EXHIBIT 10.3
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STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement"), dated April 26, 2006, is
by and among Asset Acceptance Holdings LLC, a Delaware limited liability company
(the "Buyer"), and Xxxxxxxxxxx X. Xxxxxx ("Xxxxxx"), Xxxxx Xxxxxxxxx ("Xxxxx
Xxxxxxxxx"), Xxxx X. Xxxxxxxxx ("Xxxxxxxxx"), Xxxxx Xxxxxxxx ("Xxxxxxxx"),
Xxxxxxx Xxxxxxx ("Xxxxxxx"), Xxxx Xxxxxx and Xxxx Xxxxxx, as tenants by the
entireties (together "Xxxxxx"), Delight Xxxxxxxxx ("Kasserman"), Xxxxxx
Xxxxxxxxx ("Xxxxxx Xxxxxxxxx"), and Dalewood LP, a New York limited partnership
("Dalewood") (each, a Seller, and collectively the "Sellers").
Xxxxxxxx, Xxxxxxx, Fisher, Kasserman, Xxxxxx Xxxxxxxxx, and Dalewood are
sometimes referred to in this Agreement collectively as the "Passive Sellers"
and individually as a "Passive Seller." The Buyer and the Sellers are sometimes
referred to in this Agreement collectively as the "Parties" and individually as
a "Party."
BACKGROUND
A. The Sellers own 100% of the issued and outstanding shares of the
capital stock (the "Shares") of Premium Asset Recovery Corp., a Florida
corporation (Premium Asset Recovery Corp. and all of its direct and indirect
subsidiaries are referred to in this Agreement collectively as the "Company").
B. The Sellers desire to sell to the Buyer, and the Buyer desires to
purchase from the Sellers, all of the Shares for the consideration, upon the
terms and subject to the conditions set forth in this Agreement.
C. Definitions of capitalized terms used in this Agreement and provisions
regarding interpretation of this Agreement are contained in Exhibit A.
Now, therefore, the Parties agree as follows.
AGREEMENT
ARTICLE I
PURCHASE AND SALE OF STOCK; PURCHASE PRICE
1.1 SALE AND PURCHASE OF THE SHARES. On the terms and subject to the
conditions of this Agreement, on the Closing Date the Sellers hereby sell,
assign, transfer and deliver the Shares to the Buyer free and clear of all Liens
and the Buyer hereby purchases the Shares from the Sellers.
1.2 PURCHASE PRICE.
(A) The total purchase price for the Shares shall be $15,500,000,
subject to adjustment as set forth in this Article I (the "Total Purchase
Price").
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(B) On the Closing Date, each Seller shall receive a proportionate
share of the Total Purchase Price less $1,300,000 (the "Escrow Amount") with
respect to the purchase of the Shares in the amount set forth next to the
Seller's name on Schedule 1.2.
(C) The aggregate amount of the Total Purchase Price less the Escrow
Amount is referred to in this Agreement as the "Closing Date Purchase Price
Payment".
1.3 METHOD OF PAYMENT.
(A) On the Closing Date, the Buyer will pay to the Sellers the
Closing Date Purchase Price Payment by wire transfer of immediately available
funds according to irrevocable written instructions delivered to the Buyer by
the Sellers. The Sellers must deliver their irrevocable written instructions for
the delivery of the Closing Date Purchase Price Payment to the Buyer not less
than three Business Days before the Closing Date.
(B) On the Closing Date, the Buyer will deliver the Escrow Amount to
X.X. Xxxxxx Trust Company, National Association (the "Escrow Agent") by wire
transfer of immediately available funds pursuant to the terms of the escrow
agreement in the form attached to this Agreement as Exhibit B (the "Escrow
Agreement").
1.4 DELIVERY OF THE SHARES. On the Closing Date, the Sellers will deliver
to the Buyer certificates representing the Shares, each of which certificates
will be endorsed in blank or accompanied by stock powers duly executed in blank
to permit transfer of the Shares to the Buyer in the form attached to this
Agreement as Exhibit C (the "Stock Power").
1.5 CLOSING. The closing of the transactions contemplated by this
Agreement (the "Closing") will take place at the offices of Gunster, Yoakley &
Xxxxxxx, P.A., 000 X. Xxxxxxx Xxxxx, Xxxxx 000 X, Xxxx Xxxx Xxxxx, XX 00000, or
at such other place or via facsimile or on such other date as the Parties may
agree. The date upon which the Closing actually occurs is the "Closing Date."
1.6 TAX ADJUSTMENT.
(A) The Sellers have provided the Buyer with correct and complete
copies of all of the Company's federal and state Tax Returns for the year-ended
December 31, 2005 (the "Preliminary 2005 Tax Returns"). The Total Purchase Price
shall be reduced by $646,821 (which is the entire amount of the Company's Tax
obligations set forth in the 2005 Tax Returns) (the "Preliminary Tax
Obligations") and shall be subject to adjustment after the Closing Date pursuant
to the terms of this Section 1.6.
(B) As soon as is practicable after the Closing Date, the Buyer and
its advisors shall review the Preliminary 2005 Tax Returns and, if required by
Applicable Law, any prior periods (the "Reviewed Tax Returns"). If the Company's
Tax obligations as reflected on the Reviewed Tax Returns (the "Revised Tax
Obligations") are equal to or less than the Preliminary Tax Obligations, then
the Buyer shall refund to the Sellers an aggregate amount equal to the
difference between the Revised Tax Obligations and the Preliminary Tax
Obligations. If the
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Revised Tax Obligations are greater than the Preliminary Estimated Tax
Obligations, then the remainder of this Section 1.6 shall apply.
(C) The Sellers' Representative and his advisors shall review the
Reviewed 2005 Tax Returns promptly and shall provide the Buyer with written
notice of any objections to the 2005 Tax Returns, which notice shall specify the
disputed portions of the Reviewed 2005 Tax Returns and shall state the basis of
the objection (the "Objection Notice"). If the Sellers' Representative does not
deliver the Objection Notice to the Buyer on or before the 30th day after the
date the Buyer delivered the Reviewed 2005 Tax Returns to the Sellers'
Representative, then the Reviewed 2005 Tax Returns as calculated by the Buyer
shall be binding and conclusive on the Parties. If the Sellers' Representative
timely delivers the Objection Notice to the Buyer, then all items on the
Reviewed 2005 Tax Returns which are not identified as disputed in such Objection
Notice shall be deemed accepted by the Sellers' Representative and the Sellers
and shall not be subject to further adjustment.
(D) If the Sellers' Representative timely delivers the Objection
Notice to the Buyer, and if the Buyer and the Sellers' Representative fail to
resolve the issues outstanding with respect to the Reviewed 2005 Tax Returns on
or before the tenth day after the Buyer's receipt of the Objection Notice, then
the Buyer and the Sellers' Representative shall submit the issues remaining in
dispute to KPMG (the "Independent Accountants") for resolution, applying the
principles, policies and practices referred to in Section 1.6(g). If issues are
submitted to the Independent Accountants for resolution:
(i) the Buyer and the Sellers' Representative shall furnish or
cause to be furnished to the Independent Accountants such work
papers and other documents and information relating to the disputed
issues as the Independent Accountants may request and are available
to such Party or his, her or its agents and shall be afforded the
opportunity to present to the Independent Accountants any material
relating to the disputed issues and to discuss the issues with the
Independent Accountants;
(ii) the determination by the Independent Accountants, as set
forth in a notice to be delivered to all of the Parties as soon as
is practicable after the Buyer and the Sellers' Representative have
submitted the issues remaining in dispute to the Independent
Accountants, shall be final, binding and conclusive on the Parties,
shall be used in the calculation of any further adjustments to the
Total Purchase Price, and judgment on such determination may be
entered in any court having jurisdiction; and
(iii) the Buyer shall pay one-half of all fees and expenses of
the Independent Accountants for such determination and the Sellers'
Representative shall pay the other one-half.
(E) If the Tax obligations of the Company for the year-ended
December 31, 2005 and any applicable prior periods, as finally determined
pursuant to this Section 1.6 (the
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"Final 2005 Tax Obligations") are greater than the Preliminary Tax Obligations,
then the Sellers, jointly and severally, shall be obligated to pay the amount of
the difference between the Preliminary Tax Obligations and the Final 2005 Tax
Obligations to the Buyer in immediately available funds not later than the fifth
day after the final determination of the Final 2005 Tax Obligations (whether by
settlement or by determination of the Independent Accountants).
(F) If the Sellers do not timely deliver such amount to the Buyer,
then the Buyer may, in its sole discretion and at its option, direct the Escrow
Agent to deliver such amount to the Buyer. If the Buyer directs the Escrow Agent
to deliver such amount to the Buyer, then the Buyer shall retain the right to
pursue payment from the Sellers as contemplated by Section 1.6(e), which payment
would be deposited in the Escrow Account to replenish the funds paid to the
Buyer pursuant to this subsection (f).
(G) The principles, policies and practices used to calculate the
Company's Tax obligations pursuant to this Section 1.6 shall be in compliance
with the all Applicable Laws and shall otherwise be consistent with the
Company's prior practices.
1.7 PAYOFF OF INDEBTEDNESS AT THE CLOSING. At the Closing, the Buyer shall
pay, or cause to be paid, in full all of the obligations of the Company which
are listed on Schedule 1.7.
1.8 SATISFACTION OF PROFIT SHARING AGREEMENT. At the Closing, the Company
shall have satisfied all claims of participants pursuant to all Profit Sharing
Agreements as listed on Schedule 1.8, and obtained written releases from all
such participants, which releases shall be in form and substance satisfactory to
Buyer (the "Profit Sharing Releases"). The Total Purchase Price shall be reduced
by the aggregate amount of "Premium" payments as set forth on Schedule 1.8.
1.9 RELEASE OF GUARANTEES. At the Closing, the Company shall have obtained
releases of the guarantees set forth on Schedule 1.9 and such releases shall be
in form and substance satisfactory to the guarantors being released and to the
Buyer (the "Guarantor Releases").
1.10 DELIVERIES BY THE SELLERS AT THE CLOSING. At the Closing, the Sellers
shall execute (if necessary) and deliver to the Buyer, or cause to be executed
and delivered to the Buyer, the following:
(A) Non-Competition Agreements among the Buyer, the Company and
Xxxxx Xxxxxxxxx and the Buyer, the Company and Kasserman in the form attached to
this Agreement as Exhibit D (the "Non-Competition Agreements");
(B) Employment Agreements among the Buyer, the Company and Xxxxxx
and the Buyer, the Company and Xxxxxxxxx in the form attached to this Agreement
as Exhibit E (the "Employment Agreements");
(C) Resignations from each of the directors and officers of the
Company and the Subsidiary in the form attached to this Agreement as Exhibit F;
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(D) the Profit Sharing Releases;
(E) the Guarantor Releases;
(F) releases by each Seller of any and all claims the Seller may
have against the Company in form and substance satisfactory to the Buyer (the
"Seller Releases");
(G) certificates representing all of the Shares and all applicable
Stock Powers;
(H) as applicable, consents for each of the Real Property Leases and
all other Contracts executed by the appropriate third party;
(I) payoff letters from all secured parties in form and substance
satisfactory to the Buyer;
(J) the Escrow Agreement; and
(K) such other documents as the Buyer may reasonably request to
consummate the transactions contemplated by this Agreement.
1.11 DELIVERIES BY THE BUYER AT THE CLOSING. At the Closing, the Buyer
shall execute (if necessary) and deliver to the Sellers, or cause to be executed
and delivered to the Sellers, the following:
(A) the Closing Date Purchase Price Payment as set forth in Section
1.2;
(B) the Non-Competition Agreements;
(C) the Employment Agreements;
(D) a certificate signed by an authorized officer of the Buyer
certifying resolutions of the Buyer approving and authorizing the execution,
delivery and performance of this Agreement;
(E) the Escrow Agreement; and
(F) such other documents as the Sellers may reasonably request to
consummate the transactions contemplated by this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
Except as set forth in the disclosure schedules dated as of the date of
this Agreement and delivered with this Agreement to the Buyer or as set forth in
the representations and warranties below, subject to the following paragraph,
the Sellers, jointly and severally, represent and warrant to the Buyer as
follows. All of the representations and warranties of the Sellers are made as of
the date of this Agreement and as of Closing Date.
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Notwithstanding anything to the contrary in this Article II (a) the
representations and warranties made by the Passive Sellers in Sections 2.3
(Authority; No Violation or Consent), 2.4 (Capitalization; Ownership of Common
Stock; Passive Investor Status), 2.8(b) (No Dividends or Distributions) and 2.19
(Affiliate Transactions) (such sections being referred to in this Agreement as
the "Passive Seller Sections") are being made severally by each Passive Seller
solely with respect to him, her or itself and not jointly with other Sellers,
and (b) all of the representations and warranties of each Passive Seller shall
be limited to the Knowledge of such Passive Seller, except with respect to the
Passive Seller Sections, which shall not be so limited.
