the terms and conditions of this Agreement, the Buyer desires to
purchase (or cause one or more of its wholly-owned subsidiaries to purchase),
and the Sellers desire to sell (or cause an Affiliate to sell), (i) certain of
the assets and business of NMC (the "NMC Business") and (ii) the business and
assets of the Sellers used in connection with the customer management solutions
practice of Renaissance (the "CMS Business," and together with the NMC Business,
the "Businesses"), for the consideration set forth below and the assumption by
the Buyer of certain of the Sellers' liabilities set forth below relating to the
Businesses.
The Buyer may designate one or more Designated Transferees (as defined in
Section 10.4 of this Agreement) to purchase the NMC Business and/or the CMS
Business, provided that the Buyer shall guaranty the obligations of any such
Designated Transferee, as provided below.
NOW, THEREFORE, in consideration of the representations, warranties and
covenants herein contained, the parties agree as follows.
ARTICLE I
DEFINITIONS
For purposes of this Agreement, the following terms shall have the meanings
ascribed to them below.
1.1 "Accounts Receivable" means all trade and other accounts receivable
and notes and loans receivable relating to or generated by the NMC
Business and/or the CMS Business.
1.2 "Acquired Assets" means all right, title and interest in and to the
following:
(a) all Accounts Receivable and all unbilled amounts for Contracts in
Progress;
(b) all Intellectual Property and all associated goodwill;
(c) all rights under the contracts, agreements and instruments set
forth on Schedule 1.2(c) attached hereto (collectively, the "Assigned
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Contracts");
(d) all claims, security deposits, prepayments, refunds, causes of
action, choses in action, rights of recovery, rights of setoff and rights of
recoupment relating to the NMC Business or the CMS Business listed on Schedule
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1.2(d) attached hereto, and all rights under warranties;
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(e) all Permits issued by or obtained from any Governmental Entity
and relating to the NMC Business or the CMS Business, to the extent such Permits
are transferable;
(f) all books, records, accounts, ledgers, files, documents,
correspondence, lists (customer or otherwise), drawings or specifications,
product and sales literature, employment records, manufacturing, technical and
procedural manuals, advertising and promotional materials, studies, reports and
other printed or written materials relating to the NMC Business or the CMS
Business, other than stock record books and minute books of NMC;
(g) all real property, leaseholds and subleaseholds in real property,
and easements, rights-of-way and other appurtenants thereto relating to the NMC
Business or the CMS Business;
(h) all rights to enforce any confidentiality, invention assignment
and/or noncompetition agreements between either Seller and its employees to the
extent that such agreements relate to the NMC Business and/or the CMS Business;
(i) all claims and defenses to the extent relating to any of the
foregoing or to the Assumed Liabilities; and
(j) the assets listed on Section 3.8(c) of the Disclosure Schedule.
1.3 "Affiliate" shall have the meaning set forth in Rule 12b-2 under the
Exchange Act.
1.4 "Agreement" shall mean this Asset Purchase Agreement, together with
the exhibits and schedules (including the Disclosure Schedule) hereto,
as such agreement, exhibits and schedules may be amended from time to
time in accordance with the terms hereof.
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1.5 "Ancillary Agreements" means the agreements and instruments attached
as exhibits to this Agreement or contemplated to be entered into in
connection herewith.
1.6 "Assigned Contracts" shall have the meaning set forth in Section
1.2(c) of this Agreement.
1.7 "Assumed Liabilities" means the following liabilities of the Sellers
and no other liabilities:
(a) the liabilities of NMC incurred in connection with the NMC
Business as set forth on the face of Exhibit A-1 to the extent
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they have not been paid or discharged prior to the Closing;
(b) the liabilities of Renaissance incurred in connection with the
CMS Business as set forth on the face of Exhibit A-2 to the
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extent they have not been paid or discharged prior to the
Closing;
(c) all liabilities of NMC incurred in connection with the NMC
Business, which have arisen after the date set forth on Exhibit
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A-1 in the Ordinary Course of Business and which are of the same
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type as those set forth on Exhibit A-1, to the extent such
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liabilities have not been paid or discharged prior to the
Closing;
(d) all liabilities of Renaissance incurred in connection with the
CMS Business, which have arisen after the date set forth on
Exhibit A-2 in the Ordinary Course of Business and which are of
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the same type as those set forth on Exhibit A-2, to the extent
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such liabilities have not been paid or discharged prior to the
Closing; and
(e) all obligations of either Seller arising after the Closing under
the Assigned Contracts, other than obligations arising from a
breach of an Assigned Contract by either Seller prior to the
Closing Date.
1.8 "Businesses" shall have the meaning set forth in the Preliminary
Statement.
1.9 "Buyer" means ZEFER Corp., a Delaware corporation.
1.10 "Buyer Financial Statements" shall have the meaning set forth in
Section 4.7 of this Agreement.
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1.11 "Cash Payment" shall have the meaning set forth in Section 2.3(b)(i)
of this Agreement.
1.12 "CERCLA" means the federal Comprehensive Environmental Compensation,
Liability and Response Act of 1980.
1.13 "Closing" means the closing of the transactions contemplated by this
Agreement.
1.14 "Closing Date" shall have the meaning set forth in Section 2.4(a) of
this Agreement.
1.15 "Closing Statement" shall have the meaning set forth in Section 2.6(b)
of this Agreement.
1.16 "Code" means the Internal Revenue Code of 1986, as amended.
1.17 "Continuing Employee" means each employee employed in the Business by
either Seller who accepts employment with the Buyer pursuant to
Section 7.7 of this Agreement.
1.18 "Contracts in Progress" means all contracts in progress relating to
the Business.
1.19 "Damages" means claims, damages, actions, suits, proceedings, demands,
assessments, adjustments, costs and expenses (including, specifically,
but without limitation, reasonable attorneys' fees and expenses of
investigation). For purposes of Section 8.1, the amount of Damages
shall be decreased by the Tax benefit realized by the Indemnified
Party as a result of or in connection with the events giving rise to
indemnification. To the extent Damages are incurred in a currency
other than U.S. Dollars, Damages shall be paid in U.S. Dollars based
on the applicable exchange rate in effect on the date on which such
Damages are finally determined in accordance with Article VIII of this
Agreement.
1.20 "Designated Transferee" shall have the meaning set forth in Section
10.4 of this Agreement.
1.21 "Disclosure Schedule" shall have the meaning set forth in the
introduction to Article III of this Agreement.
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1.22 "Employee Benefit Plan" means any "employee pension benefit plan" (as
defined in Section 3(2) of ERISA), any "employee welfare benefit plan"
(as defined in Section 3(1) of ERISA), and any other written or oral
plan, agreement or arrangement involving compensation, including
without limitation insurance coverage, severance benefits, disability
benefits, deferred compensation, bonuses, stock options, stock
purchase, phantom stock, stock appreciation or other forms of
incentive compensation or post-retirement compensation relating to any
employee of the NMC Business or the CMS Business.
1.23 "Environmental Law" means any Law or Regulation or the common law
relating to the environment or occupational health and safety,
including without limitation any statute, regulation or order
pertaining to (a) treatment, storage, disposal, generation and
transportation of industrial, toxic or hazardous substances or solid
or hazardous waste; (b) air, water and noise pollution; (c)
groundwater and soil contamination; (d) the release or threatened
release into the environment of industrial, toxic or hazardous
substances, or solid or hazardous waste, including without limitation
emissions, discharges, injections, spills, escapes or dumping of
pollutants, contaminants, pesticides or chemicals; (e) the protection
of wildlife, marine sanctuaries and wetlands, including without
limitation all endangered and threatened species; (f) underground and
other storage tanks or vessels, abandoned, disposed or discarded
barrels, containers and other receptacles; (g) health and safety of
employees and other persons; and (h) manufacture, processing, use,
distribution, treatment, storage, disposal, transportation or handling
of pollutants, contaminants, pesticides, chemicals or industrial,
toxic or hazardous substances or oil or petroleum products or solid or
hazardous waste. As used herein, the terms "release" and "environment"
shall have the meaning set forth in CERCLA.
1.24 "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
1.25 "ERISA Affiliate" means any entity which is a member of (a) a
controlled group of corporations (as defined in Section 414(b) of the
Code, (b) a group of trades or businesses under common control (as
defined in Section 414(c) of the Code), or (c) an affiliated service
group (as defined under Section 414(m) of the Code or the regulations
under Section 414(o) of the Code), any of which includes or included
either of the Sellers.
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1.26 "Exchange Act" means the Securities Exchange Act of 1934, as amended.
1.27 "Excluded Assets" means any assets of NMC or Renaissance that are not
identified as Acquired Assets under Section 1.2.
1.28 "Financial Statements" means the statements attached hereto as Exhibit
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B.
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1.29 "GAAP" means United States generally accepted accounting principles.
1.30 "Governmental Entity" means any foreign, federal, state or local
governmental, regulatory or administrative authority or agency, court
or arbitrational tribunal.
1.31 "HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended.
1.32 "Indemnified Party" means any party or parties seeking indemnification
under Article VIII of this Agreement.
1.33 "Indemnifying Party" means any party or parties from whom
indemnification is sought under Article VIII of this Agreement.
1.34 "Initial Closing Statement" shall have the meaning set forth in
Section 2.6(a) of this Agreement.
1.35 "Intellectual Property" means any and all (a) patents, patent
applications, patent disclosures and all related continuation,
continuation-in-part, divisional, reissue, re-examination, utility
model, certificate of invention and design patents, patent
applications, registrations and applications for registrations, (b)
trademarks, service marks, trade dress, logos, trade names and
corporate names and registrations and applications for registration
thereof, (c) copyrights and registrations and applications for
registration thereof, (d) mask works and registrations and
applications for registration thereof, (e) computer software, data and
documentation, (f) trade secrets and confidential business
information, whether patentable or nonpatentable and whether or not
reduced to practice, know-how, manufacturing and product processes and
techniques, research and development information, copyrightable works,
financial, marketing and business data, pricing and cost information,
business and marketing plans and customer and supplier lists and
information,
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(g) other proprietary rights relating to any of the foregoing
(including without limitation remedies against infringements thereof
and rights of protection of interest therein under the Laws and
Regulations of all jurisdictions), and (h) copies and tangible
embodiments thereof used in either the CMS Business or the NMC
Business.
1.36 "Knowledge" means: (a) if with respect to the Buyer, the actual
knowledge or awareness, after due inquiry, of any individual listed on
Schedule 1.36(a) or (b) if with respect to either Seller, the actual
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knowledge or awareness, after due inquiry, of any individual listed on
Schedule 1.36(b).
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1.37 "Laws and Regulations" means all federal, state, regional, county,
local or foreign laws, statutes, codes, rules, decrees, regulations,
ordinances and orders.
1.38 "Material Adverse Effect" means Damages to the NMC Business, the CMS
Business and/or the Buyer of more than $150,000.
1.39 "Materials of Environmental Concern" means any chemicals, pollutants
or contaminants, hazardous substances (as such term is defined under
CERCLA), solid wastes and hazardous wastes (as such terms are defined
under the federal Resources Conservation and Recovery Act),
pesticides, toxic materials, oil or petroleum and petroleum products
or any other material subject to regulation under any Environmental
Law.
1.40 "Net Assets" means the sum of (a) the difference between assets and
liabilities shown on Exhibit A-1 and (b) the difference between assets
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and liabilities shown on Exhibit A-2.
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1.41 "Neutral Accountants" shall have the meaning set forth in Section
2.6(b) of this Agreement.
1.42 "Ordinary Course of Business" means the ordinary course of business
consistent with past custom and practice (including with respect to
frequency and amount).
1.43 "PBGC" means the Pension Benefit Guarantee Corporation.
1.44 "Permits" means all material permits, licenses, registrations,
certificates, orders, approvals, franchises, variances and similar
rights used in connection with the NMC Business or the CMS Business.
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1.45 "Purchase Price" shall have the meaning set forth in Section 2.3(a) of
this Agreement.
1.46 "Restricted Assets" means each Assigned Contract that cannot be
validly assigned, transferred, subleased or sublicensed without the
consent or waiver of the issuer thereof or the other party thereto or
a third person (including a Governmental Entity), or with respect to
which such assignment, transfer, sublease or sublicense or attempted
assignment, transfer, sublease or sublicense constitutes a breach
thereof or a violation of any Law or Regulation or entitles the other
party thereto to terminate such contract, agreement or instrument or
receive any additional payment thereunder.
1.47 "Restricted Employee" means any person who was employed by either
Seller in connection with the NMC Business or the CMS Business on
either the date of this Agreement or the Closing Date and received an
employment offer from the Buyer within five business days following
the Closing Date.
1.48 "Retained Liabilities" shall have the meaning set forth in Section
2.2(b) of this Agreement.
1.49 "Retirement Plans" shall have the meaning set forth in Section 3.13(b)
of this Agreement.
1.50 "Security Interest" means any mortgage, pledge, security interest,
encumbrance, charge or other lien (whether arising by contract or by
operation of law).
1.51 "Sellers" means Renaissance and NMC.
1.52 "Shares" shall have the meaning set forth in Section 2.3(c)(ii) of
this Agreement.
1.53 "Subsidiary" means (a) any corporation with respect to which another
corporation or entity, directly or indirectly, has the power to vote
or direct the voting of sufficient securities to elect a majority of
the directors or (b) any corporation or other entity with respect to
which another corporation or entity, directly or indirectly, owns 50%
or more of the aggregate equity interest.
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1.54 "Taxes" means all taxes or similar assessments or liabilities,
including without limitation income, gross receipts, ad valorem,
premium, value-added, excise, real property, personal property, sales,
use, transfer, withholding, employment, payroll and franchise taxes
imposed by the United States of America or any state, local or foreign
government, or any agency thereof, or other political subdivision of
the United States or any such government, and any interest, fines,
penalties, assessments or additions to tax resulting from,
attributable to or incurred in connection with any tax or any contest
or dispute thereof and any obligation to pay or reimburse any other
parties for any such liabilities of such other party.
1.55 "Tax Returns" means all reports, returns, declarations, statements or
other information required to be supplied to a taxing authority in
connection with Taxes.
ARTICLE II
THE PURCHASE
2.1 Purchase and Sale of the Acquired Assets. Upon and subject to the
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terms and conditions of this Agreement, the Buyer (or any Designed Transferee,
as defined in Section 10.4) shall purchase from the Sellers, and the Sellers
shall, or shall cause their respective Affiliates to, sell, transfer, convey,
assign and deliver to the Buyer (or any Designated Transferee), at the Closing,
for the consideration specified below in this Article II, all of the Acquired
Assets. Notwithstanding the foregoing, the Acquired Assets shall not include any
of the Excluded Assets.
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2.2 Assumption of Liabilities.
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(a) Subject to the terms and conditions of this Agreement, the Buyer
or any Designated Transferee shall assume and become responsible for, from and
after the Closing, the Assumed Liabilities.
(b) Notwithstanding anything to the contrary set forth herein, the
Buyer shall not assume or become responsible for, and each Seller shall remain
solely liable for, any and all liabilities or obligations (whether known or
unknown, whether absolute or contingent, whether liquidated or unliquidated,
whether accrued or unaccrued, whether due or to become due, and whether claims
with respect thereto are asserted before or after the Closing) of such Seller
which are not Assumed Liabilities (collectively, the "Retained Liabilities").
The Retained Liabilities shall include, without limitation, the following:
(i) all liabilities and obligations of either Seller for costs
and expenses incurred in connection with this Agreement or the consummation of
the transactions contemplated by this Agreement;
(ii) all liabilities and obligations of either Seller under
this Agreement or any of the Ancillary Agreements;
(iii) all liabilities and obligations of either Seller for any
Taxes (except of the type listed on the Closing Statement as defined in Section
2.6(b));
(iv) all liabilities and obligations of either Seller under any
agreements, contracts, leases or licenses that are not Assigned Contracts;
(v) all obligations of either Seller arising prior to the
Closing under the Assigned Contracts, and all liabilities for any breach, act or
omission by either Seller prior to the Closing under any Assigned Contract;
(vi) all liabilities and obligations of either Seller arising
out of events, conduct or conditions existing or occurring prior to the Closing
that constitute a violation of or noncompliance with any Law or Regulation, any
judgment, decree or order of any Governmental Entity, or any Permit;
(vii) all liabilities and obligations of either Seller
(including without limitation costs of cleanup and remediation) resulting from
(A) any releases of any Materials of Environmental Concern into the environment
in connection with the operation of either the NMC Business or the CMS Business
or any other business by either Seller or any predecessor business or company
prior to the Closing Date or for
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which either Seller is liable pursuant to any indemnity or otherwise; (B) the
existence of any Materials of Environmental Concern at any site on which the
business or operations of the NMC Business or the CMS Business or any
predecessor business or company was conducted prior to the Closing Date or to
which any such Materials of Environmental Concern were transported; (C) any
release of any Materials of Environmental Concern at any such location if such
release could give rise under any Environmental Law to liability on the part of
either Seller or any predecessor business or company; or (D) any violation of
any Environmental Law by either Seller or any predecessor business or company
which occurred prior to the Closing; provided, however, that the liabilities and
obligations referred to in this clause (ix) shall constitute Retained
Liabilities only to the extent asserted by the Buyer prior to the fifth
anniversary of the Closing Date; provided, further however, that Retained
Liabilities shall include all Damages which result from an event, condition,
release or violation asserted by the Buyer prior to such date whether or not
they are known or asserted before such fifth anniversary;
(viii) all liabilities and obligations of either Seller for injury to
or death of persons or damage to or destruction of property occurring prior to
the Closing (including without limitation any workers compensation claim);
(ix) all intercompany liabilities of either Seller and its
Affiliates;
(x) any claims against, or liabilities or obligations of or in
connection with, any Employee Benefit Plans, including without limitation any
excise Taxes, penalties or other liabilities imposed under ERISA or the Code;
(xi) all liabilities and obligations of either Seller to pay
severance, termination pay, redundancy pay, pay in lieu of notice or other
benefits to any current or former employee of either Seller whose employment is
terminated (or treated as terminated) by either Seller in connection with the
consummation of the transactions contemplated by this Agreement, and all
liabilities resulting from the termination of employment of employees of either
Seller prior to the Closing that arose under any Law or Regulation or under any
Employee Benefit Plan established or maintained by such Seller, including
without limitation any liabilities of such Seller pursuant to agreements and
plans listed in Section 3.13(e) of the Disclosure Schedule;
(xii) all liabilities and obligations of either Seller for all
compensation and benefits accrued by employees of either Seller employed in the
NMC Business or the CMS Business prior to the Closing other than those of the
nature and type included on Exhibit A-1 and Exhibit A-2;
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(xiii) all liabilities and obligations of either Seller arising out
of any claim, suit, action, arbitration, proceeding, investigation or other
similar matter which commenced or relates to the ownership of the Acquired
Assets or the operation of the NMC Business or the CMS Business on or prior to
the Closing;
(xiv) all liabilities and obligations of either Seller for income,
transfer, sales, use or other Taxes arising in connection with the consummation
of the transactions contemplated by this Agreement;
(xv) all liabilities and obligations under foreign currency
contracts to which either Seller is a party;
(xvi) all liabilities and obligations of either Seller with
respect to any overdraft facility, bank credit line or indebtedness for borrowed
money;
(xvii) all liabilities and obligations of either Seller relating
to any of the Excluded Assets;
(xviii) all liabilities and obligations under Restricted Assets to
the extent either Seller does not obtain the consents and waivers necessary to
assign, transfer, sublease or sublicense such Restricted Assets to the Buyer and
such Seller does not provide to the Buyer the benefits of such Restricted Assets
pursuant to Section 2.9(b);
(xix) all liabilities and obligations with respect to the matters
for which any provision of this Agreement provides that the Buyer shall assume
no liability;
(xx) all liabilities and obligations of either Seller not related
primarily to either the NMC Business or the CMS Business;
(xxi) all liabilities and obligations of either Seller under any
agreements relating to the disposition of significant assets, businesses or
companies (whether by sale of assets, sale of stock, merger or otherwise)
entered into at any time prior to the Closing; and
(xxii) all liabilities and obligations of either Seller arising out
of events, conduct or conditions existing or occurring prior to the Closing that
do or allegedly constitute an infringement or violation of, or do or allegedly
constitute a misappropriation of, any Intellectual Property rights of any other
person or entity.
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2.3 Purchase Price.
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(a) The purchase price ("Purchase Price") of the Acquired Assets
shall be $12,000,000 and shall be payable in the manner described in paragraph
(b) of this Section 2.3.
(b) At the Closing, the Buyer shall deliver:
(i) the sum of $10,000,000 (the "Cash Payment"), by wire
transfer or other delivery of immediately available funds to an account
designated by the Sellers at least one business day prior to the Closing less
the amount to pay off the aggregate amount of principal and interest as of the
Closing Date owed by NMC to American National Bank & Trust Company of Chicago;
(ii) a convertible subordinated promissory note of the Buyer in
the principal amount of $2,000,000 (the "Note") substantially in the form
attached hereto as Exhibit C. The Cash Payment is subject to adjustment pursuant
to Section 2.6 below.
(c) In addition to payment of the Cash Payment and delivery of the
Note, the Buyer agrees to issue to Renaissance at the Closing an aggregate of
100,000 shares of Buyer Common Stock (the "Shares").
2.4 The Closing.
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(a) The Closing shall take place at the offices of Xxxx and Xxxx LLP,
00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx commencing at 9:00 a.m. local time on May
26, 1999, or, if all of the conditions to the obligations of the parties to
consummate the transactions contemplated hereby have not been satisfied or
waived by such date, on such mutually agreeable later date as soon as
practicable after the satisfaction or waiver of all conditions to the
obligations of the parties to consummate the transactions contemplated hereby,
but in no event more than five business days after such satisfaction or waiver
(the "Closing Date").
(b) At the Closing:
(i) Sellers shall deliver to the Buyer the various
certificates, instruments, agreements and other documents referred to in Section
6.1;
(ii) the Buyer shall deliver to the Sellers the various
certificates, instruments, agreements and other documents referred to in Section
6.2;
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(iii) the Sellers shall execute and deliver to the Buyer a xxxx
of sale substantially in the form attached hereto as Exhibit D and execute and
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deliver or obtain, as appropriate, such other instruments of conveyance
(including without limitation deeds, trademark assignments, patent assignments,
copyright and other intellectual property licenses and assignments, of leasehold
interests) as the Buyer may reasonably request in order to effect the sale,
transfer, conveyance and assignment to the Buyer of valid ownership of the
Acquired Assets, including any required consents, approvals or permits;
(iv) the Buyer shall execute and deliver to each of the Sellers
an instrument of assumption of liabilities in the form attached hereto as
Exhibit E and such other instruments as the Sellers may reasonably request in
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order to effect the assumption by the Buyer of the Assumed Liabilities;
(v) the Sellers shall execute and deliver to the Buyer a
Trademark Assignment in the form attached hereto as Exhibit F;
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(vi) the Buyer shall pay the Cash Payment as specified in
Section 2.3(b)(i);
(vii) the Buyer shall issue the Note as specified in Section
23(b)(ii);
(viii) the Sellers shall deliver to the Buyer, or otherwise put
the Buyer in possession and control of, all of the Acquired Assets of a tangible
nature; and
(ix) the Buyer and the Sellers shall execute and deliver to
each other a cross-receipt evidencing the transactions referred to above.
(c) All transactions at the Closing shall be deemed to take place
at 12:01 a.m. Boston, Massachusetts time on the Closing Date, and no transaction
shall be deemed to have been completed and no documents or certificate shall be
deemed to have been delivered until all other transactions are completed and all
other documents and certificates are delivered.
2.5 Allocation of Purchase Price. The Buyer and the Sellers agree to
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allocate the Purchase Price and the value of the Shares (and all other
capitalizable costs) among the Acquired Assets in the manner required by Section
1060 of the Code. The parties agree to file all Tax Returns in a manner
consistent with such allocation.
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2.6 Post-Closing Adjustments. The Purchase Price set forth in Section 2.3
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shall be subject to adjustment after the Closing Date as follows:
(a) As promptly as possible after the Closing Date (but in any event
not later than 45 days thereafter), the Buyer shall prepare and deliver to
Renaissance a statement of Net Assets (the "Initial Closing Statement") as of
the close of business on the Closing Date (without giving effect to the
transactions contemplated by this Agreement). The accounting principles used in
preparing Exhibit A-1 and Exhibit A-2 are set forth in those Exhibits. The
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Buyer shall prepare the Initial Closing Statement in accordance with GAAP and on
a basis consistent with the accounting principles used in preparing Exhibit A-1
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and Exhibit A-2 (to the extent such accounting principles are consistent with
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GAAP). The Initial Closing Statement shall also set forth the determination of
the Purchase Price, as adjusted pursuant to this Section 2.6.