2.1 ORGANIZATION; QUALIFICATION. Each of the Company and the Subsidiary is
a corporation duly organized, validly existing and in good standing under the
laws of the state of Florida, and has all requisite power and authority to own
its respective assets and conduct is respective business as and where presently
conducted. Each of the Company and the Subsidiary is duly qualified to do
business in each jurisdiction listed on Schedule 2.1, and neither the Company
nor the Subsidiary is required to be qualified in any other jurisdiction, except
where the failure to be so qualified would not have a Material Adverse Effect.
2.2 SUBSIDIARIES OR INVESTMENTS.
(A) Other than as set forth on Schedule 2.2, the Company does not
directly, or indirectly, own any equity interests in any Person, nor does the
Company have any right to acquire or otherwise obtain any equity interests in
any Person. The Person listed on Schedule 2.2 is referred to in this Agreement
as the "Subsidiary." Set forth for the Subsidiary on Schedule 2.2 is (i) its
name, (ii) the number of shares of authorized capital stock of each class of its
capital stock, and (iii) the number of issued and outstanding shares of each
class of its capital stock.
(B) All of the issued and outstanding shares of capital stock of the
Subsidiary have been duly authorized and is validly issued, fully paid and
nonassessable and were not issued in violation of, and are not subject to, any
preemptive rights.
(C) The Company beneficially owns all of the issued and outstanding
shares of the capital stock of the Subsidiary free and clear of any Liens,
voting trusts and restrictions on transfer of any nature whatsoever, except for
restrictions imposed by or pursuant to the securities laws of the United States
and of any state that has jurisdiction over such transfer. There are no
outstanding options, warrants, rights, puts, calls, agreements, understandings
or other commitments or rights of any type relating to the issuance, sale or
transfer by the Company or the Subsidiary of any security of the Subsidiary, and
no other securities of the Subsidiary are reserved for any purpose. There are no
outstanding securities that are convertible into or exchangeable for any shares
of the capital stock of the Subsidiary. There are no contracts, commitments,
agreements, understandings, arrangements or restrictions of any kind to which
the Subsidiary is a party which relate to the capital stock of the Company. The
Subsidiary has no obligation of any kind to issue any additional securities or
repurchase any outstanding securities.
(D) The Subsidiary does not beneficially own, directly or
indirectly, any outstanding equity interests of any other Person. Neither the
Company nor the Subsidiary is a
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party to, or otherwise involved with, any partnership, joint venture, limited
liability company or other Person in which the Company or the Subsidiary,
directly or indirectly, has, or pursuant to any agreement has or will have the
right to acquire by any means, any equity or voting interest in any other
Person.
(E) Except as set forth in Schedule 2.2(e), the Company has not used
any assumed name, whether or not such name was formally certified by any
jurisdiction, at any time and for any purpose.
2.3 AUTHORITY; NO VIOLATION OR CONSENT. Each Seller has the legal capacity
and requisite power and authority to enter into this Agreement, to perform his,
her or its obligations hereunder, and to carry out the transactions contemplated
by this Agreement. All proceedings required to be taken by each Seller to
authorize the execution, delivery, and performance of this Agreement have been
duly and properly taken. Assuming the due execution and delivery of this
Agreement by the Buyer, this Agreement is a valid and binding obligation of each
Seller in accordance with its terms, subject to general principles of equity and
applicable bankruptcy, insolvency, reorganization, and fraudulent conveyance or
similar or other laws affecting the enforcement of creditors' rights generally.
The execution and delivery of this Agreement, the consummation of the
transactions contemplated by this Agreement and the compliance with the terms of
this Agreement do not and will not:
(A) conflict with or result in any breach of any provision of any
agreement or other instrument to which the Company or any Seller is a party or
by which his, her or it or any of his, her or its assets may be bound, or
conflict with or result in any breach of any provision of any Seller's or any of
the Company's Constituent Documents;
(B) conflict with, result in a breach of any provision of,
constitute (with or without due notice or lapse of time or both) a default
under, result in the modification or cancellation of, result in any increase in
the obligations of any Seller or the Company under, or give rise to any right of
termination or acceleration in respect of, any contract, agreement, commitment,
understanding, arrangement or restriction of any kind to which any Seller of the
Company is a party or to which any Seller, the Company or any of the Company's
assets is subject;
(C) result in the creation of any Lien upon, or any Person obtaining
the right to acquire, any of the Shares, any equity interest in the Company or
any of the Company's assets;
(D) violate or conflict with any law, ordinance, code, rule,
regulation, decree, order or ruling of any court or Governmental Authority to
which any Seller or the Company are subject;
(E) require any authorization, consent, order, permit or approval
of, or notice to, or filing, registration or qualification with ("Consent"), any
Governmental Authority; or
(F) except as described in Schedule 2.3(f), require any Consent of
any Person to the execution, delivery or performance of this Agreement or to the
consummation of the
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transactions contemplated hereby, including Consents from parties to leases or
other agreements or commitments.
2.4 CAPITALIZATION; OWNERSHIP OF COMMON STOCK; PASSIVE SELLER STATUS.
(A) The authorized capital stock of the Company consists of 115,000
shares of Class A voting common stock, $0.01 par value per share, all of which
are validly issued and outstanding, have been duly authorized, and are fully
paid and nonassessable and 85,000 shares of Class B non-voting common stock,
$0.01 par value, of which none are issued and outstanding. Immediately prior to
the Closing, the Company's Articles of Incorporation shall be amended so that
the authorized Class A voting common stock shall be increased to 116,000 shares,
and all of which will be validly issued and outstanding at such time.
(B) None of the Shares were issued in violation of, and are not
subject to, any preemptive rights. The Shares constitute all of the issued and
outstanding shares or other equity interests in the Company. The Sellers are the
lawful owners, of record and beneficially, of the Shares as set forth on
Schedule 2.4 and have good title to the Shares, free and clear of any Liens,
voting trusts and restrictions on transfer of any nature whatsoever, except for
restrictions on transfer imposed by or pursuant to the securities law of the
United States and of any state that has jurisdiction over such transfer.
(C) Except as described in Schedule 2.4, there are no outstanding
options, warrants, rights, puts, calls, agreements, understandings or other
commitments or rights of any type relating to the issuance, sale or transfer by
any Seller or the Company of any security of the Company, and no other
securities of the Company are reserved for any purpose. There are no outstanding
securities that are convertible into or exchangeable for any shares of the
capital stock of the Company. There are no contracts, commitments, agreements,
understandings, arrangements or restrictions of any kind to which any Seller or
the Company is a party which relate to the capital stock of the Company. The
Company has no obligation of any kind to issue any additional securities or
repurchase any outstanding securities.
(D) Each Passive Seller represents and warranties that he or she (or
in the case of Dalewood, any of its partners, officers or employees) is not now,
and has not at any time in the past been, an employee or officer of, or
consultant to, the Company or of other Person primarily or substantially engaged
in the accounts receivable management industry, including debt collection or
debt purchasing.
2.5 FINANCIAL STATEMENTS; FINANCIAL REPORTS. The Sellers have provided to
the Buyer (a) the Adjusted Income Statement of the Company as of September 30,
2005, (b) the reviewed balance sheets of the Company as of December 31, 2005 and
December 31, 2004, (c) the Interim Balance Sheet of the Company as of September
30, 2005, and (d) the related statements of income, retained earnings and cash
flows of the Company for the fiscal years then ended December 31, 2005 and
December 31, 2004 (the "Financial Statements"). The Financial Statements were
prepared in accordance with GAAP as consistently applied by the Company, except
as set forth on Schedule 2.5, and are in accordance with the books and records
of the
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Company. Schedule 2.5 sets forth a description of the revenue recognition
policies and procedures utilized by the Company to prepare its Financial
Statements. The books and records of the Company are true and correct in all
material respects. The Financial Statements fairly present the financial
condition, results of operations, and cash flow of the Company for the periods
referred to in the Financial Statements.
2.6 UNDISCLOSED LIABILITIES. The Company has no liabilities or
obligations, secured or unsecured (whether known or unknown, asserted or
unasserted, absolute, accrued, contingent or otherwise, and whether due or to
become due) that would be required to be disclosed in the Financial Statements,
nor is there any such liability or obligation for which the Company is or may
become liable, contingently or otherwise, which is not accrued or reserved
against in the Financial Statements, except those which were incurred in the
ordinary course of business after September 30, 2005, and are consistent with
past practices in nature and are individually and in the aggregate in an amount
consistent with the Financial Statements. There is no circumstance, condition,
event or arrangement that would hereafter give rise to any liabilities of the
Company, except in the ordinary course of business consistent with past
practices.
2.7 LICENSES AND PERMITS.
(A) The Company has filed all reports and other filings required to
be filed with any Governmental Authority. All reports (including financial
reports) filed by the Company with any Governmental Authority have been prepared
in accordance with applicable statutory and regulatory requirements and all
applicable policies and procedures of the appropriate Governmental Authority.
(B) The Company holds all governmental and other licenses, permits,
registrations, certificates, consents, accreditations, participation agreements
and approvals (all of which are referred to in this Agreement, individually as a
"License" and, collectively, as the "Licenses") as are necessary for the
operation of the business taken as a whole as it is now being conducted.
Schedule 2.7(b) is a complete list of the Licenses issued to the Company. The
Company is not in default in any respect under any License, has not received any
notice of the revocation, termination, suspension, limitation, non-renewal or
investigation with respect to any such License nor have they been notified by
any jurisdiction of the need for a License which has not been obtained. All such
Licenses are in full force and effect and the Company has made timely and
complete application of renewal or reissuance of all Licenses. No event has
occurred which (with notice or without notice or the passing of time) would
constitute grounds for a material violation or deficiency by the Company with
respect to any License.
2.8 ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as otherwise expressly
contemplated by this Agreement or as described in Schedule 2.8, since September
30, 2005, there has not been (a) any Material Adverse Effect and there is no
condition, development or contingency of any kind existing or in prospect which,
so far as reasonably can be foreseen at this time, may result in any Material
Adverse Effect, (b) any declaration, setting aside or payment of any dividend or
other distribution (whether in cash, stock, property or any combination) in
respect of the Company's capital stock or any repurchase, redemption or other
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acquisition by the Company of any shares of its capital stock, (c) any damage,
destruction or casualty loss, whether covered by insurance or not, that may
result in a Material Adverse Effect, or (d) any change by the Company in
accounting methods, principles or practices.
2.9 OWNERSHIP AND CONDITION OF ASSETS OTHER THAN REAL PROPERTY. The
Company has good and marketable title to all of the assets and properties
reflected on the Financial Statements or acquired subsequent to the date of the
Financial Statements, except for assets and properties sold, consumed or
otherwise disposed of in the ordinary course of business since the date of the
Financial Statements, free and clear of all Liens except Permitted Liens. All of
such assets of the Company are in good and usable condition and are fit for
their intended purposes, ordinary wear and tear excepted. There are no defects
in such assets or other conditions which, in the aggregate, adversely affect the
operation, use or value of such assets. Such assets and the other properties
being leased or licensed by the Company pursuant to the leases or licenses
described in Schedule 2.9 constitute all of the operating assets being used by
the Company in the conduct of its business. This Section 2.9 does not relate to
real property or interests in real property, such items being the subject of
Section 2.10.
2.10 REAL PROPERTY.
(A) The Company does not own any real property nor has it ever owned
any real property. The Company has no obligation to purchase any real property.
The Company is not a party to any agreement or contract which gives it the right
to purchase any real property.
(B) Schedule 2.10 contains a list of all real property leased by the
Company (the "Leased Real Property"). For each lease of a Leased Real Property
(a "Real Property Lease"), Schedule 2.10 lists (i) the date of the Lease, (ii)
the landlord, (iii) the name of the lessee, (iv) the term of the Lease,
including the commencement date and termination date, (v) the number of renewal
periods, if any, (vi) the amount of base rent, additional rent and any other
amounts to be paid by the Company under the Lease, (vii) the amount or method of
increasing the base rent, and (viii) the amount of the security deposit
currently on deposit with the landlord.
(C) Neither the execution and the delivery of this Agreement nor the
consummation of the transactions contemplated by this Agreement will 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 any Real Property Lease. The Company is not (with or without the
giving of notice, the lapse of time, or both the giving of notice and the lapse
of time) in breach or default in any material respect under any Real Property
Lease and, to the Sellers' Knowledge, no landlord under any Real Property Lease
is (with or without the giving of notice, the lapse of time, or both the giving
of notice and the lapse of time) in breach or default in any material respect
under such Real Property Lease. The Company has not received any written notice
of the intention of any party to terminate, amend, or otherwise modify any Real
Property Lease. Complete and correct copies of all Real Property Leases,
together with all modifications and amendments, have been delivered to the
Buyer. Each Real Property Lease is valid, enforceable, and in full force and
effect. All rents and additional rents due to date on each such Real Property
Lease have been paid.