(b) Renaissance shall deliver to the Buyer within 30 days after
receiving the Initial Closing Statement a detailed statement describing any
objections thereto. Failure of Renaissance to so object to the Initial Closing
Statement shall constitute acceptance thereof by Renaissance, whereupon the
Initial Closing Statement shall be deemed to be the Closing Statement. The
Buyer and Renaissance shall use reasonable efforts to resolve any such
objections, but if they do not reach a final resolution within 45 days after the
Buyer has received Renaissance's statement of objections, the Buyer and
Renaissance shall engage the Boston, Massachusetts office of KPMG (or if such
accountants are unable or refuse to serve in such capacity, such other
nationally recognized accounting firm that is not the primary independent
accounting firm for either of the parties as may be designated by the Boston
office of the American Arbitration Association) (the "Neutral Accountants") to
resolve any remaining objections. The Neutral Accountants promptly shall
determine whether the objections raised by Renaissance are appropriate in light
of the requirements of Section 2.6(a). The Initial Closing Statement shall be
adjusted to the extent such objections are determined by the Neutral Accountants
to be appropriate and, as so adjusted, shall be the "Closing Statement." Such
determination by the Neutral Accountants shall be conclusive and binding upon
the parties, absent fraud or manifest error. Nothing herein shall be construed
to authorize or permit the Neutral Accountants to determine (i) any questions or
matter whatever under or in connection with this Agreement except the
determination of what adjustments, if any, must be made in the items reflected
in the Initial Closing Statement that are the subject of objections by
Renaissance, or (ii) an adjustment to an item on the Initial Closing Statement
that is outside of the range defined by amounts as finally proposed by
Renaissance and the Buyer, respectively.
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(c) If the Net Assets as shown on the Closing Statement are equal to
or greater than $5,886,891 and less than or equal to $6,886,891, the Purchase
Price shall equal $12,000,000.
(d) If the Net Assets as shown on the Closing Statement are less than
$5,886,891, the Purchase Price shall equal $12,000,000 less the amount of such
deficiency, and Renaissance shall pay promptly to the Buyer an amount equal to
such deficiency.
(e) If the Net Assets as shown on the Closing Statement are more than
$6,886,891, the Purchase Price shall equal $12,000,000 plus the amount of such
excess, and the Buyer shall pay promptly to Renaissance, an amount equal to such
excess.
(f) Any payments required to be made by Renaissance to the Buyer, or
by the Buyer to Renaissance, pursuant to this Section 2.6 shall be made by wire
transfer or other delivery of immediately available funds, within three business
days after the date on which the Closing Statement is finally determined
pursuant to this Section 2.6.
(g) If the Purchase Price is adjusted pursuant to this Section 2.6,
the allocation of the Purchase Price among the Acquired Assets shall be
appropriately modified to reflect increases or decreases in the various asset
categories that give rise to such adjustments to the maximum extent allowable
under Section 1060 of the Code.
(h) The Buyer, on the one hand, and Renaissance, on the other hand,
shall share equally the fees and expenses of the Neutral Accountants in
connection with the resolution of any dispute pursuant to Section 2.6(b) above.
2.7 Further Assurances. At the Closing and at any time and from time to
------------------
time thereafter, at the request of the Buyer and without further consideration,
the Sellers shall promptly execute and deliver such instruments of sale,
transfer, conveyance and assignment and take all such other action as the Buyer
may determine is necessary to more effectively transfer, convey and assign to
the Buyer, and to evidence and confirm the Buyer's rights to, title in and
ownership of, the Business and the Acquired Assets, to place the Buyer (through
its ownership of the Acquired Assets) in actual possession and operating control
of the assets, properties and business of the Business, to assist the Buyer in
exercising all rights with respect thereto and to carry out the purpose and
intent of this Agreement.
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2.8 Transaction Taxes. Any and all federal, state, county, local or
-----------------
foreignsales, use, value added, excise, stamp, transfer and other Taxes not in
the nature of income taxes, fees and duties (including any interest, additions
to tax and penalties with respect thereto) and any and all transfer, recording
or similar fees and charges imposed in connection with the consummation of the
transactions contemplated by this Agreement shall be borne by the Sellers.
2.9 Restricted Assets.
-----------------
(a) The Sellers shall use all reasonable efforts, and the Buyer shall
cooperate reasonably with the Sellers, (i) to promptly obtain the consents and
waivers necessary to convey or cause to be conveyed to the Buyer all of the
Restricted Assets, and (ii) as of and subject to the occurrence of the Closing,
to promptly convey or cause to be conveyed to the Buyer the Restricted Assets
for which the Sellers have received the necessary consents and waivers;
provided, however, that the Sellers shall not amend or change any Restricted
Asset without the prior written consent of the Buyer unless the Sellers
reasonably deem it necessary to preserve the value of the Restricted Asset. The
Sellers shall cooperate with the Buyer in making applications and filings or
taking any other action necessary for the Buyer to obtain such franchises,
licenses, permits or other instruments or agreements, if any, as are
substantially equivalent to any Restricted Assets that are not assignable to
Buyer as a matter of law. In no event shall the Buyer's cooperation hereunder
require the Buyer to make any payments or incur any out-of-pocket expenses,
except that the Buyer shall reimburse the Sellers on an equitable basis for any
consideration paid, with the prior approval of the Buyer, to any person from
whom a consent or waiver is requested. In no event shall either Seller be
required to make any payments or incur any out-of-pocket expenses in connection
with performing its obligations under this Section 2.9 relating to any client
services agreement.
(b) To the extent that the consents and waivers necessary to assign,
transfer sublease or sublicense any of the Restricted Assets are not obtained,
the Sellers shall, commencing on the Closing Date and continuing for the
duration of each such Restricted Asset, use reasonable efforts to (i) provide to
the Buyer the benefits of any such Restricted Asset not assigned, transferred or
subleased due to the failure or inability of either Seller to obtain such
consent or waiver, (ii) cooperate with the Buyer to reach a reasonable and
lawful arrangement designed to provide such benefits to the Buyer during such
period, and (iii) enforce at the request of the Buyer, or allow the Buyer to
enforce (and, for such purpose, each Seller hereby constitutes and appoints the
Buyer as its true and lawful attorney-in-fact), any rights of either Seller
under any such Restricted Asset against the issuer thereof or the other party or
parties thereto (including the right to elect to terminate such of the foregoing
in accordance with the terms thereof upon the request of the Buyer); provided,
-17-
however, that the reasonable costs and expenses of either Seller incurred at the
Buyer's request with respect to any of the actions contemplated under clause
(iii) above shall be promptly paid or reimbursed by the Buyer to Renaissance.
At the end of each such period, neither Seller shall have any further duties or
obligations under this Section 2.9 with respect to such Restricted Asset and the
failure or inability to obtain any necessary consent or waiver with respect
thereto shall not be a breach of this Agreement so long as such Seller has
carried out its obligations under this Section 2.9.
(c) To the extent that the Buyer is provided the benefits of any
Restricted Asset pursuant to clause (b) of this Section 2.9, the Buyer shall
perform for the benefit of the issuer thereof, or the other party or parties
thereto, the obligations of either Seller thereunder or in connection therewith,
but only to the extent that (i) such action by the Buyer would not result in any
default thereunder or in connection therewith and (ii) such obligation would
have been an Assumed Liability but for the non-assignability or non-
transferability thereof; provided, however, that if the Buyer shall fail to
perform to the extent required herein, the applicable Seller shall thereafter
cease to be obligated under this Section 2.9 to provide the Buyer with any
benefits in respect of the Restricted Asset which is the subject of such failure
to perform unless and until such situation is remedied or, at the sole option of
the applicable Seller, the Buyer shall promptly pay or reimburse such Seller for
all costs reasonably incurred by such Seller to remedy such failure to perform
during such period of failure of performance.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Sellers jointly and severally represent and warrant to the Buyer that
the statements contained in this Article III are true and correct, except as set
forth in the disclosure schedule attached hereto (the "Disclosure Schedule").
The Disclosure Schedule shall be arranged in Sections corresponding to the
numbered and lettered Sections contained in this Article III, and the disclosure
in any Section of the Disclosure Schedule shall qualify the corresponding
Section in this Article III and any Section as to which its applicability is
reasonably apparent based solely on the information disclosed.
3.1 Organization, Qualification and Corporate Power. Each Seller is a
-----------------------------------------------
corporation duly organized, validly existing and in corporate good standing
under the laws of the jurisdiction of its incorporation or organization. Each
Seller is in good standing as a foreign corporation and is licensed or qualified
to transact business in
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the jurisdictions in which the nature of the properties owned or leased by it or
the business transacted by it requires it to be so licensed or qualified, except
where the failure to be so licensed or qualified and in good standing would not
have a Material Adverse Effect. Each Seller has all requisite corporate power
and authority to carry on the businesses in which it is engaged and to own and
use the properties owned and used by it.
3.2 Authority. Each Seller has all requisite power and authority to
---------
execute and deliver this Agreement and the Ancillary Agreements to which it is a
party and to perform its obligations hereunder and thereunder. The execution
and delivery by each Seller of this Agreement and the Ancillary Agreements and
the performance by each Seller of this Agreement and the Ancillary Agreements to
which it is a party and the consummation by each Seller of the transactions
contemplated hereby and thereby have been duly and validly authorized by all
necessary corporate and stockholder action on the part of each Seller. This
Agreement has been duly and validly executed and delivered by each Seller and
constitutes, and each of the Ancillary Agreements to which each Seller is a
party, upon its execution and delivery by each Seller, will constitute, a valid
and binding obligation of each Seller, enforceable against each Seller in
accordance with their respective terms.
3.3 Noncontravention.
----------------
(a) Neither the execution and delivery of this Agreement or the
Ancillary Agreements by each Seller, nor the consummation by each Seller of the
transactions contemplated hereby or thereby, will, directly or indirectly (with
or without notice or lapse of time), (i) conflict with or violate any provision
of the charter or By-laws or similar organizational documents of either Seller
or any resolution adopted by the board of directors or the stockholders of
either Seller, (ii) require on the part of either Seller any filing with, or any
permit, authorization, consent or approval of, any Governmental Entity, except
for (A) applicable requirements, if any, of the Securities Act of 1933, as
amended, and the regulations thereunder, state securities laws and the Nasdaq
National Market and (B) where the failure to obtain such permits,
authorizations, consents or approvals, or to make such filings, would not
prevent the Sellers from performing their respective obligations under this
Agreement and would not have a Material Adverse Effect or give any governmental
entity the right to challenge any of the transactions contemplated by this
Agreement or the Ancillary Agreements, except for any consent or approval rights
of any Governmental Entity outside the United States under applicable antitrust
laws which do not provide for pre-closing filing or notification or any consent
or approval right under the HSR Act, (iii) 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,
consent or waiver
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under, any contract, lease, sublease, license, sublicense, franchise, permit,
indenture, agreement or mortgage for borrowed money, instrument of indebtedness,
Security Interest or other arrangement to which either Seller is a party or by
which either Seller is bound or to which any of the assets of either Seller is
subject, except for (A) such breaches or defaults which would not have a
Material Adverse Effect and (B) as set forth in Section 3.10 or Section 3.18 of
the Disclosure Schedule, (iv) result in the imposition of any Security Interest
upon any of the Acquired Assets, or (v) violate any order, writ, injunction,
decree, Law or Regulation applicable to either Seller or any of its properties
or assets.
(b) There are no Restricted Assets as to which the failure to obtain
all necessary consents and waivers for the assignment, transfer, sublease or
sublicense thereof as of the Closing would, individually or in the aggregate,
result in a Material Adverse Effect.
3.4 Financial Statements. The Financial Statements have been prepared
--------------------
from the books and records of the NMC Business and the CMS Business in
accordance with GAAP applied on a consistent basis throughout the periods
covered thereby (except for the lack of statements of cash flows and stockholder
equity), and fairly present in all material respects the financial condition and
results of operations of the Businesses as of the respective dates thereof and
for the periods referred to therein; provided, however, that the Financial
Statements are subject to normal year-end adjustments and lack footnotes and
other presentation items.
3.5 Absence of Certain Changes. Since the date of Exhibit A-1 and Exhibit
-------------------------- ------- --- -------
A-2, there has not been any change in the assets or liabilities of the NMC
---
Business or the CMS Business that has had a Material Adverse Effect.
3.6 Undisclosed Liabilities. To the Knowledge of either Seller, since the
-----------------------
date of Exhibit A-1 and Exhibit A-2, neither Seller has incurred any liability
------- --- ------- ---
(whether known or unknown, whether absolute or contingent, whether liquidated or
unliquidated, whether accrued or unaccrued, and whether due or to become due, or
otherwise) that will be an Assumed Liability, except for (a) liabilities which
(i) have arisen after the date of Exhibit A-1 and Exhibit A-2 in the Ordinary
------- ---- ------ ---
Course of Business, (ii) are similar in nature and amount to the liabilities
which are set forth on Exhibit A-1 and Exhibit A-2, and (iii) have not been
------- --- ------- ---
subsequently discharged and
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(b) contractual liabilities incurred in the Ordinary Course of Business that are
not in the aggregate material.
3.7 Tax Matters.
-----------
(a) Each Seller has filed all Tax Returns that it was required to file
and, except where the failure to file Tax Returns or to pay Taxes would not have
a material adverse effect on the financial condition of the NMC Business, taken
as a whole, or the CMS Business, taken as a whole, each Seller has paid all
Taxes that are shown to be due on any such Tax Returns.
(b) There are no liens for Taxes (other than for current Taxes not yet
due and payable) on the Acquired Assets.