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2.11 INTELLECTUAL PROPERTY.
(A) The Sellers have made available to the Buyer the Company's files
of all United States and foreign patents, patent applications and invention
disclosures of the Company. The Company owns or has the right to use, pursuant
to license, sublicense, agreement or permission, all Intellectual Property
necessary for the operation of its business as presently conducted.
(B) The Company has not received any charge, complaint, claim,
demand or notice alleging any interference, infringement, misappropriation or
violation with or of any Intellectual Property rights of a third party
(including any claims that the Company must license or refrain from using any
Intellectual Property rights of a third party). To the Sellers' Knowledge (i)
the Company has not interfered with, infringed upon, misappropriated or
otherwise come into conflict with any Intellectual Property rights of third
parties, and (ii) no third party has interfered with, infringed upon,
misappropriated or otherwise come into conflict with any Intellectual Property
rights of the Company.
(C) Schedule 2.11 contains a complete and correct list of (i) all
registered United States and foreign patents and patent applications,
applications for registered trademarks, trade names, service marks and
copyrights owned by the Company, and all related licenses and other agreements,
and (ii) all agreements relating to third party Intellectual Property that the
Company is licensed or authorized to use. With respect to each item of
Intellectual Property owned by the Company and identified in Schedule 2.11, the
Company possesses all right, title and interest in and to the item, free and
clear of any Liens. With respect to each item of Intellectual Property
identified in Schedule 2.11 that the Company is licensed or authorized to use,
the license, sublicense, agreement or permission covering such item (A) is
valid, binding, enforceable and in full force and effect and will not be
affected by consummation of the transactions contemplated this Agreement, and
(B) has not been breached by any party to such agreement.
(D) The Company's software used in the operation of its business is
free from defects (other than those generally known to the public to be
associated with such software) and known viruses and operates in substantial
conformity with its respective publisher's corresponding software documentation.
(E) The Intellectual Property, excluding any "off the shelf"
software licensed through regular commercial distribution channels, does not
invade the rights of privacy or publicity of any Person or contain any libelous
materials.
2.12 CONTRACTS.
(A) Except as described in Schedule 2.12 and other than as executed
in connection with the transactions contemplated by this Agreement, the Company
is not a party to or bound by any Contract that is used or held for use in, or
that arises out of, the operation or conduct of its business and that is:
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(i) a covenant not to compete (other than pursuant to any
radius restriction contained in any lease, reciprocal easement or
development, construction, operating or similar agreement);
(ii) a Contract with any shareholder, member, director,
officer or Affiliate of the Company or any of the Sellers;
(iii) a lease or similar Contract under which:
(A) the Company is lessee of, or holds or uses, any
machinery, equipment, vehicle or other tangible
personal property owned by any third party, or
(B) the Company is a lessor or sublessor of, or makes
available for use by any third party, any tangible
personal property owned or leased by the Company,
in any such case that has an aggregate future
liability or receivable, as the case may be, in
excess of $10,000;
(iv) a Contract under which the Company has directly or
indirectly guaranteed indebtedness, liabilities or obligations of
any other Person (other than (A) endorsements for the purpose of
collection in the ordinary course of business, and (B) in connection
with a Permitted Lien);
(v) a Contract granting a Lien (other than a Permitted Lien)
upon or otherwise encumbering or restricting the use of any of the
assets of the Company;
(vi) a Contract (excluding a purchase order), involving
payment by the Company of more than $10,000 (unless terminable
without payment or penalty upon no more than 60 days' notice);
(vii) a Contract that gives the Company the right to purchase,
or imposes on the Company the obligation to purchase, any Charged
Off Accounts or Consumer Credit Accounts after the date of this
Agreement, including any "forward-flow contracts";
(viii) a Contract (including a sales order) involving the
obligation of the Company to deliver products or services for
payment of more than $10,000 (unless terminable without payment or
penalty upon no more than 60 days' notice), other than sales orders
entered into in the ordinary course of business after the date of
this Agreement and not in violation of this Agreement; or
(ix) a management agreement, consulting agreement, or any
similar Contract;
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(x) a Contract with any present or former Affiliate of any of
the Sellers;
(xi) a Contract restricting the ability of the Company to
conduct its business;
(xii) a retention, incentive, severance, bonus, or similar
agreement with any employee, officer, or director of the Company;
(xiii) a Contract requiring any payment (A) by the Company, or
(B) to any employee, officer, or director of any of the Company in
connection with this Agreement or the consummation of the
transactions contemplated by this Agreement; or
(xiv) a Contract other than as described above to which the
Company is a party or by which it or any of its assets or business
is bound or subject that is material to the continued operation of
the business of the Company as presently conducted.
(B) Neither the execution and the delivery of this Agreement nor the
consummation of the transactions contemplated by this Agreement will 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 any Contract to which the Company is a party or by which it is bound,
or to which any of its assets are subject. Neither the Company nor any Seller is
(with or without the lapse of time) in breach or default in any material respect
under any Contract listed in the Schedules or any other material Contract and,
to the Sellers' Knowledge, no other party to any Contract listed in the
Schedules or any other material Contract is (with or without the lapse of time
or the giving of notice, or both) in breach or default in any material respect.
The Company has not, except as disclosed in the applicable Schedule, received
any notice of the intention of any party to terminate any Contract listed in any
Schedule. The Sellers have provided to the Buyer complete and correct copies of
all Contracts listed in the Schedules, together with all modifications and
amendments.
2.13 ENVIRONMENTAL MATTERS.
(A) To the Sellers' Knowledge, the Company has complied with the
Comprehensive Environmental Response Compensation and Liability Act of 1980, the
Federal Water Pollution Control Act of 1972, the Clean Air Act of 1970, the Safe
Drinking Water Act of 1974, the Toxic Substances Control Act of 1976, the
Emergency Planning and Community Right to Know Act of 1986, the Superfund
Amendments and Reauthorization Act, the Federal Resource Conservation and
Recovery Act and the Hazardous Materials Transportation Act, each as amended as
of the Closing Date, or any other law of any Governmental Authority concerning
the release or threatened release of hazardous substances, public health and
safety or pollution or protection of the environment in connection with or
regarding the Company's business and the
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Company has not received any written notice claiming any failure to so comply
(collectively, "Environmental Laws").
(B) To the Sellers' Knowledge, the operation of the Company's
business does not in any material manner violate any applicable Environmental
Laws and the Company has not received any written notice claiming any such
violation. To the Sellers' Knowledge, there are no Hazardous Substances on any
Leased Real Property, in violation of any applicable Environmental Law. The
Company has not received any written notice of the presence of any Hazardous
Substances on any Leased Real Property, in violation of any applicable
Environmental Law. There is no pending, or to Sellers' Knowledge, threatened
claim, demand, action, suit, complaint, information request, or proceeding by
any Government Authority or any third party alleging liability or potential
liability under any Environmental Law. The Company has not assumed,
contractually or by operation of applicable law, any liabilities of any third
party under any Environmental Law.
2.14 INSURANCE.
(A) Schedule 2.14 contains a list and a brief description of the
type, amount of coverage and term of all such policies of insurance owned or
held by the Company and insuring the Company, each of which is in full force and
effect (the "Insurance Policies"). The Sellers have provided copies of each
Insurance Policy to the Buyer.
(B) The Company has paid all premiums with respect to the Insurance
Policies covering all periods up to and including the Closing Date (other than
retrospective premiums which may be payable with respect to worker's
compensation insurance policies), and the Company has not received any written
notice of cancellation or termination with respect to any Insurance Policy. The
Insurance Policies are valid, outstanding and enforceable and will not in any
way be affected by, or terminate or lapse by reason of, the transactions
contemplated by this Agreement.
(C) The Insurance Policies are sufficient for compliance with all
requirements of law and for all agreements to which the Company is a party and,
in the reasonable judgment of the Company's management, provide adequate
insurance coverage for the assets and operations of the Company in light of
present insurance market conditions.
(D) There are no outstanding claims by the Company under any
Insurance Policies. The Company has not been refused any insurance with respect
to its assets or operations nor has its coverage been limited by any insurance
carrier to which it has applied for any such insurance or with which it has
carried insurance during the thirty-six months immediately preceding the date of
this Agreement. All notices required to have been given by the Company to any
insurance company have been timely and duly given, and no insurance company has
asserted that any claim is not covered by the applicable policy relating to such
claim.
2.15 LABOR MATTERS.
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(A) The Company is not a party to or subject to any labor union or
collective bargaining agreement. The Company has not been the subject of any
labor union organizing activity. No representation petition respecting the
employees of the Company has ever been filed with the National Labor Relations
Board of which the Company has notice.
(B) The Company is in compliance with all Applicable Laws respecting
employment and employment practices, terms and conditions of employment and
wages and hours, and is not engaged in any unfair labor practice.
(C) There has not been, and there is not pending as of the date of
this Agreement, or, to the Sellers' Knowledge, threatened, any investigation,
administrative proceeding, claim, suit, or other proceeding initiated by the
Equal Employment Opportunity Commission, the National Labor Relations Board or
any other Governmental Authority in which the Company has been involved.
(D) There is not actually pending or, to the Sellers' Knowledge,
threatened against the Company (i) any labor strike, slowdown or work stoppage,
(ii) any grievance or arbitration proceeding, whether or not arising out of any
collective bargaining agreements, or (iii) any unfair labor practice complaint
against the Company before the National Labor Relations Board or otherwise. The
Company has not ever experienced any primary work stoppage or labor strike
involving its employees. Schedule 2.15 lists each grievance, discrimination
charge or other proceeding pending or, to the Sellers' Knowledge, threatened
against the Company by any current or former employee of, or consultant to, the
Company.
2.16 ERISA; BENEFIT PLANS.
(A) With respect to each "Benefit Plan" (as defined in Section 3(3)
of ERISA) and each employee agreement listed in Schedule 2.16, the Company has
performed all obligations required to be performed by it under each Benefit Plan
and employee agreement and the Company is not in default under or in violation
of the terms of any Benefit Plan or employee agreement.
(B) Each Benefit Plan was established and has been maintained in
compliance in all material respects with the applicable provisions of ERISA, the
Code and any other Applicable Law (including timely satisfying all reporting and
disclosure requirements under Applicable Law). No "prohibited transaction," as
defined in Section 406 of ERISA and Section 4975 of the Code, has occurred in
respect of any Benefit Plan. No civil or criminal action brought pursuant to
Part V of Title I of ERISA is pending or, to the Sellers' Knowledge, threatened
against any fiduciary of any such plan.
(C) With respect to qualified retirement plans, the Company
represents and warrants that the only qualified retirement plan that the Company
or any Affiliate maintains or has maintained during the past five years is a
defined contribution profit sharing plan (with a 401(k) feature). Neither the
Company nor any Affiliate has ever maintained, established, sponsored,
participated in or contributed to any qualified defined contribution money
purchase
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pension plan, qualified defined benefit pension plan (that is subject to ERISA
Title IV and Code Section 412), a "multiemployer pension plan" (as defined in
ERISA Section 3(37)), or a "multiple employer plan" as defined under ERISA and
the Code.
(D) The Internal Revenue Service ("IRS") has issued a favorable
determination letter for each employee pension Benefit Plan regarding the
qualification of such plan and its related trust under Code Sections 401(a) and
501(a), and there has been no occurrence since the date of any such
determination letter which has adversely affected such qualification. All
contributions to Benefit Plans are fully deductible under the Code as employer
contributions and there is no actual or potential liability for any tax under
Code Section 4972 on nondeductible contributions to Benefit Plans; and there is
no actual or potential liability for any tax under Code Section 4979 on excess
contributions to Benefit Plans. Any trust maintained in connection with a
Benefit Plan (and from its establishment) has been exempt from federal income
taxation under Code Section 501 and has not, at any time, had any "unrelated
business taxable income" (as defined under the Code Section 512) and, to the
Sellers' Knowledge, nothing has occurred with respect to the operation of any
such Benefit Plan that could cause the loss of such qualification of exemption
or the imposition of any liability, penalty or tax under Applicable Law.
(E) The Sellers have provided the buyer with true, correct, and
complete copies of all Benefit Plans, including all amendments, together with
copies of any related trust agreements, summary plan descriptions, IRS
determination letters, IRS Forms 5500 for the last three (3) fiscal years and
IRS summary annual reports for the last three (3) fiscal years and, since the
date of the documents delivered, there has not been a material change in the
assets or liabilities of any such plan.
(F) No action or failure to act and no transaction or holding of any
asset by, or with respect to, any Benefit Plan has or may subject the Company to
any Tax, penalty or other liability, whether by way of indemnity or otherwise.
There are no Proceedings pending, or to the Sellers' Knowledge, threatened or
anticipated (other than routine claims for benefits) against the Company or, to
the Sellers' Knowledge, pending, threatened or anticipated against any
administrator, trustee or other fiduciary of any Benefit Plan with respect to
any Benefit Plan, or against any such plan or against the assets of any such
plan. Each Benefit Plan and agreement can be amended, terminated or otherwise
discontinued without liability to the Company. The Company has made all accrued
contributions and other payments with respect to all periods through the date
hereof, and will make a pro-rata payment for the period ending as of the Closing
Date, in each case which are required by each Benefit Plan, each related trust
or by law to be made to, or with respect to each Benefit Plan (including all
insurance premiums, intercompany charges or Taxes with respect to each Benefit
Plan), or reserves adequate for such purposes as of the Closing Date have been
set aside and reflected on the latest Financial Statement. To the Sellers'
Knowledge, Benefit Plan is not under audit or investigation by the IRS, the
Department of Labor or the PBGC, and no such audit or investigation has been
threatened.
(G) Neither the execution and delivery of this Agreement nor the
consummation of any or all of the transactions contemplated hereby (other than
the Employment
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Agreements) will directly or indirectly result in any payment made or to be made
on behalf of any Person which constitutes a "parachute payment" within the
meaning of Section 280G of the Code. There is no agreement, plan, arrangement or
other contract by which the Company or any of its Affiliates is bound to
compensate any Employee for excise taxes paid pursuant to Code Section 4999.
Schedule 2.16 lists all persons who the Company reasonably believes are
"disqualified individuals" (within the meaning of Code Section 280G and the
regulations promulgated thereunder) as determined as of the date of this
Agreement. The Company has no liabilities, contingent or otherwise, with respect
to any Benefit Plan except those listed in Schedule 2.16, which is now or
presently has been sponsored, maintained, contributed to, or required to be
contributed to by the Company. All group health plans covering employees of the
Company have been operated in compliance with the continuation coverage
requirements of Section 4980B of the Code (and any predecessor provisions) and
Part 6 of Title I of ERISA and with HIPAA (including the portability,
non-discrimination and administrative simplification requirements of HIPAA).
(H) [intentionally omitted]
(I) Neither the Company nor any Affiliate has ever maintained,
established, sponsored, participated in, contributed to or promised to establish
(i) any "employee welfare benefit plan" (as defined in ERISA Section 3(1)) that
provides benefits to or on behalf of any Person following retirement or other
termination of employment (other than to the extent required by Code Section
4980B), (ii) any self-insured plan that provides benefits to employees
(including any such plan pursuant to which a stop-loss policy or contract
applies), (iii) any multiemployer or multiple employer welfare arrangement, fund
or plan (as defined under ERISA), or (iv) any "funded welfare plan" within the
meaning of Code Section 419.
(J) Schedule 2.16 contains a complete list of all deferred
compensation, severance, pension, profit-sharing, stock option and retirement
plans, and all material bonus and other employee benefit or fringe benefit
plans, and all employment, severance, management or similar agreements or
contracts which the Company maintains or maintained, or under which the Company
has or had any obligations, with respect to any employee or former employee,
officer or former officer, director or former director, now or at any time
during the past five years (the "Benefit Plans"). Accurate and complete copies
of all such plans and documents have been provided to the Buyer.
2.17 LITIGATION. Except as set forth in Schedule 2.17, there is no
Proceeding or claim (including any grievance or discrimination charge) pending
or, to the Sellers' Knowledge, threatened against the Company before any
Governmental Authority or any arbitral body (other than legal actions brought by
the Company against a debtor to collect a Charged Off Account ). None of the
legal actions listed in Schedule 2.17, if adversely determined with respect to
the Company, would have a Material Adverse Effect on the Company, individually
or in the aggregate. Neither the Company nor any of its assets is subject to any
outstanding order judicial, writ, injunction or decree whatsoever.
2.18 TAXES.
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(A) The Company has not entered into any written agreements, not
failed to pay any Taxes or otherwise taken any actions or failed to take any
actions that would result in the disallowance of any payroll expense deductions
pursuant to the Code.
(B) The Company has filed on or before the date of this Agreement
(or will timely file) all Tax Returns required to be filed on or before the
Closing Date. The Company has not requested or received an extension of time to
file any Tax Return that would be required to be filed on or before the Closing
Date absent such extension.
(C) All such Tax Returns are complete and accurate in all material
respects and disclose all Taxes required to be paid by the Company for the
periods covered by such Tax Returns and all Taxes shown to be due on such Tax
Returns have been timely paid.
(D) The Company has not waived or been requested to waive any
statute of limitations in respect of Taxes.
(E) There is no action, suit, investigation, audit, claim or
assessment pending or, to the Sellers' Knowledge, proposed or threatened with
respect to Taxes of the Company. No action, suit, investigation, audit, claim or
assessment is pending or, to the Sellers' Knowledge, proposed or threatened with
respect to the Company that will result in any obligation or liability,
financial or otherwise, of the Buyer or the Company.
(F) All deficiencies asserted or assessments made as a result of any
examination of the Tax Returns referred to in Section 2.18(a) have been paid in
full.
(G) There are no liens for Taxes upon the assets of the Company.
(H) All Taxes which the Company is required by law to withhold or to
collect for payment have been duly withheld and collected, and have been paid or
accrued.
(I) The accruals for deferred Taxes reflected in the Financial
Statements are adequate to cover any deferred Tax liability of the Company
determined in accordance with GAAP through the Closing Date.
(J) There are no Tax rulings, requests for rulings, or closing
agreements relating to the Company which could affect the Company's liability
for Taxes for any period after the Closing.
(K) All assets reflected on the Financial Statements are properly
treated as owned by the Company for all income Tax purposes.
(L) None of the Sellers or the Company has any Knowledge of any
facts that, if known to any Taxing authority, would likely result in the
issuance of a notice of proposed deficiency or similar notice of intention to
assess Taxes against the Company.
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(M) Since January 1, 2006, neither the Sellers or the Company has
taken any action not in accordance with past practice that would have the effect
of deferring any Tax liability for the Company from any Taxable period ending on
or before the Closing to any Taxable period ending after the Closing.
(N) Except with the prior written consent of the Buyer, none of the
income recognized, for federal, state, local, or foreign income Tax purposes by
the Company during the period beginning on January 1, 2006, and ending on the
Closing Date will (i) be derived other than in the ordinary course of business,
or (ii) arise from transactions of a type not reflected on the relevant Tax
Returns for the Taxable period ending on the Closing Date.
(O) No excess loss account (as described in Treasury Regulation
Sections 1.1502-19, 1.1502-18T, and 1.1502-32) exists with respect to the
Company.
(P) No power of attorney has been granted with respect to any matter
relating to Taxes of the Company which is currently in force.
(Q) No Taxes with respect to periods after January 1, 2006, were
paid by the Company on or after such date which were not included in the
provision for Taxes in the Financial Statements.
(R) The Company has not disposed of property in a transaction being
accounted for under the installment method pursuant to Sections 453 or 453A of
the Code.
(S) The Company has no corporate acquisition indebtedness, as
described in Section 279(b) of the Code.
(T) No transaction contemplated by this Agreement is subject to
withholding under Section 1445 of the Code and no stock transfer Taxes, real
estate transfer Taxes, or other similar Taxes will be imposed on the transfer of
the Shares pursuant to this Agreement.
(U) The IRS has examined the federal Tax returns of the Company for
all periods ending prior to and including the period ending December 31, 1999.
All open Tax years of the Sellers and the Company are listed in Schedule
2.18(w).
(V) With respect to backup withholdings, the Company has exercised
the degree of care required under Section 6724 of the Code to avoid the
imposition of any penalties for failure to obtain certified and correct Taxpayer
identification numbers from payees or for failure to make backup withholdings.
2.19 AFFILIATE TRANSACTIONS.
(A) Except as disclosed in Schedule 2.19, and other than accrued but
unpaid salary due from the end of the last pay period and routine payments
pursuant to the Benefit Plans or unpaid routine business expenses (which in no
event shall exceed $2,000), there are no amounts owing from the Company to any
present or former stockholder, affiliate, officer,
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director, member or employee of the Company or to any Seller or any Family
Member or Affiliate of any of the foregoing, nor are there any amounts owing
from any such Person to the Company. For purposes of this Section 2.19, "Family
Member" means the spouse, parents, children and siblings of such Person.
(B) Other than pursuant to this Agreement or as disclosed in the
Schedules, no officer, director or manager of the Company nor any Seller nor any
Family Member or Affiliate of any of the foregoing nor any entity in which any
of such Persons owns any beneficial interest (other than any publicly-held
corporation whose stock is traded on a national securities exchange or in the
over-the-counter market and less than five percent (5%) of the stock of which is
beneficially owned by any of such Persons) (collectively, "Insiders"), or any
interest in any property, real, personal or mixed, intellectual, tangible or
intangible, used in or pertaining to the business of the Company. None of the
Insiders has any direct or indirect interest in any competitor, supplier or
customer of the Company, or in any Person from whom or to whom the Company
leases any property, or in any other Person with whom the Company transacts
business of any nature (other than interests of less than five percent (5%) of
any publicly-held corporation).
2.20 CHANGE IN CONTROL AGREEMENTS. The Company is not a party to any plan,
agreement, contract, authorization or arrangement pursuant to which any
participant, beneficiary or party is or will become entitled to any benefit upon
a change of control of the Company.
2.21 SUPPLIERS OF CHARGED OFF ACCOUNTS. Schedule 2.21 sets forth for each
of the fiscal years 2003, 2004, and 2005, and the current fiscal year the name
and address of each of the ten largest suppliers of Charged Off Accounts to the
Company based on the aggregate value of receivables purchased by the Company
during each such period, and the amount the Company paid such suppliers during
each such period.
2.22 CHARGED OFF ACCOUNTS. The Company has good and marketable title free
of any Liens (other than claims on the obligor thereunder) to all of the Charged
Off Accounts and Consumer Credit Accounts reflected in the Financial Statements
and those acquired by the Buyer subsequent to September 30, 2005 (and not
collected prior to Closing). Such Charged Off Accounts and Consumer Credit
Accounts were acquired by the Company from third parties in the ordinary course
of business consistent with past practice. To the Sellers' Knowledge, none of
the representations or warranties, if any, in the agreements pursuant to which
the Company acquired such Charged Off Accounts or Consumer Credit Accounts has
been breached in any material respect.
2.23 OFFICERS, DIRECTORS, MANAGERS AND EMPLOYEES.
(A) Schedule 2.23 lists (i) the name and total current annual rate
of compensation (including bonuses, commissions or incentive compensation) of
each officer and director of the Company, and (ii) the name, and aggregate
amount of total annual compensation (including bonuses, commissions or incentive
compensation) paid for federal income Tax purposes during calendar year 2005 to
each other employee whose current annualized base pay is
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in excess of $50,000. None of the Persons referred to in clause (i) or (ii)
above has notified in writing the Company or been notified in writing by the
Company that he or she will cancel, has canceled, or otherwise will terminate
such Person's relationship with the Company.
(B) Schedule 2.23 also contains a true, correct and complete list of
all the individuals who (i) are officers, directors or managers of the Company
and of the Subsidiary on the date of this Agreement, or (ii) were officers and
directors of the Company or of the Subsidiary at any time within the twelve
months immediately preceding the date of this Agreement.
2.24 EFFECT OF TRANSACTION. No creditor, employee or customer or other
Person having a material business relationship with the Company has informed the
Sellers or the Company that such Person intends to change the relationship
because of the transactions contemplated in this Agreement. To the Sellers'
Knowledge, no creditor, employee or customer or other Person having a material
business relationship with the Company intends to change the relationship
because of the transactions contemplated in this Agreement.
2.25 COMPLIANCE WITH LAWS.
(A) The business of the Company (both past and current) has been
conducted in compliance with all Applicable Laws, including insurance, the
payment and withholding of Taxes and third party payment programs as they have
been in effect from time to time.
(B) Neither the Sellers nor the Company has received any notice of
any violation or claim of violation of, or any liability or claim of liability
related to, any Applicable Law on the operations (both past and current) of the
Company including, those relating to zoning, land use and occupancy
environmental, occupational health and hazardous substances or hazardous waste,
insurance and third party payment programs, which have not been fully and
completely remedied, nor do there exist any facts which would provide a basis
for any such violation or liability or claim of violation or liability.