3.8 Ownership and Condition of Assets.
---------------------------------
(a) Except as set forth in Section 3.8(a) of the Disclosure Schedule,
the Sellers are the true and lawful owners of, and have good and marketable
title to, all of the Acquired Assets, free and clear of all Security Interests.
Upon execution and delivery by the Sellers to the Buyer of the instruments of
conveyance referred to in Sections 2.4(b)(iii) and 2.4(b)(v), the Buyer will
become the true and lawful owner of, and will receive good and marketable title
to, the Acquired Assets, free and clear of all Security Interests.
(b) The tangible Acquired Assets have been maintained in accordance
with normal industry practice, are in good operating condition and repair
(subject to normal wear and tear) and are suitable for the purposes for which
they presently are used.
(c) Section 3.8(c) of the Disclosure Schedule lists (i) all Acquired
Assets owned by either Seller which are fixed assets (within the meaning of
GAAP), indicating the cost, accumulated book depreciation (if any) and the net
book value of each such fixed asset as of the date of Exhibit A-1 and Exhibit A-
------- --- ------- -
2 and (ii) all other Acquired Assets owned by either Seller of a tangible nature
-
(other than inventories) whose book value exceeds $10,000.
3.9 Intellectual Property.
---------------------
(a) The Sellers own or have the right to use all Intellectual Property
used in the operation of the NMC Business or the CMS Business or necessary for
the operation of the NMC Business or the CMS Business as presently conducted.
Upon execution and delivery by the Sellers to the Buyer of the instruments of
conveyance
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referred to in Sections 2.4(b)(iii) and 2.4(b)(v), each such item of
Intellectual Property owned by either Seller will be owned by the Buyer
immediately following the Closing, and each such item of Intellectual Property
available for use by either Seller will be available for use by the Buyer on
identical terms and conditions immediately following the Closing. Each Seller
has taken reasonable measures to protect the proprietary nature of each item of
Intellectual Property, and to maintain in confidence all trade secrets and
confidential information, that it owns or uses in connection with the NMC
Business or the CMS Business. No other person or entity has any rights to any of
the Intellectual Property used in the NMC Business or the CMS Business (except
pursuant to agreements or licenses specified in Section 3.9(c) or 3.9(d) of the
Disclosure Schedule or not required to be listed in such sections of the
Disclosure Schedule), and, to the Knowledge of either Seller, no other person or
entity is infringing, violating or misappropriating any of the Intellectual
Property used in the NMC Business or the CMS Business.
(b) To the Knowledge of either Seller, the business, operations and
activities of the NMC Business and the CMS Business do not infringe or violate,
or constitute a misappropriation of, any Intellectual Property rights of any,
other person or entity (including, without limitation, either Seller or any
Affiliate of either Seller). Neither Seller has received since April 1, 1998
any complaint, claim or notice alleging any such infringement, violation or
misappropriation.
(c) Section 3.9(c) of the Disclosure Schedule identifies each patent
or trademark registration which has been issued to or is owned by either Seller
with respect to any Intellectual Property used in, relating to or arising out of
the NMC Business or the CMS Business, identifies each pending patent or
trademark application or application for registration which either Seller has
made or which either Seller owns with respect to any Intellectual Property used
in, relating to or arising out of the NMC Business or the CMS Business and
identifies each license or other agreement pursuant to which either Seller has
granted any rights to any third party with respect to any such Intellectual
Property. Each Seller has delivered to the Buyer correct and complete copies of
all such licenses and agreements (as amended to date) and have made available to
the Buyer correct and complete copies of all other written documentation
evidencing ownership of, and any claims or disputes relating to, each such item,
as well as all patents and trademark registrations and applications. With
respect to each item of Intellectual Property that either Seller owns:
(i) such Seller possesses all right, title and interest in and to
such item;
(ii) such item is not subject to any outstanding judgment, order,
decree, stipulation or injunction; and
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(iii) neither Seller has agreed to indemnify any person or
entity for or against any infringement, misappropriation or other conflict with
respect to such item.
(d) Section 3.9(d) of the Disclosure Schedule identifies each item of
Intellectual Property (other than commercially available software generally
available to the public and Intellectual Property owned by any customer of
either Seller that is used solely in connection with providing services to such
customers, which is not listed in Section 3.9(d) of the Disclosure Schedule but
with respect to which the representations set forth below in this Section 3.9(d)
are true) used by either Seller in the operation of the NMC Business or the CMS
Business or that either Seller plans to use in connection therewith in the
future, that is owned by a party other than the party using it. The Sellers
have supplied the Buyer with correct and complete copies of all licenses,
sublicenses or other agreements (as amended to date) pursuant to which the
Sellers use such Intellectual Property, all of which are listed on Section
3.9(d) of the Disclosure Schedule. With respect to each such item of
Intellectual Property:
(i) to the Knowledge of each Seller, the license, sublicense or
other agreement covering such item is legal, valid, binding, enforceable and in
full force and effect;
(ii) such license, sublicense or other agreement is assignable by
the appropriate Seller to the Buyer without the consent or approval of, or any
payment to, any party, and such license, sublicense or other agreement will
continue to be legal, valid, binding, enforceable and in full force and effect
without acceleration immediately following the Closing in accordance with the
terms thereof as in effect prior to the Closing;
(iii) neither Seller, nor to the Knowledge of either Seller, any
other party is in material breach or default thereunder, and no event has
occurred which with notice or lapse of time would constitute a material breach
or default or permit termination, modification or acceleration thereunder;
(iv) to the Knowledge of either Seller, the underlying item of
Intellectual Property is not subject to any outstanding judgment, order, decree,
stipulation or injunction; and
(v) neither Seller has agreed to indemnify any person or entity
for or against any interference, infringement, misappropriation or other
conflict with respect to such item .
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3.10 Contracts. The Sellers have delivered to the Buyer a correct and
---------
complete copy of each written Assigned Contract listed on Schedule 1.2(c) (each
-------- ------
as amended to date) and a description of each oral Assigned Contract listed on
Schedule 1.2(c). With respect to each written arrangement so listed, except as
-------- ------
set forth in Section 3.10 of the Disclosure Schedule: (i) the written
arrangement is legal, valid, binding and enforceable and in full force and
effect with respect to the appropriate Seller and, to the Knowledge of such
Seller, with respect to each other party thereto; (ii) the written arrangement
is assignable by the appropriate Seller to the Buyer (or such Seller may enter
into a subcontracting arrangement with the Buyer with regard to such written
arrangement) without the consent or approval of any party; and (iii) neither
Seller, nor to the Knowledge of either Seller, any other party thereto is in
material breach or default, and no event has occurred which with notice or lapse
of time would constitute a material breach or default or permit termination,
modification or acceleration, under the written arrangement, nor is there any
dispute between the parties thereto.
3.11 Accounts Receivable; Contracts in Progress. All Accounts Receivable
------------------------------------------
reflected on the Financial Statements are valid receivables arising from
services rendered in the Ordinary Course of Business. A report showing the
aging of all Accounts Receivable is attached as Section 3.11 of the Disclosure
Schedule. All Accounts Receivable reflected in the financial or accounting
records of the NMC Business or the CMS Business that have arisen since the date
of the Financial Statements are valid receivables arising from services rendered
in the Ordinary Course of Business. For purposes of this Section 3.11, a "valid
receivable" is a receivable in respect of which the amounts so billed are
consistent with the Sellers' billing policies. As to each Contract in Progress
as of the date of this Agreement which contemplates the payment of amounts in
excess of $50,000, Section 3.11 of the Disclosure Schedule sets forth a
reasonable description of such Contracts in Progress.
3.12 Employees.
---------
(a) The Sellers have previously provided to the Buyer a list of all
employees of the NMC Business or the CMS Business as of April 30, 1999 and their
rates of compensation. To the Knowledge of either Seller, no employee of either
Seller involved in the NMC Business or the CMS Business intends not to accept
employment with the Buyer. Except as set forth in Section 3.12(a) of the
Disclosure Schedule, neither Seller has any employment or consulting agreements
that are not terminable at will without penalty. Neither the execution and
delivery of this Agreement nor the consummation of the transactions contemplated
hereby will trigger or otherwise result in any obligation of either Seller to
pay severance or related costs under any employment or consulting agreement.
-24-
(b) For purposes of this Agreement, the term "employee" shall be
construed to include sales agents and other independent contractors who spend a
majority of their working time in connection with the NMC Business or the CMS
Business.
3.13 Employee Benefits.
-----------------
(a) Section 3.13(a) of the Disclosure Schedule contains a complete and
accurate list of all Employee Benefit Plans maintained or contributed to by or
on behalf of either Seller or any ERISA Affiliate. Complete and accurate copies
of all Employee Benefit Plans which have been reduced to writing have been made
available to the Buyer, and the Sellers have made available to the Buyer written
summaries of any such plans which have not been reduced to writing.
(b) The Internal Revenue Service has issued a favorable determination
letter with respect to the qualification of each of the Employee Benefit Plans
which is an "employee pension benefit plan" as such term is defined in Section
3(2) of ERISA (collectively, the "Retirement Plans") and any corresponding trust
intended to qualify under Sections 401(a) and 501(a) of the Code. No such
determination letter has been revoked and no such revocation has been
threatened, and nothing has occurred since the date of each such most recent
determination letter that could reasonably be expected to cause the relevant
Retirement Plan or trust to lose such qualification or exemption.
(c) No Employee Benefit Plan is subject to Title IV of ERISA and
neither Seller is subject to any liability to the PBGC for any termination of
any Employee Benefit Plan. Neither Seller nor any ERISA Affiliate contributes
to or has an obligation to contribute to, or has at any time within six years
prior to the Closing Date contributed to or had an obligation to contribute to,
a "multiemployer plan" as defined in Section 4001(a)(3) of ERISA and neither
Seller reasonably expects to incur any liability with respect to any such
multiemployer plan.
(d) No Employee Benefit Plan provides benefits after termination of
employment to any current or former employee of either Seller involved in the
NMC Business or the CMS Business (or to any beneficiary of any such current or
former employee), including but not limited to retiree health coverage and
deferred compensation, but excluding continuation of health coverage required to
be continued under Section 4980B of the Code and insurance conversion privileges
under state law.
-25-
(e) Section 3.13(e) of the Disclosure Schedule discloses each: (i)
agreement with any director, executive officer or other employee of either
Seller involved in the NMC Business or the CMS Business with an annual salary
including bonus in excess of $75,000 (A) the benefits of which are contingent,
or the terms of which are materially altered, upon the occurrence of a
transaction involving the NMC Business or the CMS Business of the nature of any
of the transactions contemplated by this Agreement, (B) providing any term of
employment or compensation guaranty, or (C) providing severance benefits or
other benefits after the termination of employment of such director, executive
officer or employee; (ii) agreement, plan or arrangement under which any person
may receive payments from either Seller that may be subject to the tax imposed
by Section 4999 of the Code or included in the determination of such person's
"parachute payment" under Section 280G of the Code; and (iii) agreement or plan
binding either Seller, including without limitation any Employee Benefit Plan,
any of the benefits of which will be increased, or the vesting of the benefits
of which will be accelerated, by the occurrence of any of the transactions
contemplated by this Agreement or the value of any of the benefits of which will
be calculated on the basis of any of the transactions contemplated by this
Agreement.
3.14 Environmental Matters.
---------------------
(a) Each Seller has complied in all material respects with all
Environmental Laws. There is no pending or, to the Knowledge of either Seller,
threatened civil or criminal litigation, written notice of violation, formal
administrative proceeding, or investigation, inquiry or information request by
any Governmental Entity, relating to any Environmental Law applicable to either
Seller, the Acquired Assets, the NMC Business or the CMS Business.
(b) There have been no material releases of any Materials of
Environmental Concern into the environment at (i) any parcel of real property or
any facility formerly or currently owned, leased, operated or controlled by
either Seller or (ii) to the Knowledge of either Seller, any facility to which
either Seller has delivered products for manufacturing, processing, packaging or
distribution. Neither Seller is aware of any releases of Materials of
Environmental Concern at parcels of real property or facilities other than those
owned, leased, operated or controlled by either Seller that could reasonably be
expected to have a material impact on such real property or facilities resulting
in any liability to either Seller.
(c) Set forth in Section 3.14(c) of the Disclosure Schedule is a list
of all environmental reports, site surveys, subsurface studies, investigations
and audits (whether conducted by or on behalf of either Seller or a third party,
and whether done at the initiative of either Seller or, if known to either
Seller, directed by a
-26-
Governmental Entity or other third party) relating to premises currently or
previously owned, leased or operated by either Seller at which the NMC Business
or the CMS Business has been or is currently conducted. Complete and accurate
copies of each such report, or the results of each such investigation or audit,
have been provided to the Buyer.
(d) Set forth in Section 3.14(d) of the Disclosure Schedule is a list
of all of the solid and hazardous waste transporters and treatment, storage and
disposal facilities that have been utilized by either Seller. Neither Seller is
aware of any environmental liability of any such transporter or facility.
3.15 Certain Business Relationships With Affiliates. Neither Seller (with
----------------------------------------------
respect to its operations other than the NMC Business or the CMS Business) nor
any Affiliate of either Seller (a) has any claim or cause of action against the
Acquired Assets, or (b) owes any money in connection with the NMC Business or
the CMS Business to either Seller. Section 3.15 of the Disclosure Schedule
describes any transaction or relationships between either Seller (with respect
to its operations other than the NMC Business or the CMS Business) and its
Affiliates, on the one hand, and the NMC Business or the CMS Business, on the
other hand.
3.16 Brokers' Fees. Neither Seller has any liability or obligation to pay
-------------
any fees or commissions to any broker or finder with respect to the transactions
contemplated by this Agreement.
3.17 Customers and Suppliers. Section 3.17 of the Disclosure Schedule sets
-----------------------
forth a list of each customer that accounted for more than 2% of the revenues of
either the CMS Business or the NMC Business during the last full fiscal year and
the amount of revenues accounted for by such customer during each such period.
Except as set forth on Section 3.17 of the Disclosure Schedule, no such customer
of the NMC Business or the CMS Business has indicated since January 1, 1998 that
it will, nor does either Seller have any reason to believe that any such
customer will terminate any of the Assigned Contracts. There are no suppliers
to the Business of significant goods or services with respect to which practical
alternative sources of supply, or comparable products, are not available on
comparable terms and conditions.
3.18 Real Property Leases. Section 3.18 of the Disclosure Schedule lists
--------------------
all real property leased or subleased to either Seller in connection with the
NMC
-27-
Business or the CMS Business. The Sellers have delivered to the Buyer correct
and complete copies of the leases and subleases (as amended to date) listed
therein. With respect to each such lease and sublease that is being assigned to
the Buyer:
(a) the lease or sublease is legal, valid, binding, enforceable
against the appropriate Seller and in full force and effect;
(b) except as set forth on Section 3.18(b) of the Disclosure Schedule,
each lease or sublease is assignable by the appropriate Seller to the Buyer
without the consent or approval of, or any payment to, any party; assuming the
Buyer complies with all of the provisions of each lease and sublease and
performs all of lessee's obligations thereunder, all such leases or subleases
will continue to be legal, valid, binding, enforceable and in full force and
effect immediately following the Closing in accordance with the terms thereof as
in effect immediately prior to the Closing; and the consummation of the
transactions contemplated herein will not conflict with, result in a violation
or breach of, or constitute a default under (or would result in a violation,
breach or default with the giving of notice or the passage of time or both) any
such lease or sublease;
(c) neither Seller nor, to the Knowledge of either Seller, any other
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) there are no material disputes, oral agreements or forbearance
programs to which either Seller is a party in effect as to the lease or
sublease;
(e) neither Seller has assigned, transferred, conveyed, mortgaged,
deeded in trust or encumbered any interest in the leasehold or subleasehold;
(f) all facilities leased or subleased thereunder are supplied with
utilities and other services necessary for the operation of said facilities; and
(g) none of such leases or subleases has been capitalized on the
Financial Statements.
3.19 Owned Real Property. Neither Seller owns any real property that is
-------------------
used in connection with the NMC Business or the CMS Business.
3.20 Disclosure. No representation or warranty by either Seller contained
----------
in this Agreement, and no statement contained in the Disclosure Schedule or any
other document, certificate or other instrument delivered to or to be delivered
by or on
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behalf of the Sellers pursuant to this Agreement contains any untrue statement
of a material fact or omits to state any material fact necessary, in light of
the circumstances under which it was or will be made, in order to make the
statements herein or therein not misleading. The Sellers have disclosed to the
Buyer all material information relating to the NMC Business or the CMS Business
and the transactions contemplated by this Agreement.
3.21 Investment Representation. Renaissance is acquiring the Shares and
-------------------------
the Note from the Buyer for its own account for investment and not with a view
to, or for sale in connection with, any distribution thereof, nor with any
present intention of distributing or selling the same; and, except as
contemplated by this Agreement and the agreements contemplated herein,
Renaissance has no present or contemplated agreement, undertaking, arrangement,
obligation, indebtedness or commitment providing for the disposition thereof.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer represents and warrants to the Sellers as follows:
4.1 Organization. The Buyer is a corporation duly organized, validly
------------
existing and in corporate and tax good standing under the laws of the State of
Delaware.
4.2 Capitalization. As of the date hereof, the authorized capital stock
--------------
of the Buyer consists of 9,684,060 shares of Buyer Common Stock, of which
8,338,411 shares are issued and outstanding, and 96,632 shares of preferred
stock, $0.01 par value per share, of which 96,632 shares have been designated as
Class A Preferred, of which 5,445 shares are issued or outstanding. All of the
issued and outstanding shares of Buyer Common Stock have been duly authorized
and validly issued and are fully paid and nonassessable. Except as set forth in
Section 4.2 of the Disclosure Schedule, (i) no subscription, warrant, option,
convertible security or other right (contingent or otherwise) to purchase or
acquire any shares of capital stock of the Buyer is authorized or outstanding,
(ii) the Buyer has no obligation (contingent or otherwise) to issue any
subscription, warrant, option, convertible security or other such right or to
issue or distribute to holders of any shares of its capital stock any evidences
of indebtedness or assets of the Buyer, (iii) the Buyer has no obligation
(contingent or otherwise) to purchase, redeem or otherwise acquire any shares of
its capital stock or any interest therein or to pay any dividend or make any
other distribution in respect thereof, and (iv) there are no outstanding or
authorized stock appreciation, phantom
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stock or similar rights with respect to the Buyer. All of the issued and
outstanding shares of capital stock of the Buyer have been offered, issued and
sold by the Buyer in compliance with applicable federal and state securities
laws.
4.3 Authority. The Buyer has all requisite power and authority to execute
---------
and deliver this Agreement and the Ancillary Agreements to which it is a party
and to perform its obligations hereunder and thereunder. The execution and
delivery of this Agreement and the Ancillary Agreements and the performance by
the Buyer of this Agreement and the Ancillary Agreements to which it is a party
and the consummation by the Buyer of the transactions contemplated hereby and
thereby have been duly and validly authorized by all necessary corporate action
on the part of the Buyer. This Agreement has been duly and validly executed and
delivered by the Buyer and constitutes, and each of the Ancillary Agreements to
which the Buyer is a party, upon its execution and delivery by the Buyer, will
constitute, a valid and binding obligation of the Buyer, enforceable against the
Buyer in accordance with its terms.
4.4 Noncontravention. Neither the execution and delivery by the Buyer of
----------------
this Agreement or the Ancillary Agreements, nor the consummation by the Buyer of
the transactions contemplated hereby or thereby, will, directly or indirectly
(with or without notice or lapse of time), (a) conflict with or violate any
provision of the charter or By-laws of the Buyer or any resolution adopted by
the board of directors or stockholders of the Buyer, (b) other than as required
to be disclosed by the Seller on the Disclosure Schedule, require on the part of
the Buyer any filing with, or permit, authorization, consent or approval of, any
Governmental Entity or give any Governmental Entity the right to challenge any
of the transactions contemplated by this Agreement or the Ancillary Agreements,
(c) conflict with, result in breach of, constitute a default under, result in
the acceleration of, create in any party any right to accelerate, terminate,
modify or cancel, or require any notice, consent or waiver under, any contract,
lease, sublease, license, sublicense, franchise, permit, indenture, agreement or
mortgage for borrowed money, instrument of indebtedness, Security Interest 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, or (d) violate any order, writ, injunction,
decree, statute, rule or regulation applicable to the Buyer or any of its
properties or assets.
4.5 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.
4.6 Issuance of Securities. The issuance, sale and delivery of the Note
----------------------
and the Shares in accordance with this Agreement, and the issuance of shares of
Buyer
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Common Stock issuable upon conversion of the Note have been, or will be on
or prior to the Closing, duly authorized by all necessary corporate action on
the part of the Buyer, and all shares of Buyer Common Stock have been duly
reserved for issuance. The Shares when so issued, sold and delivered against
payment therefor in accordance with the provisions of this Agreement and the
shares of Buyer Common Stock issuable upon conversion of the Note when issued
upon such conversion will be duly and validly issued, fully paid and
nonassessable.
4.7 Buyer Financial Statements. Attached as Schedule 4.7 are the
-------------------------- -------- ---
unaudited Balance Sheet, Statement of Operations and Statement of Cash Flows of
the Buyer dated as of December 31, 1998 (the "Buyer Financial Statements"). The
Buyer Financial Statements have been prepared from the books and records of the
Buyer in accordance with GAAP applied on a consistent basis throughout the
periods covered thereby and fairly present in all material respects the
financial condition, results of operations and cash flows of the Buyer as of the
respective dates thereof and for the periods referred to therein.
4.8 Undisclosed Liabilities. To the Knowledge of the Buyer, the Buyer has
-----------------------
no liability (whether known or unknown, whether absolute or contingent, whether
liquidated or unliquidated, whether accrued or unaccrued, and whether due or to
become due, or otherwise), except for liabilities reflected on the Buyer
Financial Statements or liabilities that have arisen after the date of the Buyer
Financial Statements in the Ordinary Course of Business.
ARTICLE V
PRE-CLOSING COVENANTS
5.1 Reasonable Efforts. Each party shall use its reasonable efforts to
------------------
take all actions and to do all things necessary, proper or advisable to
consummate the transactions contemplated by this Agreement.
5.2 Notices and Consents. The Sellers shall obtain, at their expense, all
--------------------
such waivers, permits, consents, approvals or other authorizations from third
parties and Governmental Entities, and effect all such registrations, filings
and notices with or to third parties and Governmental Entities, as may be
necessary or desirable in connection with the transactions contemplated by this
Agreement and the Ancillary Agreements.
5.3 HSR Act. Each party has, prior to the date hereof, filed any
-------
Notification and Report Forms and related material that it may be required to
file with the
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Federal Trade Commission and the Antitrust Division of the United States
Department of Justice under the HSR Act. Each party shall use its best efforts
to obtain an early termination of the applicable waiting period, and shall make
any further filings or submissions of information pursuant thereto that may be
necessary, proper or advisable. Notwithstanding any other provision in this
Agreement, the Buyer shall not be obligated to respond to formal requests for
additional information or documentary material pursuant to 16 C.F.R. 803.20
under the HSR Act except to the extent it elects to do so in its sole
discretion.
5.4 Operation of the Businesses. Except as contemplated by this
---------------------------
Agreement, during the period from the date of this Agreement to the Closing, the
Sellers shall conduct the operations of the NMC Business and the CMS Business
only in the Ordinary Course of Business and in compliance with all applicable
Laws and Regulations and, to the extent consistent therewith, use all reasonable
efforts to preserve intact the current business organization of the NMC Business
and the CMS Business, keep the physical assets of the NMC Business and the CMS
Business in good working condition, keep available the services of the current
officers and employees of the NMC Business or the CMS Business and preserve the
relationships of each Seller with its customers, suppliers and others having
business dealings with the NMC Business or the CMS Business. Without limiting
the generality of the foregoing, prior to the Closing, neither Seller shall take
any of the following actions with respect to the NMC Business or the CMS
Business without the prior written consent of the Buyer:
(a) acquire, sell, lease, encumber or dispose of any assets or any
shares or other equity interests in or securities of any corporation,
partnership, association or other business organization or division thereof,
other than purchases and sales of assets in the Ordinary Course of Business;
(b) create, incur or assume any debt not currently outstanding
(including obligations in respect of capital leases), other than in the Ordinary
Course of Business;
(c) assume, guaranty, endorse or otherwise become liable or
responsible (whether directly, contingently or otherwise) for the obligations of
any other person;
(d) make any loans, advances or capital contributions to, or
investments in, any other person;
(e) enter into, adopt or amend any Employee Benefit Plan or any
employment or severance agreement or arrangement of the type described in
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Section 3.16 or increase in any manner the compensation or fringe benefits of,
or materially modify the employment terms of, its directors, officers or
employees, generally or individually, or pay any benefit not required by the
terms in effect on, the date hereof of any existing Employee Benefit Plan or,
except in the Ordinary Course of Business, hire any new employees or
consultants;
(f) change its accounting methods, principles or practices, except
insofar as may be required by a generally applicable change in GAAP, or make any
new elections with respect to Taxes affecting the Acquired Assets or any changes
in current elections with respect to Taxes affecting the Acquired Assets after
the date hereof;
(g) discharge or satisfy any Security Interest or pay any obligation
or liability other than in the Ordinary Course of Business;
(h) mortgage or pledge any property or assets or subject any such
assets to any Security Interest;
(i) sell, assign, transfer, license or sublicense any Intellectual
Property, other than in the Ordinary Course of Business;
(j) enter into, amend, terminate, take or omit to take any action that
would constitute a violation of or default under, or waive any rights under, any
contract or agreement listed in Section 3.10 of the Disclosure Schedule;
(k) enter into any written arrangement (including written agreements)
which creates a liability on the part of either Seller in excess of $25,000;
(l) make or commit to make any capital expenditure in excess of
$10,000 per item or total capital expenditures in excess of $50,000 in the
aggregate;
(m) take any action or fail to take any action permitted by this
Agreement with the knowledge that such action or failure to take action would
result in (i) any of the representations and warranties of either Seller set
forth in this Agreement becoming untrue or (ii) any of the conditions to the
Closing set forth in Article VI not being satisfied;
(n) fail to take any action reasonably necessary to preserve the
validity of any Intellectual Property or Permit; or
(o) agree in writing or otherwise to take any of the foregoing
actions.