(C) To the Sellers' Knowledge, the Company is in full compliance
with the Health Insurance Portability and Accountability Act of 1996 ("HIPAA")
and regulations promulgated under HIPAA, and the Company has not received any
written notice claiming any failure to so comply.
2.26 POWERS OF ATTORNEY. No power of attorney has been granted with
respect to any matter relating to the Company which is currently in force.
2.27 BOOKS AND RECORDS. The minute books, books of account and other
financial records of the Company are accurate, correct and complete and have
been maintained in accordance with appropriate business practices.
2.28 BANK ACCOUNTS. Schedule 2.28 includes a true and complete list, as of
the date of this Agreement, of the names and locations of all banks, securities
firms, or other financial institutions at which any of the Company has an
account or safe deposit box and the names of
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persons authorized to sign checks, drafts or other instruments drawn on such
accounts or to have access to such accounts or safe deposit boxes. In addition,
Schedule 2.28 lists the amount of cash, cash equivalents and marketable
securities on hand as of the date of this Agreement.
2.29 ABSENCE OF CERTAIN COMMERCIAL PRACTICES.
(A) The Company has not, and no director, officer, agent, manager,
employee or other Person acting on behalf of the Company has, in violation of
federal or state law: (i) given or agreed to give any gift or similar benefit of
more than nominal value to any customer, supplier, governmental employee or
official or any other Person who is or may be in a position to help or hinder
the Company or assist in connection with any proposed transaction; or (ii) used
any corporate or other funds for unlawful contributions, payments, gifts, or
entertainment, or made any unlawful expenditures relating to political activity
to governmental officials or others or established or maintained any unlawful or
unrecorded funds. The Company has not, and no director, officer, agent, manager,
employee or other Person acting on behalf of the Company has, with respect to
the Company, accepted or received any unlawful contributions, payments, gifts,
entertainment or expenditures.
(B) Neither the Company, any director, officer, agent or employee of
the Company, nor any other Person associated with or acting for or on behalf of
the Company, has directly or indirectly:
(i) made any contribution, gift, bribe, rebate, payoff,
influence payment, kickback or other payment to any person, private
or public, regardless of form, whether in money, property or
services (A) to obtain favorable treatment in securing business, (B)
to pay for favorable treatment for business secured, (C) to obtain
special concessions or for special concessions already obtained, for
or in respect of the Company, or (D) in violation of any law; or
(ii) established or maintained any fund or asset that has not
been recorded in the books and records of the Company.
2.30 ACCOUNTING METHODS.
(A) Neither the Sellers, the Company nor any director, officer,
employee, auditor, accountant or representative of the Company has received or
otherwise had or obtained knowledge of any complaint, allegation, assertion or
claim, whether written or oral, regarding the accounting or auditing practices,
procedures, methodologies or methods of the Company or any of its internal
controls over financial reporting, including any complaint, allegation,
assertion or claim that the Company has engaged in fraudulent accounting or
auditing practices.
(B) There have been no instances of fraud that occurred during any
period covered by the Financial Statements involving the management of the
Company or other employees of the Company who have a significant role in the
Company's internal control over financial reporting.
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(C) The Sellers shall have no liability for any Losses (as defined
below) in connection with the Financial Statements that the Buyer may incur as a
result of changes to the accounting or auditing practices, procedures,
methodologies or methods of the Company by the Buyer or its affiliates after the
Closing Date which are inconsistent with GAAP as consistently applied by the
Company.
2.31 FULL DISCLOSURE. No representation or warranty of the Sellers
contained in this Agreement or in any Schedule, Exhibit or Annex to this
Agreement delivered to the Buyer pursuant to, or in connection with, this
Agreement contains an untrue statement of a material fact or omits to state a
material fact required to be stated in such statements or necessary to make the
statements made, in the context in which made, not materially false or
misleading.
2.32 NO REPRESENTATIONS. The Sellers shall not be deemed to have made to
the Buyer any representation or warranty other than as expressly made by the
Sellers in this Article II. Without limiting the generality of the foregoing,
and notwithstanding any otherwise express representations and warranties made by
the Sellers in this Article II, the Sellers make no representation or warranty
to the Buyer with respect to:
(A) any projections, estimates and budgets heretofore delivered to
or made available to the Buyer of future revenues, expenses or expenditures,
future results of operations (or any component thereof), future cash flows or
future financial condition (or any component thereof) of the Company or the
future business and operations of the Company, except that the Sellers represent
and warrant that such projections, estimates and budgets were prepared in good
faith based on reasonable assumptions at the time prepared; or
(B) any other information or documents made available to the Buyer
or its counsel, accountants or advisors with respect to the Sellers, the Company
or the business and operations of the Company, except as expressly covered by a
representation and warranty contained in this Article II.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer represents and warrants to the Sellers as follows. All of the
representations and warranties of the Buyer are made as of the date of this
Agreement and as of the Closing Date.
3.1 ORGANIZATION AND QUALIFICATION. The Buyer is duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
full corporate power and authority to carry on its business as presently
conducted. The Buyer is duly qualified and in good standing to do business in
each jurisdiction in which such qualification is necessary because of the nature
of the business conducted by it, except where the failure to be so qualified
would not have a Material Adverse Effect.
3.2 AUTHORITY; EXECUTION AND DELIVERY; ENFORCEABILITY. The Buyer has the
requisite power and authority to enter into this Agreement, to perform its
obligations under this
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Agreement and to carry out the transactions contemplated by this Agreement and
all proceedings required to be taken by the Buyer to authorize the execution,
delivery and performance of this Agreement have been duly and properly taken.
This Agreement has been duly and validly executed and delivered by the Buyer,
and this Agreement constitutes a valid and binding agreement of the Buyer
enforceable in accordance with its terms, subject to general principles of
equity and applicable bankruptcy, insolvency, reorganization, and fraudulent
conveyance or similar or other laws affecting the enforcement of creditors'
rights generally.
3.3 NO CONFLICTS; CONSENT. The execution and delivery by the Buyer of this
Agreement does not and the consummation of the transactions contemplated by this
Agreement will not conflict with, or result in any violation of or default (with
or without notice or lapse of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of any obligation or a loss of a
material benefit under, or result in the creation of any Lien upon any of the
properties or assets of the Buyer under any provision of (a) any Contract to
which the Buyer is a party or by which any of its properties or assets is bound,
or (b) any injunction, judgment, order, decree, ruling or charge or Applicable
Law applicable to the Buyer or its properties or assets. No Consent of, or
registration, declaration or filing with, any Governmental Authority is required
to be obtained or made by or with respect to the Buyer in connection with the
execution, delivery and performance of this Agreement or the consummation of the
transactions contemplated this Agreement.
3.4 INVESTMENT INTENT. The Buyer acknowledges that the Shares have not
been registered under the Securities Act and that the Shares may not be resold
absent such registration or unless an exemption from registration is available.
The Buyer is acquiring the Shares for its own account, for investment purposes
only and not with a view toward a distribution of the Shares. The Buyer
qualifies as an "accredited investor," as such term is defined in Rule 501(a)
promulgated pursuant to the Securities Act.
3.5 LITIGATION. There is no action, suit, investigation or proceeding
pending against, or, to the knowledge of the Buyer, threatened against or
affecting, the Buyer before any court or arbitrator or any Governmental
Authority which in any manner challenges or seeks to prevent, enjoin, alter or
materially delay the transactions contemplated by this Agreement.
ARTICLE IV
COVENANTS
All of the covenants contained in this Article IV are made as of the date
of this Agreement and as of the Closing Date.
4.1 EXPENSES; TRANSFER TAXES.
(A) Except as otherwise expressly provided for in this Agreement,
the Buyer will pay all of its own expenses (including fees and expenses of
attorneys, accountants, investment bankers, brokers, and other professional
advisors) in connection with the negotiation of this Agreement, the performance
of its obligations under this Agreement and the
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consummation of the transactions contemplated by this Agreement (whether
consummated or not).
(B) Except as otherwise expressly provided for in this Agreement,
the Sellers will each pay all of their own investment banking and broker fees
and expenses (including all amounts due and owing to Kaulkin Xxxxxxxx Company
arising out of or relating to the transaction contemplated by this Agreement)
and all fees and expenses of attorneys, accountants, investment bankers,
brokers, and other professional advisors arising out of or relating to the
negotiation of any employment or non-competition agreement. Except as set forth
in the preceding sentence, the Buyer shall cause the Company or its designee to
pay the attorneys and accountants fees and expenses (but no other professional's
fees and expenses) (the "Professional Fees") incurred on behalf of the Sellers
in connection with the negotiation of this Agreement and the consummation of the
transactions contemplated by this Agreement (whether consummated or not) up to a
maximum amount of $100,000; provided, however, that the Sellers shall provide to
the Buyer detailed invoices from each applicable law firm and accounting firm
describing such fees and expenses not later than fifteen days after the Closing
Date. The Buyer shall pay the Professional Fees at the Closing or not later than
five days after receiving such detailed invoices, whichever is later. As between
the Buyer and the Sellers, the Sellers, jointly and severally, shall be
responsible for paying any Professional Fees in excess of $100,000. As among the
Sellers, each Seller agrees that such Seller shall be responsible for any and
all of their Professional Fees in excess of the amount paid by the Buyer or the
Company pursuant to this section.
(C) All transfer, documentary, sales, use, registration, value-added
and other similar Taxes (including all applicable real estate transfer Taxes and
real property transfer gains Taxes and including any filing and recording fees)
and related amounts (including any penalties, interest and additions to Tax)
incurred in connection with the Agreement and the transactions contemplated this
Agreement ("Transfer Taxes") will be paid by the Sellers. Each Party will use
commercially reasonable efforts to avail itself of any available exemptions from
any such Transfer Taxes, and to cooperate with the other parties in providing
any information and documentation that may be necessary to obtain such
exemptions.
4.2 BROKERS OR FINDERS. Each of the Parties represents that no agent,
broker, investment banker or other firm or Person is or will be entitled to any
broker's or finder's fee or any other commission or similar fee in connection
with any of the transactions contemplated by this Agreement. The Sellers will
pay or otherwise discharge, and will indemnify and hold the Buyer harmless from
and against and claims or liabilities for all brokerage fees, commissions and
finder's fees incurred by reason of any action taken by or on behalf of the
Company or any Seller. The Buyer will pay or otherwise discharge, and will
indemnify and hold the Sellers harmless from and against and any claims or
liabilities for all brokerage fees, commissions and finder's fees incurred by
reason of any action taken by or on behalf of the Buyer.
4.3 POST-CLOSING COOPERATION.
(A) After the Closing, upon reasonable written notice, the Buyer
will furnish or cause to be provided to the Sellers and their counsel, auditors
and representatives access,
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during normal business hours, to such information and assistance relating to the
Company as is reasonably necessary for financial reporting and accounting
matters.
(B) After the Closing, upon reasonable written notice, the Parties
will furnish or cause to be provided to each other, as promptly as practicable,
such information and assistance (to the extent within the control of such party)
relating to the Company (including access to books and records in any form or
medium) as is reasonably necessary for the filing of all Tax returns, and making
of any election related to Taxes, the preparation for any audit by any Taxing
Authority, and the prosecution or defense of any claim, suit or proceeding
related to any Tax return. The Parties will cooperate with each other in the
conduct of any audit or other proceeding relating to Taxes involving the
Company.
(C) Each Party will reimburse the other for reasonable out-of-pocket
costs and expenses incurred in assisting the other pursuant to this Section 4.3.
No Party will be required by this Section 4.3 to take any action that would
unreasonably interfere with the conduct of its business or unreasonably disrupt
its normal operations.
(D) Each Party will use commercially reasonable efforts to cooperate
with and make available to each other, during normal business hours, all books
and records, information and employees (without substantial disruption of
employment) retained and remaining in existence after the Closing Date which are
necessary or useful to the other in connection with any litigation or
investigation or any other matter requiring any such books and records,
information or employees for any reasonable business purpose related to their
involvement with the Company or the transactions contemplated by this Agreement,
for a period reasonably necessary after the Closing Date to comply with each
Party's obligation under contracts, at law, or with respect to Taxes. The Party
making the request under this Section 4.3(d) will bear all of the out-of-pocket
costs and expenses (including attorneys' fees, but excluding reimbursement for
salaries, wages, and employee benefits) reasonably incurred in connection with
providing such books and records, information or employees.
4.4 PUBLICITY. After the Closing Date, no public release or announcement
concerning the transactions contemplated by this Agreement will be issued by any
Seller, on the one hand, or the Buyer, on the other hand, without the prior
consent of the Buyer or the Sellers, as the case may be (which consent may not
be unreasonably withheld), provided, however, than any Party may make any public
disclosure it believes in good faith is required by Applicable Law or any
listing or trading agreement concerning its publicly-traded securities, in which
case the Party required to make the release or announcement will allow, within
applicable statutory and regulatory time constraints, the other Parties
reasonable time to comment on such release or announcement in advance of such
issuance.