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In addition, during the period from the date of this Agreement to the
Closing, each Seller shall (i) accept customer orders in the Ordinary Course of
Business and (ii) cooperate with the Buyer in communicating with suppliers and
customers to accomplish the transfer of the Acquired Assets to, and the purchase
of the NMC Business and the CMS Business by, the Buyer on the Closing Date.
5.5 Full Access. Each Seller shall permit representatives of the Buyer to
-----------
have full access to all premises, properties, financial, Tax and accounting
records, contracts, other records and documents and personnel of or pertaining
to the NMC Business or the CMS Business and to conduct such tests and
inspections as may be reasonable or appropriate; provided, however, that such
access shall be allowed only during normal business hours and with reasonable
advance notice and in such manner as not to interfere unreasonably with the
normal business operations of the NMC Business or the CMS Business. Prior to
the Closing, the Sellers shall also furnish to the Buyer or its representatives
such information as the Buyer may request in connection with any review,
investigation or examination of the books and records, accounts, contracts,
properties, assets, operations and facilities of or relating to the NMC Business
or the CMS Business. In connection therewith, the Sellers shall direct and
authorize their independent public accountants to make available to the Buyer
and to the independent public accountants representing the Buyer all working
papers pertaining to the examination and audit by such accountants of the NMC
Business or the CMS Business.
5.6 Notice of Breaches; Updates.
---------------------------
(a) The Sellers shall promptly deliver to the Buyer written notice of
any event or development that would (i) render any statement, representation or
warranty of either Seller in this Agreement (including exceptions set forth in
the Disclosure Schedule) inaccurate or incomplete in any material respect, or
(ii) constitute or result in a breach by either Seller of, or a failure by
either Seller to comply with, any agreement or covenant in this Agreement
applicable to either Seller. No such disclosure shall be deemed to avoid or
cure any such misrepresentation or breach; provided, however, that the Buyer's
only remedy with respect thereto shall be to exercise its right, if any, to
terminate this Agreement pursuant to Section 9.1.
(b) The Buyer shall promptly deliver to the Sellers written notice of
any event or development that would (i) render any statement, representation or
warranty of the Buyer in this Agreement inaccurate or incomplete in any material
respect, or (ii) constitute or result in a breach by the Buyer of, or a failure
by the Buyer to comply with, any agreement or covenant in this Agreement
applicable to the
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Buyer. No such disclosure shall be deemed to avoid or cure any such
misrepresentation or breach.
(c) The Sellers shall promptly notify the Buyer of any lawsuits,
claims, proceedings, investigations or inquiries against the NMC Business or the
CMS Business, the Sellers or any of the directors or officers of the Sellers,
between the date of this Agreement and the Closing Date, which (i) are commenced
or, to the Knowledge of either Seller, threatened and may affect the
transactions contemplated by this Agreement, or (ii) are commenced or, to the
Knowledge of either Seller, threatened and may have a Material Adverse Effect.
5.7 Exclusivity. The Sellers shall not, and shall cause their respective
-----------
Affiliates and each of their respective officers, directors, employees,
representatives and agents not to, directly or indirectly, (a) encourage,
solicit, initiate, engage or participate in discussions or negotiations with any
person or entity (other than the Buyer) concerning any merger, consolidation,
sale of assets, recapitalization or other business combination including the NMC
Business, the CMS Business or the Acquired Assets or any material portion
thereof, or (b) provide any, non-public information concerning the NMC Business
or the CMS Business to any person or entity (other than the Buyer). The Sellers
shall immediately notify the Buyer of any inquiries, discussions or negotiations
of the nature described in the first sentence of this Section 5.7.
5.8 Bulk Transfers Law. The Buyer and each of the Sellers hereby waives
------------------
compliance with the provisions of the bulk transfers statute in each of the
jurisdictions, if any, where such compliance would be required in connection
with the transactions contemplated by this Agreement (subject to the indemnity
provided for in Article VIII).
ARTICLE VI
CONDITIONS TO CLOSING
6.1 Conditions to Obligations 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 the satisfaction, or waiver by the Buyer, of the following
conditions:
(a) the Sellers shall have, at their expense, (i) except as
contemplated by Section 2.9. obtained all of the waivers, permits, consents,
approvals or other authorizations from third parties and Governmental Entities,
and effected all of the registrations, filings and notices with or to
Governmental Entities, as may be
-35-
necessary to permit the Sellers to consummate the transactions contemplated by
this Agreement, and (ii) obtained all other waivers, permits, consents,
approvals or other authorizations and effected all other registrations, filings
and notices necessary or desirable in connection with the transactions
contemplated by this Agreement, except in case of clause (ii) for any which if
not obtained or effected would not have a material adverse effect on the right
of the Buyer to own, operate or control the Acquired Assets or conduct the NMC
Business or the CMS Business following the Closing or on the ability of the
parties to consummate the transactions contemplated by this Agreement,
(b) the representations and warranties of the Sellers set forth in
Article III shall be true and correct in all material respects, except for
representations and warranties already qualified by materiality, which shall be
true and correct as stated, as of the Closing as if made as of the Closing,
except for representations and warranties made as of a date, which shall be true
and correct in all material respects, except for representations and warranties
already qualified by materiality, which shall be true and correct as stated, as
of such date;
(c) the Sellers shall have performed or complied in all material
respects with their respective agreements and covenants required to be performed
or complied with under this Agreement as of or prior to the Closing;
(d) no action, suit or proceeding shall be pending before any
Governmental Entity wherein an unfavorable judgment, order, decree, stipulation
or injunction would (i) prevent consummation of any of the transactions
contemplated by this Agreement, (ii) cause any of the transactions contemplated
by this Agreement to be rescinded following consummation, or (iii) affect
adversely the right of the Buyer to own, operate or control any of the Acquired
Assets or to conduct the NMC Business or the CMS Business as currently conducted
and as presently proposed to be conducted following the Closing, and no such
judgment, order, decree, stipulation or injunction shall be in effect;
(e) the Sellers shall have delivered to the Buyer a certificate
(without qualification as to knowledge or materiality or otherwise) to the
effect that each of the conditions specified in clauses (a) through (d) of this
Section 6.1 is satisfied in all respects;
(f) the Buyer shall have received from Ropes & Xxxx, counsel to the
Sellers, an opinion dated as of the Closing Date substantially in a form
attached hereto as Exhibit G;
------- -
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(g) the Buyer and the Sellers shall have entered into a Services and
Facilities Agreement in a form mutually agreeable to the parties hereto;
(h) all waiting periods applicable to this Agreement and the
transactions contemplated hereby under the HSR Act shall have expired or been
earlier terminated;
(i) the Buyer shall have received any and all waivers, permits,
consents, approvals or other authorizations from third parties and Governmental
Entities, including all registrations, filings and notices with or to
Governmental Entities, as may be necessary to permit the Buyer to consummate the
transactions contemplated by this Agreement;
(j) the Buyer shall have received from the Sellers and their
respective officers all customary closing certificates as it shall have
requested;
(k) all actions to be taken by the Sellers in connection with the
consummation of the transactions contemplated hereby and all certificates,
opinions, instruments and other documents required to effect the transactions
contemplated hereby shall be reasonably satisfactory in form and substance to
the Buyer;
(l) NMC shall have received the consent of NationsBank/Bank of America
to consummate the transactions contemplated hereby and the release of American
National Bank & Trust Company of Chicago relating to the Acquired Assets; and
(m) Renaissance shall have executed and delivered (i) the Agreement to
be Bound by Registration Agreement among Renaissance, GTCR Fund VI, L.P., ZC
Corp., GTCR VI Executive Fund, L.P. and certain other parties thereto
(collectively, the "GTCR Parties") (the "Registration Joinder") and (ii) the
Agreement to be Bound by Stockholders Agreement among Renaissance and the GTCR
Parties (the "Stockholder Joinder").
6.2 Conditions to Obligations of the Sellers. The obligations of the
----------------------------------------
Sellers to consummate the transactions to be performed by them connection with
the Closing is subject to the satisfaction, or waiver by the Sellers, of the
following conditions:
(a) the Buyer shall have, at its expense, (i) obtained all of the
waivers, permits, consents, approvals or other authorizations from third parties
and Governmental Entities, and effected all of the registrations, filings and
notices with or to Governmental Entities, as may be necessary to permit the
Buyer to consummate the transactions contemplated by this Agreement, and (ii)
obtained all other waivers,
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permits, consents, approvals or other authorizations and effected all other
registrations, filings and notices necessary or desirable in connection with the
transactions contemplated by this Agreement, except in the case of clause (ii)
for any waivers, permits, consents, approvals or authorizations in whose absence
the Closing could be consummated without materially adversely affecting the
Sellers;
(b) the representations and warranties of the Buyer set forth in
Article IV shall be true and correct in all material respects, except for
representations and warranties already qualified by materiality, which shall be
true and correct as stated, as of the Closing as if made as of the Closing,
except for representations and warranties made as of a specific date, which
shall be true and correct in all material respects, except for representations
and warranties already qualified by materiality, which shall be true and correct
as stated, as of such date;
(c) the Buyer shall have performed or complied with its agreements and
covenants required to be performed or complied with under this Agreement as of
or prior to the Closing;
(d) no action, suit or proceeding shall be pending before any
Governmental Entity wherein an unfavorable judgment, order, decree, stipulation
or injunction would (i) prevent consummation of any of the transactions
contemplated by this Agreement or (ii) cause any of the transactions
contemplated by this Agreement to be rescinded following consummation, and no
such judgment, order, decree, stipulation or injunction shall be in effect;
(e) the Buyer shall have delivered to the Sellers a certificate
(without qualification as to knowledge or materiality or otherwise) to the
effect that each of the conditions specified in clauses (a) through (c) of this
Section 6.2 is satisfied in all respects;
(f) the Sellers shall have received from Xxxx and Xxxx LLP, special
counsel to the Buyer, an opinion dated as of the Closing Date substantially in
the form attached hereto as Exhibit H;
------- -
(g) the Buyer and the Sellers shall have entered into a Services and
Facilities Agreement in a form mutually agreeable to the parties hereto;
(h) all waiting periods applicable to this Agreement and the
transactions contemplated hereby under the HSR Act shall have expired or been
earlier terminated;
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(i) the Sellers shall have received from the Buyer and the Buyer's
officers all customary closing certificates as it shall have requested;
(j) the GTCR Parties shall have executed and delivered (i) the
Registration Joinder and (ii) the Stockholder Joinder; and
(k) all actions to be taken by the Buyer in connection with the
consummation of the transactions contemplated hereby and all certificates,
opinions, instruments and other documents required to effect the transactions
contemplated hereby shall be reasonably satisfactory in form and substance to
the Sellers.
ARTICLE VII
POST-CLOSING COVENANTS
7.1 Proprietary Information. From and after the Closing, each Seller
-----------------------
shall hold in confidence, and shall cause all of its Affiliates to hold in
confidence, all knowledge, information and documents of a confidential nature or
not generally known to the public with respect to the NMC Business or the CMS
Business, the Buyer or the Buyer's business (including without limitation the
financial information, Intellectual Property, technical information or data
relating to the materials, products or components sold, or the services offered,
in connection with the NMC Business or the CMS Business and names of customers
of the NMC Business or the CMS Business) and shall not disclose or make use of
the same without the written consent of the Buyer, except to the extent that
such knowledge, information or documents shall have become public knowledge
other than through a breach of this Agreement by either Seller or any of its
officers, employees, agents or representatives.
7.2 Solicitation and Hiring. For a period of one year after the Closing
-----------------------
Date, each Seller shall not and shall cause its Affiliates not to, either
directly or indirectly as a stockholder, investor, partner, director, officer,
employee or otherwise, (a) solicit or attempt to induce any Restricted Employee
to terminate his employment with the Buyer or any Affiliate of the Buyer or (b)
hire or attempt to hire any Restricted Employee.
7.3 Non-Competition; Referral of Customers.
--------------------------------------
(a) For a period of one year after the Closing Date, each Seller shall
not, and shall cause its Affiliates not to, directly or indirectly, (i) perform
any implementations of Vantive customer management relationship prepackaged
software, or (ii) for any business or entity that has been a customer of NMC at
a
-39-
time since January 1, 1998, perform services that are substantially similar to
those performed by NMC for that customer.
(b) Each Seller, on its own behalf and on behalf of its Affiliates,
agrees that the duration and geographic scope of the noncompetition provision
set forth in this Section 7.3 are reasonable. In the event that any court
determines that the duration or the geographic scope, or both, are unreasonable
and that such provision is to that extent unenforceable, the parties agree that
the provision shall remain in full force and effect for the greatest time period
and in the greatest area that would not render it unenforceable. The parties
intend that this noncompetition provision shall be deemed to be a series of
separate covenants, one for each and every county of each and every state of the
United States of America and each and every political subdivision of each and
every country outside the United States of America where this provision is
intended to be effective.
(c) Each Seller shall notify its Affiliates in writing promptly after
the Closing that the NMC Business and the CMS Business have been sold to the
Buyer, and such notice shall inform such Affiliates of their obligations under
this Section 7.3.
7.4 Sharing of Data.
---------------
(a) Each Seller shall have the right for a period of seven years
following the Closing Date to have reasonable access to such books, records and
accounts, including financial and Tax information, correspondence, production
records, employment records and other records that are transferred to the Buyer
pursuant to the terms of this Agreement for the limited purposes of concluding
their involvement in the NMC Business or the CMS Business, as conducted by such
Seller prior to the Closing Date and for complying with their respective
obligations under applicable securities, Tax, environmental, employment or other
Laws and Regulations. The Buyer shall have the right for a period of seven
years following the Closing Date to have reasonable access to (i) those books,
records and accounts, including financial and Tax information, correspondence,
production records, employment records and other records that are retained by
either Seller pursuant to the terms of this Agreement, and (ii) the workpapers
of Renaissance's accountants relating to the operation of the NMC Business or
the CMS Business prior to the Closing Date, in each case to the extent that any
of the foregoing is needed by the Buyer in order to comply with its obligations
under applicable securities, Tax, environmental, employment or other Laws and
Regulations. Neither the Buyer nor either of the Sellers shall destroy any such
books, records or accounts retained by it without first providing the other
party with the opportunity to obtain or copy such books, records or accounts.
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(b) Without limiting the generality of the provisions of paragraph (a)
above, the Sellers shall make available to the Buyer such financial information
and reasonable assistance with respect to the NMC Business and the CMS Business,
including without limitation providing to the Buyer and its authorized
representatives reasonable access to the workpapers of Renaissance's accountants
relating to the operation of the NMC Business or the CMS Business prior to the
Closing Date, as is reasonably necessary for the Buyer to prepare on a timely
basis the financial statements required in connection with the preparation of a
registration statement under the Securities Act of 1933, as amended.
(c) In addition to all files and documents required to be provided
pursuant to this Agreement or the Ancillary Agreements, promptly upon request by
the Buyer made at any time following the Closing Date, the appropriate Seller
shall authorize the release to the Buyer of all files pertaining to the Acquired
Assets or the Business held by any federal, state, county or local authorities,
agencies or instrumentalities.
7.5 Cooperation in Litigation. From and after the Closing Date, each
-------------------------
party shall fully cooperate with the other in the defense or prosecution of any
litigation or proceeding already instituted or which may be instituted hereafter
against or by such other party relating to or arising out of the conduct of the
NMC Business or the CMS Business prior to or after the Closing Date (other than
litigation among the Sellers, the Buyer and/or their respective Subsidiaries or
Affiliates arising out of the transactions contemplated by this Agreement or the
Ancillary Agreements). The party requesting such cooperation shall pay the
reasonable out-of-pocket expenses incurred in providing such cooperation
(including legal fees and disbursements) by the party providing such cooperation
and by its officers, directors, employees and agents, but shall not be
responsible for reimbursing such party or its officers, directors, employees and
agent for their time spent in such cooperation.
7.6 Collection of Accounts Receivable and Contracts in Progress.
-----------------------------------------------------------
(a) The Sellers shall forward promptly to the Buyer any monies, checks
or instruments received by either of them after the Closing Date with respect to
the Accounts Receivable and the Contracts in Progress. The Sellers hereby
authorize the Buyer to open any and all mail addressed to either Seller (if
delivered to the Buyer) received on or after the Closing Date and hereby grants
to the Buyer a power of attorney to endorse and cash any checks or instruments
payable or endorsed to either Seller or its respective order and received by the
Buyer with respect to the Acquired Assets, the NMC Business or the CMS Business.
The Sellers shall provide to the Buyer such reasonable assistance as the Buyer
may request with respect to the collection of any such Accounts Receivable and
Contracts in Progress, provided the
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Buyer pays the reasonable out-of-pocket expenses of the Sellers and their
respective officers, directors and employees incurred in providing such
assistance. From and after the Closing, the Sellers shall refer all customer
inquiries relating to Accounts Receivable or Contracts in Progress to the Buyer.
(b) Any Account Receivable existing as of the Closing Date which does
not appear in the Initial Closing Statement pursuant to Section 2.6(a) or as to
which either Seller pays the Buyer Damages in an amount equal to the face amount
of such Account Receivable pursuant to Section 8.1 because of a breach of
Section 3.11 shall promptly be assigned by the Buyer to the appropriate Seller
(without recourse) and any funds thereafter collected by the Buyer with respect
to such Accounts Receivable shall be paid by the Buyer to the appropriate
Seller.
7.7 Employees. Effective as of the Closing, the Buyer shall offer
---------
employment to each employee employed primarily in the conduct of the NMC
Business or the CMS Business (except for those designated on Schedule 7.7) who
----
is actively at work as of the Closing, terminable at the will of the Buyer or as
otherwise agreed to between the Buyer and such employee. Except as otherwise
specifically required by applicable law, the Buyer shall not have any obligation
to employ or offer employment to any employee of the NMC Business or the CMS
Business other than as provided in the preceding sentence. The Buyer shall have
complete discretion to change any of the terms or conditions of employment,
compensation or benefits relating to any such employee at any time. The parties
hereto do not intend to create any third-party beneficiary rights respecting any
employee as a result of the provisions herein and specifically hereby negate any
such intention. Each Seller hereby consents to the hiring of such employees by
the Buyer and waives, to the extent necessary to allow the employment by the
Buyer of such employees, any claims or rights such Seller may have against the
Buyer or any such employee under any noncompetition, confidentiality or
employment agreement.
7.8 Employee Notices. The Sellers shall make such notices to employees as
----------------
shall be required by any applicable Laws and Regulations or by any agreements
(including any notices required to be given to any union, works council or
similar representative body).
7.9 Use of Name. Each Seller agrees, on its own behalf and on behalf of
-----------
its Subsidiaries and Affiliates, from and after the Closing, not to use any
trademark or name previously or currently used in the NMC Business or the CMS
Business, or any derivation thereof.
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ARTICLE VIII
INDEMNIFICATION
8.1 Indemnification by the Sellers. The Sellers shall jointly and
------------------------------
severally indemnify the Buyer in respect of, and hold the Buyer harmless
against, any and all Damages incurred or suffered by the Buyer or any Affiliate
thereof resulting from, relating to, constituting or arising out of:
(a) any misrepresentation or breach of warranty by either Seller
contained in this Agreement or any of the Ancillary Agreements;
(b) any failure to perform any covenant or agreement of either Seller
contained in this Agreement or any of the Ancillary Agreements; or
(c) any Retained Liabilities (including all reasonable fees and
expenses incurred by the Buyer in determining that the underlying claim or
liability is a Retained Liability).
8.2 Indemnification by the Buyer. The Buyer shall indemnify the Sellers
----------------------------
in respect of, and hold the Sellers harmless against, any and all Damages
incurred or suffered by any of the Sellers or any Affiliate thereof resulting
from, relating to, constituting or arising out of:
(a) any misrepresentation or breach of warranty by the Buyer contained
in this Agreement or any of the Ancillary Agreements;
(b) any failure to perform any covenant or agreement of the Buyer
contained in this Agreement or any of the Ancillary Agreements; or
(c) any Assumed Liabilities (including all reasonable fees and
expenses incurred by the Seller in determining that the underlying claim or
liability is an Assumed Liability).
8.3 Claims for Indemnification. Whenever any claim shall arise for
--------------------------
indemnification hereunder, the Indemnified Party shall promptly notify (in
accordance with Section 10.7) the Indemnifying Party of the claim and, when
known, the facts constituting the basis for such claim; provided, however, that
no delay on the part of the Indemnified Party in notifying the Indemnifying
Party shall relieve the Indemnifying Party from any liability or obligation
hereunder except to the extent of any damage or liability caused by or arising
out of such failure. In the event of any such claim for indemnification
hereunder resulting from or in connection with any
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claim or legal proceedings by a third party, the notice to the Indemnifying
Party shall specify, if known, the amount or an estimate of the amount of the
liability arising therefrom. The Indemnified Party shall not settle or
compromise any claim by a third party for which it is seeking indemnification
hereunder without the prior written consent of the Indemnifying Party (which
consent shall not be unreasonably withheld), unless the Indemnifying Party shall
not have taken control of the defense of such claim as provided in Section 8.4
of this Agreement, after notification thereof pursuant to this Section 8.3, in
which case the Indemnified Party may settle or compromise such claim without the
Indemnifying Party's consent.
8.4 Defense by the Indemnifying Party.
---------------------------------
(a) Subject to Section 8.4(b), in connection with any claim for
indemnification hereunder resulting from or arising out of any claim or legal
proceeding by a third party, the Indemnifying Party at its sole cost and expense
may, upon written notice to the Indemnified Party given within 10 days after the
date of the notice of the claim from the Indemnified Party pursuant to Section
8.3, assume the defense of such claim or legal proceeding with counsel approved
by the Indemnified Party, which approval shall not be unreasonably withheld, if
(i) the Indemnifying Party acknowledges to the Indemnified Party in writing the
Indemnifying Party's obligations to indemnify the Indemnified Party with respect
to all elements of such claim, (ii) the third party seeks monetary damages only,
and (iii) an adverse resolution of the third party's claim would not have a
Material Adverse Effect on the goodwill or the reputation of the Indemnified
Party, the NMC Business or the CMS Business or the future conduct of the
business of the Indemnified Party, the NMC Business or the CMS Business. If the
Indemnifying Party so assumes such defense, the Indemnified Party shall be
entitled to participate in (but not control) such defense, with its counsel and
at its own expense. In addition, if the Indemnifying Party so assumes such
defense, it shall take all steps necessary in the defense or settlement thereof.
If the Indemnifying Party does not (or is not permitted under the terms hereof
to) assume the defense of any such claim or legal proceeding, (A) the
Indemnified Party may defend against such claim or legal proceeding (with the
Indemnifying Party responsible for the reasonable fees and expenses of counsel
for the Indemnified Party) in such manner as it may deem appropriate, including
but not limited to settling such claim or legal proceeding on such terms as the
Indemnified Party may deem appropriate, and (B) the Indemnifying Party shall be
entitled to participate in (but not control) the defense of such action, with
its counsel and at its own expense. The party controlling the defense of a
third party claim pursuant to this Section 8.4 shall keep the other party
advised of the status of such action, suit or proceeding and the defense thereof
and shall consider in good faith recommendations made by the other party with
respect thereto.
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(b) If a customer or supplier of the NMC Business or the CMS Business
asserts that the NMC Business, the CMS Business or the Buyer is liable to such
party for a monetary or other obligation which may constitute or result in
Damages for which the Buyer may be entitled to indemnification pursuant to this
Article VIII, and the Buyer reasonably determines that it has a valid business
reason to fulfill such obligation, then (i) the Buyer shall be entitled to
satisfy such obligation, without prior notice to or consent from either of the
Sellers, (ii) the Buyer may make a claim for indemnification pursuant to this
Article VIII in accordance with the provisions hereof, and (iii) the Buyer shall
be reimbursed, in accordance with the provisions hereof, for any such Damages
for which it is entitled to indemnification pursuant to this Article VIII.
8.5 Payment of Indemnification Obligation. All indemnification by the
-------------------------------------
Indemnifying Party hereunder shall be effected promptly as Damages are incurred
by payment of cash, delivery of a cashier's or certified check or wire transfer
of immediately available funds to an account designated by the Indemnified Party
in the amount of the indemnification liability; provided, however, that if the
Indemnifying Party is a Seller, the Buyer, as the Indemnified Party, may, at the
Buyer's election, recover all or any portion of such Damages that are not paid
in cash or by check or wire transfer by setting off against amounts otherwise
due and payable under the Note.