4.5 TAX COVENANTS.
(A) The Sellers will timely cause to be prepared and filed by the
Company all Tax Returns of the Company with respect to any Taxable period ending
on or prior to the Closing Date and timely pay, or cause to be paid by the
Company, consistently with past practice
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when due all Taxes relating to such Tax Returns. If any Tax Return has not been
filed before the Closing Date, before filing such Tax Return, the Sellers will
provide the Buyer with a substantially final draft of such Tax Return at least
fifteen Business Days prior to the due date for filing such Tax Return, and the
Buyer will have the right to review such Tax Return prior to the filing of such
Tax Return. The Buyer will notify the Sellers of any objections the Buyer may
have to any items set forth in such draft Tax Returns, and the Buyer and the
Sellers agree to consult and resolve in good faith any such objection and to
mutually consent to the filing of such Tax Return. Such Tax Returns will be
prepared or completed in a manner consistent with prior practice of the Sellers
and the Company with respect to Tax Returns concerning the income, properties or
operations of the Company (including elections and accounting methods and
conventions), except as otherwise required by law or regulation or otherwise
agreed to by the Buyer prior to the filing of such Tax Returns.
(B) The Buyer will have the right to represent the interests of the
Company in any Tax audit or administrative or court proceeding relating to any
Tax Returns (including any proceeding relating to the Company for periods prior
to the Closing Date).
(C) The Buyer shall have received from the Sellers, on or before the
Closing Date, an affidavit to the effect that the Seller is not a "foreign
person" within the meaning of Code Section 1445. If, on or before the Closing
Date, the Buyer shall not have received such affidavit from the Sellers, the
Buyer may withhold from the Purchase Price payable at Closing to the Sellers
pursuant to this Agreement such sums as are required to be withheld under
Section 1445 of the Code.
(D) The Sellers will be liable for, and will pay when due (i) any
transfer, gains, documentary, sales, use, registration, stamp, value added or
other similar Taxes payable by reason of the transactions contemplated by this
Agreement or attributable to the sale, transfer or delivery of the Shares under
this Agreement, and (ii) other Taxes imposed on Sellers or any former
shareholder of the Company for which the Buyer or the Company is held liable.
Other than in the case of Tax Returns and other documentation that is required
to be filed by the Company after the Closing Date, the Sellers will, at their
own expense, file all necessary Tax Returns and other documentation with respect
to all such Taxes.
(E) After the Closing Date, the Buyer will not amend any of the
Company's or the Subsidiary's Tax Returns filed prior to the Closing Date
without affording the Sellers' Representative an opportunity to review and
object to such amended returns. If the Buyer and the Sellers' Representative are
not able to resolve any disputes that may arise with respect to any such
objection, then the Buyer and the Sellers' Representative shall submit the items
remaining in dispute to the Independent Accountants for resolution pursuant to
the procedure set forth in, and subject to the terms of, Section 1.6.
4.6 CONDUCT OF BUSINESS.
(A) During the period from the date of this Agreement until the
Closing Date (unless the Buyer otherwise agrees in writing and except as
otherwise contemplated by this
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Agreement), the Sellers shall cause the Company to conduct its operations
according to its ordinary and usual course of business consistent with past
practice and with no less diligence and effort than would be applied in the
absence of this Agreement, and seek to preserve intact its current business
organization. Prior to the Closing, the Sellers shall cause the Company not to
take any action that would, or that could reasonably be expected to, result in
any of the conditions to the consummation of the transactions contemplated by
this Agreement in Article V not being satisfied.
(B) Without limiting the generality of the foregoing, and except as
otherwise permitted in this Agreement or consented to in writing by the Buyer,
prior to the Closing Date, the Sellers will cause the Company to:
(i) not declare, set aside or pay any dividend or other
distribution (whether in cash, stock or property or any combination
thereof) in respect of its capital stock or other equity interests,
or issue, pledge or sell any shares of its capital stock or other
equity interests or other securities convertible into, exchangeable
for or conferring the right to acquire shares of their capital stock
or other equity interests, or repurchase or redeem or otherwise
acquire any shares of its capital stock or other equity interests or
such other securities;
(ii) not waive a material right or cancel a material contract
or claim or assume or enter into a material contract of any kind,
including the purchase of any Charged Off Accounts;
(iii) not to make any investment of any kind in any Person; or
(iv) not authorize, recommend, propose or announce an
intention to do any of the foregoing, or enter into any contract,
agreement, commitment or arrangement to do any of the foregoing.
4.7 COMMERCIALLY REASONABLE EFFORTS. Each of the Parties will use
commercially reasonable efforts to take all actions and to do all things
reasonably necessary to consummate and make effective the transactions
contemplated by this Agreement (including satisfaction, but not waiver, of the
closing conditions in Article V). Each Party will give prompt written notice to
the other of (a) the occurrence, or failure to occur, of any event which
occurrence or failure would be likely to cause any representation or warranty of
the Sellers or the Buyer, as the case may be, contained in this Agreement to be
untrue or inaccurate in any material respect at any time from the date of this
Agreement until the Closing or that will or may result in the failure to satisfy
any of the conditions in Article V, and (c) any failure of the Sellers or the
Buyer, as the case may be, to comply with or satisfy any covenant, condition or
agreement to be complied with or satisfied by it pursuant to this Agreement.
4.8 SUPPLEMENTS TO DISCLOSURE SCHEDULES. Each Party will promptly notify
the other Parties, prior to the Closing Date, of any changes in the information
contained in the Schedules
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or in any document or information supplied to the other Parties pursuant to a
Schedule. Such information will not be deemed to amend the Schedules.
4.9 NO SOLICITATION. From the date of this Agreement until the Closing
Date or until this Agreement is terminated or abandoned as provided for in this
Agreement, the Sellers may not, and may not permit the Company or any of their
or the Company's agents or representatives to, solicit or initiate (including by
way of furnishing any information) discussions with or enter into negotiations
with, or furnish any information that is not publicly available to, any Person
(other than the Buyer pursuant to this Agreement) concerning any business
combination transaction (an "Acquisition Proposal") involving the Company. The
Sellers will notify the Buyer promptly in writing if any Seller becomes aware
that any inquiries or proposals are received by, any information is requested
from, or any negotiations or discussions are sought to be initiated with the
Company with respect to an Acquisition Proposal.
ARTICLE V
CONDITIONS
5.1 CONDITIONS TO ALL PARTIES' OBLIGATIONS. The obligations of the Buyer
to purchase the Shares and the obligations of the Sellers to sell the Shares to
the Buyer are subject to the satisfaction or waiver on or prior to the Closing
of the following conditions.
(A) GOVERNMENTAL APPROVALS. The Buyer shall have obtained all
Consents, approvals, orders, qualifications, licenses, permits or other
authorizations and waivers from any Governmental Authority or other third party
necessary to permit the transactions contemplated by this Agreement.
(B) NO INJUNCTIONS, RESTRAINTS, OR CHANGES IN LAW. No Applicable Law
or injunction enacted, entered, promulgated, enforced or issued by any
Governmental Authority or other legal restraint or prohibition preventing the
consummation of the transactions contemplated by this Agreement shall be in
effect. There shall not have been any change in any law or regulation or other
action by any Governmental Agency that would have a Material Adverse Effect on
the ability of the Buyer to operate the Company's business in a manner
comparable to the manner in which the Companies are operating the business on
the date of this Agreement.
5.2 CONDITIONS TO THE OBLIGATIONS OF THE BUYER. The obligations of the
Buyer to consummate the transactions contemplated by this Agreement are subject
to the fulfillment on or before the Closing Date of the following conditions,
any of which may be waived in whole or in part by the Buyer to the extent
permitted by Applicable Law.
(A) The representations and warranties of the Sellers contained in
this Agreement shall be true and correct in all material respects (other than
representations and warranties that are qualified as to materiality, which shall
be true and correct in all respects) on and as of the Closing Date, except to
the extent that any representation or warranty is made as of a specified date,
in which case such representation or warranty shall be true in all material
respects (other than representations and warranties that are qualified as to
materiality, which
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shall be true and correct in all respects) as of such date. Upon receiving the
Closing Date Purchase Price Payment, each Seller shall have certified as to the
fulfillment of the conditions in this Section 5.2(a) with respect to such
Seller.
(B) The Sellers shall have performed or complied in all material
respects with all obligations and covenants required by this Agreement to be
performed or complied with by the Sellers by the time of the Closing. Upon
receiving the Closing Date Purchase Price Payment, each Seller shall have
certified as to the fulfillment of the conditions in this Section 5.2(b) with
respect to such Seller.
(C) The Sellers shall have made all of the deliveries contemplated
by Section 1.10.
(D) All of the Schedules shall be acceptable to the Buyer, in its
sole discretion, in form and content.
(E) There shall not be in effect any statute, rule or regulation
which makes it illegal for the Buyer to consummate the transactions contemplated
by this Agreement or any order, decree or judgment which enjoins the Buyer or
the Sellers from consummating the transactions contemplated by this Agreement.
(F) There shall not have been any material error, misstatement or
omission in this Agreement or any exhibit, schedule or other document delivered
in connection with this Agreement.
(G) During the period from the date of this Agreement to the Closing
Date (i) there shall not have been any Material Adverse Change to the Company
(whether as a result of any casualty or disaster, accident, labor dispute,
exercise of the power of eminent domain or other governmental act, or as a
result of any other event or circumstance) and (ii) the Company shall not have
sustained any loss or damage to its properties, whether or not insured, which
affects its ability to conduct its business.
5.3 CONDITIONS TO THE OBLIGATIONS OF THE SELLERS. The obligations of the
Sellers to consummate the transactions contemplated by this Agreement is subject
to the fulfillment on or before the Closing Date of the following conditions,
any or all of which may be waived in whole or in part by the Sellers to the
extent permitted by Applicable Law:
(A) The representations and warranties of the Buyer contained in
this Agreement shall be true and correct in all material respects (other than
representations and warranties that are qualified as to materiality, which shall
be true and correct in all respects) on and as of the Closing Date, except to
the extent that any representation or warranty is made as of a specified date,
in which case such representation or warranty shall be true in all material
respects (other than representations and warranties that are qualified as to
materiality, which shall be true and correct in all respects) as of such date.
The Sellers shall have received a certificate signed by an officer of the Buyer
certifying as to fulfillment of the conditions in this Section 5.3(a).
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(B) The Buyer shall have performed or complied in all material
respects with all obligations and covenants required by this Agreement to be
performed or complied with by the Buyer by the time of the Closing, and the
Sellers shall have received a certificate signed by an officer of the Buyer
certifying as to the fulfillment of the conditions in this Section 5.3(b).
(C) The Buyer shall have tendered the Purchase Price.
(D) The Buyer shall have made all of the deliveries contemplated by
Section 1.11.
(E) There shall not be in effect any statute, rule or regulation
which makes it illegal for the Sellers to consummate the transactions
contemplated by this Agreement or any order, decree or judgment which enjoins
the Buyer or the Sellers from consummating the transactions contemplated by this
Agreement.
5.4 DUE DILIGENCE MATERIALS. The Sellers will, and the Sellers will cause
the Company to, permit representatives of the Buyer to have reasonable access,
during ordinary business hours, and in a manner so as not to interfere with the
normal business operations of each Company, to all premises, properties,
personnel, books, records (including Tax or financial records), contracts and
documents of or pertaining to the Companies (collectively, the "Due Diligence
Materials"). Any confidential information received by the Buyer from the Sellers
in the course of the reviews contemplated by this Section 5.4 which is not
already generally available to the public will be treated and held as
confidential information in accordance with the Confidentiality Agreement
between Asset Acceptance Capital Corp. and the Company, dated January 30, 2006
(the "Confidentiality Agreement"). When conducting the Due Diligence Review, the
Buyer will not unreasonably interfere with the use and operation of the Company.
ARTICLE VI
INDEMNIFICATION
6.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES AND COVENANTS.
(A) Except as provided below, the representations and warranties of
the Parties contained in this Agreement will survive the Closing Date until the
second anniversary of the Closing Date.
(B) The following representations and warranties shall survive the
Closing Date for the applicable statute of limitations period under which claims
may be asserted: Sections 2.1 (Organization; Qualification), 2.2 (Subsidiaries;
Investments), 2.3 (Authority; No Violation or Consent), 2.4 (Capitalization;
Ownership of Common Stock; Passive Investor Status), 2.8(b) (No Dividends or
Distributions), 2.9 (Ownership and Condition of Assets Other Than Real
Property), 2.16 (ERISA; Benefit Plans) and 2.18 (Taxes), 2.19 (Affiliate
Transactions), 3.1 (Organization and Qualification), 3.2 (Authority; Execution
and Delivery; Enforceability), and 3.3 (No Conflicts; Consent).
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(C) Except as specifically set forth in this Agreement, the Parties'
obligations under any covenant made pursuant to this Agreement shall survive the
Closing Indefinitely.
6.2 INDEMNIFICATION BY THE SELLERS. The Sellers, jointly and severally,
shall indemnify and hold Buyer and (without duplication) its officers,
directors, equity holders, members, managers, employees, agents, and
representatives (collectively, the "Buyer Indemnified Parties") harmless from
and against any liabilities, losses, damages, deficiencies, judgments, fines,
costs and expenses, including reasonable counsel fees ("Losses"), incurred or
sustained by any Buyer Indemnified Parties that result from, relate to, or arise
out of:
(A) any breach of any representation or warranty or nonfulfillment
of any agreement or covenant on the part of any Seller under this Agreement;
(B) any action, suit, claim or proceeding incident to any of the
foregoing or to the enforcement of this Article VI;
(C) any liabilities for Taxes, including any disallowance for
payroll expenses, owed by the Company on or after the Closing Date with respect
to any taxable period ending on or prior to the Closing Date (treating any
Taxable period that begins before and ends after the Closing Date as if such
Taxable period had ended on the Closing Date), to the extent such liabilities
have not been accounted for pursuant to Section 1.6;
(D) any failure of the Company to obtain or maintain any required
Licenses or to make any required report or filing with any Governmental
Authority; and
(E) any Losses arising out of or related to any claim which may be
brought by, or on behalf of, Xxxxx Xxxxx or his successors, assigns and heirs
against the Company or any Buyer Indemnified Party, including any claims made by
any Governmental Authority relating to Xxxxx Xxxxx.
6.3 INDEMNIFICATION BY THE BUYER. The Buyer shall indemnify and hold each
Seller and (without duplication) his, her or its officers, directors, equity
holders, partners, employees, agents, representatives or heirs (collectively,
the "Sellers Indemnified Parties") harmless from and against any Losses incurred
or sustained by any Sellers Indemnified Person that result from, relate to or
arise out of:
(A) any breach of any representation or warranty or nonfulfillment
of any agreement or covenant on the part of the Buyer under this Agreement;
(B) any obligation, claim or liability relating to or arising solely
out of the Buyer's operation of the Company after the Closing; provided,
however, that the Buyer shall have no such indemnification obligations with
respect to any obligation, claim or liability relating or arising out of the
actions of Xxxxxx or Xxxxxxxxx after the Closing; and
(C) any action, suit, claim or proceeding incident to any of the
foregoing or to the enforcement of this Article VI.
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6.4 THIRD PARTY CLAIMS.
(A) If any third party notifies any Party (the "Indemnified Party")
with respect to any matter (a "Third Party Claim") which may give rise to a
claim for indemnification against any other Party (the "Indemnifying Party")
under this Article VI, then the Indemnified Party must promptly notify the
Indemnifying Party of such Third Party Claim in writing; provided, however, that
no delay on the part of the Indemnified Party in notifying the Indemnifying
Party will relieve the Indemnifying Party from any obligation under this Article
VI unless (and then solely to the extent) the Indemnifying Party is prejudiced
by such delay.
(B) Any Indemnifying Party will have the right to assume the defense
of the Third Party Claim with counsel reasonably acceptable to the Indemnified
Party at any time within fifteen days after the Indemnified Party has given
written notice of the Third Party Claim to the Indemnifying Party; provided,
however, that the Indemnifying Party must conduct the defense of the Third Party
Claim actively and diligently to preserve its rights to assume the defense of
the Third Party Claim; and provided further that the Indemnified Party may
retain separate co-counsel at his, her or its sole cost and expense and
participate in the defense of the Third Party Claim.
(C) So long as the Indemnifying Party has assumed and is conducting
the defense of the Third Party Claim in accordance with Section 6.4(b), the
Indemnifying Party will not consent to the entry of any judgment or enter into
any settlement with respect to the Third Party Claim without the prior written
consent of the Indemnified Party (not to be withheld or delayed unreasonably)
unless the judgment or proposed settlement involves only the payment of money
damages by the Indemnifying Party and does not impose an injunction or other
equitable relief upon the Indemnified Party.
(D) If the Indemnifying Party does not assume or conduct the defense
of the Third Party Claim in accordance with Section 6.4(b), however (i) the
Indemnified Party may defend against, and consent to the entry of any judgment
or enter into any settlement with respect to, the Third Party Claim in any
manner it reasonably may deem appropriate (and the Indemnified Party need not
consult with, or obtain any consent from, the Indemnifying Party in connection
with any such defense, consent or settlement), and (ii) the Indemnifying Party
will remain responsible for any Losses the Indemnified Party may suffer
resulting from, arising out of, relating to, in the nature of, or caused by the
Third Party Claim to the fullest extent provided in this Article VI.
(E) For purposes of this Section 6.4, all rights and
responsibilities of the Sellers as Indemnifying Party or Indemnified Party shall
be undertaken by the Sellers' Representative and no individual Seller, in his,
her or its capacity as a Seller, shall have any right to take any action
pursuant to this section.
6.5 LIMITATION OF INDEMNIFICATION.
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(A) Subject to Section 6.5(c) and (d) (i) the Sellers shall not be
liable for any Losses under Article VI unless the aggregate amount of Losses
with respect to all such misrepresentations or breaches of warranty exceeds
$250,000 and then only to the extent of such excess, and (ii) the maximum
aggregate liability of Xxxxxx and Xxxxx Xxxxxxxxx under Article VI (after the
Escrow Fund has been exhausted or distributed to the Sellers) shall be an
additional $7,000,000.
(B) Subject to Section 6.5(c) (i) the Buyer Indemnified Parties
shall have no recourse against any Passive Seller after the Escrow Amount has
been exhausted or distributed to the Sellers, and (ii) as among the Sellers,
claims made against the Escrow Amount shall be borne by the Sellers pro rata in
accordance with their ownership percentages on Schedule 1.2; provided, however,
that the Buyer Indemnified Parties shall have recourse against the entire Escrow
Amount with respect to such claims pursuant to the terms of this Agreement
without regard to such pro rations. Xxxxxx and Xxxxx Xxxxxxxxx, jointly and
severally, shall be liable for all of the Sellers' indemnification obligations
under this Article VI.
(C) Notwithstanding the provisions of Sections 6.5(a) and (b) or any
other provision of this Agreement, the Buyer Indemnified Parties' right to
reimbursement under this Article VI versus any particular Passive Seller shall
not be limited in any way with respect to Losses arising out of or related to
any claim for indemnity that is based upon (i) a breach of, or inaccuracy in,
any representation or warranty made by such Passive Seller contained in any of
the Passive Seller Sections, and (ii) a breach of or unfulfillment of any
agreement or covenant on the part of such Passive Seller under this Agreement.
Notwithstanding the provisions of Sections 6.5(a) and (b) or any other provision
of this Agreement, the rights of any Buyer Indemnified Party to recover damages
of any kind from a Passive Seller arising out of or related to a fraud committed
by such Passive Seller shall not be limited in any way.
(D) Notwithstanding the provisions of Sections 6.5(a) and 6.5(b) or
any other provision of this Agreement, the Buyer Indemnified Parties' rights to
reimbursement under this Article VI against Xxxxxx or Xxxxx Xxxxxxxxx shall not
be limited in any way with respect to Losses arising out of or related to any
claim for indemnity that is based upon (i) a breach of, or inaccuracy in, any
warranty, representation, covenant or agreement of the Sellers contained in the
Passive Seller Sections, or (ii) a breach or nonfulfillment of any agreement or
covenant on the part of any Seller under this Agreement. Notwithstanding the
provisions of Sections 6.5(a) and (b) or any other provision of this Agreement,
the rights of any Buyer Indemnified Party to recover damages of any kind from
Xxxxxx and Xxxxx Xxxxxxxxx arising out of or related to fraud committed by any
Seller shall not be limited in any way.
6.6 ESCROW AMOUNT. Subject to the limitations contained in this Article
VI, the Buyer shall be required to satisfy Losses from the Escrow Amount (until
such time as the Escrow Amount has been exhausted or distributed to the Sellers)
before proceeding against Xxxxxx or Xxxxx Xxxxxxxxx for any indemnification
claims under this Article VI. After the Escrow Amount has been exhausted or
distributed to the Sellers, the Buyer shall make indemnification claims under
this Article VI directly against Xxxxxx or Xxxxx Xxxxxxxxx pursuant to the terms
of this Agreement.
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ARTICLE VII
TERMINATION
7.1 TERMINATION BY MUTUAL CONSENT. This Agreement may be terminated at any
time prior to the Closing Date by the mutual written consent of the Buyer and
the Sellers.
7.2 TERMINATION BY EITHER THE BUYER OR THE SELLERS. This Agreement may be
terminated by either the Buyer or the Sellers if (i) the Closing has not
occurred on or before April 28, 2006 (provided that the right to terminate this
Agreement under this Section 7.2(i) will not be available to any Party whose
failure to fulfill any obligation under this Agreement has been the cause of or
resulted in the failure of the Closing to occur on or before such date), or (ii)
any court of competent jurisdiction in the United States or some other
governmental body or regulatory authority has issued an order, decree or ruling
or taken any other action permanently restraining, enjoining or otherwise
prohibiting the transactions contemplated by this Agreement, and such order,
decree, ruling or other action has become final and nonappealable.
7.3 TERMINATION BY THE BUYER. This Agreement may be terminated at any time
prior to the Closing Date by the Buyer if (a) the Buyer, in its sole discretion,
is not satisfied with (i) the results of its due diligence investigation of the
Company, or (ii) the form and content of the Schedules as delivered by the
Sellers on the Closing Date, (b) the Sellers have failed to comply in any
material respect with any of the covenants, conditions or agreements contained
in this Agreement to be complied with or performed by the Sellers at or prior to
the date of termination, or (c) any representation or warranty of the Sellers
contained in the Agreement was not true in any material respect (or, for
representations and warranties that are qualified as to materiality, the
representation or warranty was not true in all respects) when made or (except to
the extent they relate to a particular date) on and as of the Closing Date as if
made on and as of the Closing Date.
7.4 TERMINATION BY THE SELLERS. This Agreement may be terminated at any
time prior to the Closing Date by the Sellers if (a) the Buyer has failed to
comply in any material respect with any of the covenants, conditions or
agreements contained in this Agreement to be complied with or performed by the
Buyer at or prior to the date of termination, or (b) any representation or
warranty of the Buyer contained in this Agreement was not true in all material
respects (or, for representations and warranties that are qualified as to
materiality, the representation or warranty was not true in all respects) when
made or on and as of the Closing Date as if made on and as of the Closing Date
(except to the extent they relate to a particular date).
7.5 EFFECT OF TERMINATION. If any Party terminates this Agreement pursuant
to this Article VII, all rights and obligations of the Parties under this
Agreement will terminate without any liability of any Party to any other Party
(except for any liability of any Party then in breach); provided, however, that
(a) the Confidentiality Agreement will survive any such termination, (b) if the
Buyer terminates this Agreement solely because the Sellers fail to execute and
deliver on the Closing Date the Escrow Agreement or any of the Seller Releases
or solely because the Schedules are not satisfactory to the Buyer, then the
Sellers shall have no liability to the Buyer for such breach, and (c) if the
Sellers terminate this Agreement solely because the Buyer fails to
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execute and deliver on the Closing Date the Escrow Agreement or because the
Buyer terminates this Agreement because of a failure of the condition set forth
in Section 5.2(d), then the Buyer shall have no liability to the Sellers for
such breach.
ARTICLE VIII
MISCELLANEOUS AND GENERAL
8.1 MODIFICATION OR AMENDMENT. The Parties may modify or amend this
Agreement or waive any provision of the Agreement only by a written agreement
executed and delivered by the Buyer and the Sellers who held a majority of the
Shares of the Company immediately prior to the Closing Date.
8.2 COUNTERPARTS. For the convenience of the Parties, this Agreement may
be executed in any number of counterparts, each such counterpart will constitute
an original instrument, and all such counterparts will together constitute the
same agreement.
8.3 GOVERNING LAW; JURISDICTION AND VENUE; WAIVER OF JURY TRAIL.
(A) This Agreement will be governed by and interpreted and construed
in accordance with the internal laws of the state of Florida, without giving
effect to its conflicts of law principles.
(B) Any action brought in connection with this Agreement or the
transactions contemplated by this Agreement must be brought in a court of
competent jurisdiction sitting in Palm Beach County, Florida, or in the Federal
District Court for the Southern District of Florida. The Parties agree that
jurisdiction and venue in such courts is proper and waive any defense of lack of
personal jurisdiction or inappropriate or inconvenient venue.