8.6 Survival.
--------
(a) All representations, warranties, covenants and obligations in this
Agreement, the Ancillary Agreements, the Disclosure Schedule, any supplements to
the Disclosure Schedule and any other certificate or documents delivered
pursuant to this Agreement will survive the Closing, and the right to
indemnification, reimbursement or other remedy based on such representations,
warranties, covenants and obligations will not be affected by any investigation
conducted with respect to, or any knowledge acquired (or capable of being
acquired) about the accuracy or inaccuracy of or compliance with, any such
representations, warranty, covenants or obligations. If the Closing occurs, an
Indemnifying Party will have no liability for indemnification with respect to
any representation or warranty, other than those in Sections 3.1, 3.2, 3.7,
3.14, 4.1 or 4.3 (subject, in the case of Sections 3.7 and 3.14, to applicable
statutes of limitations), unless on or before the first anniversary of the
Closing Date the Indemnifying Party is given notice of a claim pursuant to
Section 8.3 hereof. However, the preceding sentence of this Section 8.6 will
not apply in any situation in which the Indemnifying Party knew at the time the
representation and warranty was made that it was false. A claim with respect to
Section 3.7 or Section 3.14 may be made at any time on or before the expiration
date of the
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applicable statute of limitations. A claim with respect to Sections 3.1, 3.2,
4.1 or 4.3, or a claim for indemnification or reimbursement not based upon any
representation or warranty in Article III or Article IV, may be made at any
time.
(b) If a notice is given in accordance with Section 8.3 before the
expiration of the applicable survival period (if any) specified in Section
8.6(a), then (notwithstanding the expiration of such time period) the
representation or warranty applicable to such claim shall survive until, but
only for purposes of, the resolution of such claim.
8.7 Limitations on Amount. An Indemnifying Party will have no liability
---------------------
for indemnification pursuant to Section 8.1(a) or 8.2(a) (or, in the case of
either Seller, as a result of any alleged breach of the obligations set forth in
Section 5.2) until the aggregate Damages to the Indemnified Party exceed
$150,000 (at which point the Indemnified Party shall become liable for only
those aggregate Damages in excess of $150,000). However, the preceding sentence
of this Section 8.7 will not apply to indemnification arising from any fraud on
the part of the Indemnifying Party and will not apply to any breach of the
representations and warranties set forth in Sections 3.1, 3.2, 3.3(a)(i), 3.7,
4.1, 4.3 or 4.4(a). For purposes of this Article VIII, all representations and
warranties of the Sellers contained in Article III (other than Section 3.20)
shall be construed as if the term "Material" and any, reference to "Material
Adverse Effect" (and variations thereof) were omitted from such representations
and warranties.
8.8 Buyer Guaranty. In the event the Buyer designates a Designated
--------------
Transferee to buy the Acquired Assets, the Buyer hereby unconditionally
guaranties the due and punctual payment and performance of all of the
obligations of Designated Transferee set forth in this Agreement. This guaranty
is an irrevocable guaranty of payment (and not just of collection) and shall
continue in effect notwithstanding any extension or modification of the terms of
this Agreement, any assumption of any such guaranteed obligation by any other
party or any other act or event that might otherwise operate as a legal or
equitable discharge of Buyer under this Section 8.8. This guaranty is in no way
conditioned upon any requirement that either Seller first attempt to collect or
enforce any guaranteed obligation from or against any Designated Transferee. So
long as any obligation of any Designated Transferee to either Seller under this
Agreement remains unpaid or undischarged, the Buyer hereby waives (but only with
respect to the Sellers and their respective Affiliates and not as to any other
parties) all rights to subrogation arising out of any payment by the Buyer under
this Section 8.8.
The obligations of the Buyer hereunder shall be absolute and unconditional
irrespective of the validity, legality or enforceability of this Agreement or
any other
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document related hereto, and shall not be affected by or contingent upon (i) the
liquidation or dissolution of, or the merger or consolidation of any Designated
Transferee with of into any corporation, or any sale or transfer by any
Designated Transferee or all or any part of its property or assets, (ii) the
bankruptcy, receivership, insolvency, reorganization or similar proceedings
involving or affecting any Designated Transferee, (iii) any modification,
alteration, amendment or addition of or to this Agreement, or (iv) any
disability or any other defense of any Designated Transferee or any other person
and any other circumstance whatsoever (with or without notice to or Knowledge of
the Buyer) which may or might in any manner or to any extent vary the risks of
the Buyer or might otherwise constitute a legal or equitable discharge of a
surety or a guarantor or otherwise.
The Buyer hereby waives all special suretyship defenses and protest, notice
of protest, demand for performance, diligence, notice of any other action at any
time taken or omitted by either Seller and, generally, all demands and notices
of every kind in connection with this Section 8.8 and the obligations of any
Designated Transferee hereby guaranteed, and which Buyer may otherwise assert
against either Seller.
This Section 8.8 shall continue to be effective or shall be reinstated, as
the case may be, if at any time payment or performance of any of the obligations
of any Designated Transferee under this Agreement is rescinded or must otherwise
be restored any Designated Transferee or returned by the Sellers upon the
insolvency, bankruptcy or reorganization of any Designated Transferee or
otherwise.
The Buyer acknowledges that each of the waivers set forth above is made
with full knowledge of its significance and consequences and under the
circumstances the waivers are reasonable and not contrary to public policy. If
any of said waivers is determined to be contrary to any applicable law or public
policy, such waivers shall be effective only to the extent permitted by law.
ARTICLE IX
TERMINATION
9.1 Termination of Agreement. The parties may terminate this Agreement
------------------------
prior to the Closing as provided below:
(a) the parties may terminate this Agreement by mutual written
consent;
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(b) the Buyer may terminate this Agreement by giving written notice to
the Sellers in the event either Seller is in breach, and either Seller may
terminate this Agreement by giving written notice to the Buyer in the event the
Buyer is in breach, of any material representation, warranty or covenant
contained in this Agreement, which breach is not cured within 15 days of the
receipt of notice by the breaching Party delivered in accordance with the
provisions, of Section 10.7 of this Agreement;
(c) the Buyer may terminate this Agreement by giving written notice to
the Sellers if the Closing shall not have occurred on or before June 30, 1999 by
reason of the failure of any condition precedent under Section 6.1 hereof
(unless the failure results primarily from a breach by the Buyer of any
representation, warranty or covenant contained in this Agreement); or
(d) the Sellers may terminate this Agreement by giving written notice
to the Buyer if the Closing shall not have occurred on or before June 30, 1999
by reason of any failure of any condition precedent under Section 6.2 hereof
(unless the failure results primarily from a breach by either Seller of any
representation, warranty or covenant contained in this Agreement).
9.2 Effect of Termination. If any party terminates this Agreement
---------------------
pursuant to Section 9.1, all obligations of the parties hereunder shall
terminate without any liability of any party to any other party (except for any
liability of any party for breaches of this Agreement, including without
limitation breaches of the covenants set forth in Article V, occurring prior to
such termination).
ARTICLE X
MISCELLANEOUS
10.1 Press Releases and Announcements. Prior to the Closing, no party
--------------------------------
shall issue any press release or announcement relating to the subject matter of
this Agreement without the prior written approval of the other party; provided,
however, that any party may make any public disclosure it believes in good faith
is required by Law or Regulation or the applicable rules of a stock exchange;
and provided, further, that the Buyer may issue press releases or make other
public announcements concerning the execution of this Agreement and the terms
thereof with the prior written approval of Renaissance, which approval shall not
be unreasonably withheld or delayed.
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10.2 No Third Party Beneficiaries. This Agreement (including without
----------------------------
limitation Section 7.7 hereof) shall not confer any rights or remedies upon any
person other than the parties and their respective successors and permitted
assigns.
10.3 Entire Agreement. This Agreement (including the documents referred to
----------------
herein) constitutes the entire agreement between the parties and supersedes any
prior understandings, agreements or representations by or between the parties,
written or oral, that may have related in any way to the subject matter hereof.
Notwithstanding the foregoing, the provisions of the Mutual Non-Disclosure
Agreement, dated April 13, 1999, between the Buyer and Renaissance shall survive
until the Closing, whereupon it shall terminate.
10.4 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, whether by operation of law or
otherwise, without the prior written approval of the other party, except that
the Buyer may assign some or all of its rights, interests and/or obligations
hereunder to one or more Affiliates of the Buyer (each, a "Designated
Transferee"); provided, however, that such assignment shall be conditioned upon
the guaranty provided in Section 8.8 hereof. If the Buyer assigns any of its
rights, interests and/or obligations hereunder to one or more Designated
Transferees, then, unless the contract otherwise requires, all references herein
to the Buyer shall mean and include any and all such Designated Transferees.
10.5 Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
10.6 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.
10.7 Notices. All notices, requests, demands, claims and other
-------
communications hereunder shall be in writing. Any notice, request, demand, claim
or other communication hereunder shall be deemed duly delivered three days after
it is sent by U.S. registered or certified mail, return receipt requested,
postage prepaid, or one business day after it is sent via a reputable nationwide
overnight courier service, in each case to the intended recipient as set forth
below:
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If to the Sellers: Copy to:
----------------- -------
Renaissance Worldwide, Inc. Ropes & Xxxx
000 Xxxxx Xxxxxx Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000 Xxxxxx, XX 00000
Telecopy: Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx Attention: Xxxxx X. Xxxxxxx, Esq.
Vice President, General
Counsel and Clerk
If to the Buyer: Copies to:
--------------- ---------
ZEFER Corp. Xxxx and Xxxx LLP
000 Xxxxx Xxxxxx 00 Xxxxx Xxxxxx
Xxxxxx, XX 00000 Xxxxxx, XX 00000
Telecopy: (617) Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx, Attention: Xxxxx X. Xxxxxxx, Esq.
Executive Vice President
and General Counsel
Any party may also give any notice, request, demand, claim or other
communication hereunder by personal delivery or telecopy, 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 individual for whom it is
intended. Any notice sent by telecopy shall be followed by a confirmation copy
sent by reputable overnight business courier service. 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.
10.8 Governing, Law; Time of the Essence. This Agreement shall be governed
-----------------------------------
by and construed in accordance with the internal laws (and not the law of
conflicts) of the Commonwealth of Massachusetts. Time is of the essence in the
performance of this Agreement.
10.9 Amendments and Waivers. The parties may amend any provision of this
----------------------
Agreement at any time prior to the Closing by a written instrument signed by
each of the parties. No waiver by either 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.
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10.10 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. If the final judgment of a court of
competent jurisdiction declares that any term or provision hereof is invalid or
unenforceable, the parties agree that the court making the determination of
invalidity or unenforceability shall have the power to reduce the scope,
duration or area of the term or provision, to delete specific words or phrases,
or to replace any invalid or unenforceable term or provision with a term or
provision that is valid and enforceable and that comes closest to expressing the
intention of the invalid or unenforceable term or provision, and this Agreement
shall be enforceable as so modified after the expiration of the time within
which the judgment may be appealed.
10.11 Expenses. Except as specifically set forth in this Agreement, each
--------
party shall bear its own costs and expenses (including legal and accounting fees
and expenses) incurred in connection with this Agreement and the transactions
contemplated hereby. In the event of any litigation, claim, proceeding or
arbitration with respect to this Agreement or the Ancillary Agreements, the
prevailing party shall be paid its reasonable legal fees and expenses by the
opposing party.
10.12 Specific Performance. Each party acknowledges and agrees that the
--------------------
other party would be damaged irreparably in the event any of the provisions of
this Agreement (including without limitation Sections 7.1, 7.2 and 7.3 hereof)
are not performed in accordance with their specific terms or otherwise are
breached. Accordingly, each party 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 foreign jurisdiction or any state or province thereof having jurisdiction
over the parties and the matter, in addition to any other remedy to which it may
be entitled, at law or in equity.
10.13 Construction. The language used in this Agreement shall be deemed
------------
to be the language chosen by the parties hereto to express their mutual intent,
and no rule of strict construction shall be applied against any party. Any
reference to any federal, state, local or foreign Law or Regulation shall be
deemed also to refer to all rules and regulations promulgated thereunder, unless
the context requires otherwise.
10.14 Incorporation of Exhibits and Schedules. The Exhibits and Schedules
---------------------------------------
identified in this Agreement are incorporated herein by reference and made a
part hereof.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
BUYER:
ZEFER CORP.
By:/s/ Xxxx X. Xxxxxxxx
----------------------------
Title:_________________________
SELLERS:
RENAISSANCE WORLDWIDE, INC.
By:____________________________
Title:_________________________
NEOGLYPHICS MEDIA
CORPORATION
By:____________________________
Title:_________________________
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
BUYER:
ZEFER CORP.
By:_______________________________
Title:____________________________
SELLERS:
RENAISSANCE WORLDWIDE, INC.
By:
Title:
By: /s/ G. Xxxx Xxxxxx
--------------------------------
TITLE:_____________________________
NEOGLYPHICS MEDIA
CORPORATION
BY: /s/ G. Xxxx Xxxxxx
--------------------------------
Title:_____________________________