(C) THE PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY, WHETHER NOW EXISTING OR ARISING AFTER THE DATE OF THIS
AGREEMENT, AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. THE PARTIES
AGREE THAT ANY OF THEM MAY FILE A COPY OF THIS SUBSECTION WITH ANY COURT AS
WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-FOR AGREEMENT AMONG THE
PARTIES IRREVOCABLY TO WAIVE TRIAL BY JURY AND THAT ANY PROCEEDING WHATSOEVER
BETWEEN THEM RELATING TO THE THIS AGREEMENT OR ANY OF THE TRANSACTIONS
CONTEMPLATED BY THE HEREBY SHALL INSTEAD BE TRIED IN A COURT BY A JUDGE SITTING
WITHOUT A JURY.
8.4 NOTICES. Any notice, request, instruction or other document to be
given under this Agreement by any Party to the other Parties must be in writing
and delivered personally or sent by registered or certified mail, postage
prepaid, or by facsimile transmission (with a confirming copy sent by overnight
courier), as follows:
(A) All notices to the Sellers shall be sent in care of the Sellers'
Representative to.
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Xxxxxxxxxxx X. Xxxxxx
0000 XX 00xx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
with a copy to Xxxxxxxxxxx X. Xxxxxx'x personal attorney
(which shall not constitute notice):
Xxxxxxx Xxxxxxx & Xxxxxxx
000 Xxxxx Xxxxxxx Xxxxx, Xxxxx 000 X
Xxxx Xxxx Xxxxx, XX 00000
Attn: Xxxxx X. Xxxxx, Esq.
(B) if to the Buyer, to:
Asset Acceptance Holdings LLC
00000 XxxXxxx
Xxxxxx, XX 00000
Attn: Xxxxxxxxx X. Xxxxxxx XX
with a copy to (which shall not constitute notice):
Xxxxxx Xxxxxxx PLLC
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: J. Xxxxxxx Xxxxxxx, Esq.
or to such other persons or addresses as may be designated in writing by the
Party to receive such notice.
8.5 ENTIRE AGREEMENT; ASSIGNMENT. This Agreement (a) constitutes the
entire agreement among the Parties with respect to the subject matter of this
Agreement and supersedes all other prior and contemporaneous agreements and
understandings, both written and unwritten, among the Parties or any of them
with respect to the subject matter of this Agreement, and (b) may not be
assigned by operation of law or otherwise without the written approval of the
other Parties.
8.6 JOINT DRAFTING. The Parties have participated jointly in the
negotiation and drafting of this Agreement. If an ambiguity or question of
intent or interpretation arises, this Agreement will be construed as if drafted
jointly by the Parties and no presumption or burden of proof will arise favoring
or disfavoring any Party by virtue of the authorship of any of the provisions of
this Agreement.
8.7 HEADINGS; CROSS-REFERENCES. The headings to the Articles and Sections
are for convenience of reference and will not affect the meaning or
interpretation of this Agreement. References to Articles, Sections, Exhibits and
Schedules mean the Articles, Sections, Exhibits and Schedules of this Agreement
unless otherwise indicated in this Agreement. The
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Background, Exhibits and Schedules are incorporated by reference into this
Agreement and are an integral part of this Agreement.
8.8 PARTIAL INVALIDITY. Insofar as possible, each provision of this
Agreement must be interpreted so as to render it valid and enforceable under
Applicable Law and severable from the remainder of this Agreement. A finding
that any provision is invalid or unenforceable in any jurisdiction will not
affect the validity or enforceability of any other provision or the validity or
enforceability of such provision under the laws of any other jurisdiction.
8.9 PARTIES IN INTEREST. This Agreement will be binding upon and inure
solely to the benefit of each Party and its respective successors and assigns.
Nothing in this Agreement, express or implied, is intended to or will confer
upon any other Person any rights, benefits or remedies of any nature whatsoever
under or by reason of this Agreement.
8.10 FURTHER ASSURANCES. The Parties hereby agree from time to time to
execute and deliver such further and other transfers, assignments and documents
and do all matters and things which may be convenient or necessary to more
effectively and completely carry out the intentions of this Agreement.
8.11 NO THIRD PARTY RIGHTS. Unless expressly stated in this Agreement to
the contrary, nothing in this Agreement is intended to confer any rights or
remedies under or by reason of this Agreement on any persons other than the
Parties and their respective personal or legal representatives or
administration, successors and permitted assigns. Nothing in this Agreement is
intended to relieve or discharge the obligation or liability of any third
persons to any Party, nor shall any provision give any third persons any right
of subrogation or action over or against any Party.
8.12 GUNSTER, YOAKLEY REPRESENTS XXXXXX. Each of the Other Shareholders
hereby agrees and acknowledges that the law firm of Gunster, Yoakley & Xxxxxxx,
P.A., a Florida professional association ("GYS"), hereby renders advice and
counsel solely to Xxxxxx and not in his capacity as Sellers' Representative.
Each of the Other Shareholders hereby agrees and acknowledges that GYS has not
represented any of the Other Shareholders in connection with this Agreement or
any other agreement, including the Escrow Agreement, contemplated by this
Agreement or the transactions contemplated by or in connection to this Agreement
or any other agreement, including the Escrow Agreement, and that EACH OF THE
OTHER SHAREHOLDERS IS HEREBY ADVISED TO RETAIN INDEPENDENT COUNSEL to advise it
regarding this Agreement and any other agreement, including the Escrow
Agreement, contemplated by this Agreement. Each of the Other Shareholders hereby
waives, releases and relinquishes any claim against GYS or any of its
shareholders from any conflict of interest arising or purportedly arising from
this Agreement or the transactions contemplated in this Agreement or any other
agreement, including the Escrow Agreement, contemplated by this Agreement.
8.13 SELLERS' REPRESENTATIVE.
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(A) Each Seller irrevocably appoints Xxxxxx as the Sellers'
Representative, to act as such Seller's representative, attorney-in-fact and
agent, with full power and authority to do all of the following:
(i) to execute and deliver and to receive, on behalf of such
Seller, all amendments, certificates, statements, notices, consents,
approvals, extensions, waivers and undertakings required or
permitted to be made, given or delivered under this Agreement or in
connection with the transactions contemplated by this Agreement;
(ii) to execute and deliver and to receive, on behalf of such
Seller, all amendments, certificates, statements, notices, consents,
approvals, extensions, waivers and undertakings required or
permitted to be made, given or delivered under the Escrow Agreement
or in connection with the transactions contemplated by the Escrow
Agreement;
(iii) to receive any amount delivered pursuant to this
Agreement or the Escrow Agreement to such Seller, other than
payments made by the Buyer pursuant to Section 1.3(a);
(iv) to respond to and make determinations with respect to the
assertion of any claims for indemnification by the Buyer Indemnified
Parties, and to assert claims on behalf of the Sellers Indemnified
Parties pursuant to the terms of this Agreement; and
(v) take all such other actions as may be necessary or
desirable to carry out his responsibilities as the Sellers'
Representative.
(B) The Buyer shall be entitled to rely, without further inquiry, on
the authority of the Sellers' Representative to take any action pursuant to this
Agreement for or on behalf of such Seller. If Xxxxxx (or his successor or
assign) shall resign, become incapacitated, die or otherwise cease to perform
his duties as the Sellers' Representative, his chosen successor (or if no
successor can be chosen, the successor chosen by his personal representative)
shall become the Sellers' Representative. The Sellers shall provide prompt
written notice to the Buyer of any change in the identity of the Sellers'
Representative.
(C) The Sellers' Representative, acting (or refraining from acting)
in good faith, shall not be responsible and shall not be liable for any mistake
of fact or error of judgment or for any acts or omissions of any kind unless
caused by the gross negligence or willful misconduct of the Sellers'
Representative. The Sellers' Representative shall be indemnified and saved
harmless by each Seller (to the extent of such Seller's respective pro rata
share of the proceeds paid pursuant to this Agreement) from all Taxes paid,
losses, costs and expenses, including attorneys' fees, which may be incurred by
him as a result of the performance of his duties as Sellers' Representative or
as a result of his involvement in any litigation in connection with this
Agreement or the Escrow Agreement, provided that such litigation shall not have
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resulted from any action taken or omitted by the Sellers' Representative and for
which the Sellers' Representative shall have been adjudged to have acted in bad
faith or to have been grossly negligent, and such indemnification shall survive
termination of this Agreement until extinguished by any applicable statute of
limitations.
(D) Subject to the Buyer's obligations under Article VI, neither
Buyer nor the Company shall have any liability for any of the fees and expenses
(including fees and expenses of attorneys, accountants, investment bankers,
brokers, and other professional advisors) incurred by the Sellers'
Representative in his capacity as Sellers' Representative.
SIGNATURES ON NEXT PAGE
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The Parties executed this Stock Purchase Agreement as of the date
first-above written.
THE BUYER
ASSET ACCEPTANCE HOLDINGS LLC
By: /s/ Xxxxxxxxx X. Xxxxxxx XX
---------------------------------
Name: Xxxxxxxxx X. Xxxxxxx XX
Title: Manager
THE SELLERS
DALEWOOD LP
By: /s/ Xxxxxx Xxxxxx
---------------------------------
Name: Xxxxxx Xxxxxx
Title:Director
/s/ Xxxxxxxxxxx X. Xxxxxx /s/ Xxxx Xxxxxx
-------------------------- -------------------------------
XXXXXXXXXXX X. XXXXXX XXXX XXXXXX
/s/ Xxxxxx Xxxxxxxxx /s/ Xxxxx Xxxxxxxxx
-------------------------- -------------------------------
XXXXXX XXXXXXXXX XXXXX XXXXXXXXX
/s/ Delight Xxxxxxxxx /s/ Xxxxx Xxxxxxxx
-------------------------- -------------------------------
DELIGHT XXXXXXXXX XXXXX XXXXXXXX
/s/ Xxxxxxx Xxxxxxx /s/ Xxxx X Xxxxxxxxx
-------------------------- -------------------------------
XXXXXXX XXXXXXX XXXX X XXXXXXXXX
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EXHIBIT A
INTERPRETATIONS AND DEFINITIONS
1. INTERPRETATIONS.
(a) Singular and Plural; Genders. Each definition in this Agreement
includes the singular and the plural, and references to any gender include the
other genders where appropriate.
(b) References to Laws and Governmental Authorities. Any reference
to any federal, state, local or foreign statute or law will be deemed also to
refer to all rules and regulations promulgated under such statute or law, unless
the context requires otherwise. Any reference to any statute or regulation means
such statute or regulation as amended at the time and includes any successor
statute or regulation. Any reference to any Governmental Authority includes any
predecessor or successor Governmental Authority.
(c) "Including" and "Or." The word "including" means including but
not limited to. The word "or" is not exclusive.
(d) Currency. All references to dollar amounts in this Agreement are
references to United States Dollars unless otherwise provided.
(e) Accounting Terms. "GAAP" means generally accepted accounting
principles consistently applied in the Company's financial statements. Except as
otherwise specifically provided in this Agreement, any accounting terms used in
this Agreement will refer to such terms as defined by GAAP.
2. DEFINITIONS
"Affiliate" means an entity related to the Seller that is subject to
common operating control and that is operated as part of the same system or
enterprise or, with respect to any Benefit Plan provision under Section 2.16,
any person or entity which is or was under common control with the Company
within the meaning of ERISA Section 4001 or Code Section 414(b), (c) or (m).
"Agreement" is defined in the introductory paragraph.
"Applicable Law" means any statute, law, ordinance, rule or regulation
applicable to the any Party, the Company or a Benefit Plan.
Benefit Plan" is defined in Section 2.16.
"Business Day" means any day other than a Saturday, Sunday or other day on
which commercial banks in New York, New York or London, England are required or
authorized by law to close.
"Buyer" is defined in the introductory paragraph.
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"Charged Off Accounts" means consumer accounts receivable that have been
charged off by the original creditor.
"Closing" is defined in Section 1.5.
"Closing Date" is defined in Section 1.5.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" is defined in the Recitals.
"Company Information" is defined in Section 2.31.
"Consent" is defined in Section 2.3(e).
"Consumer Credit Account" means any retail or other installment contract
involving periodic payments to a creditor which are purchased by or originate
with Premium Asset Recovery Corp.
"Contract" means any loan or credit agreement, note, bond, mortgage,
indenture, lease, sublease, purchase order or other agreement, commitment or
license.
"Constituent Documents" means the organizing and governing documents of
any organization or trust, including the Articles of Incorporation and Bylaws of
a corporation, the Articles of Organization and Operating Agreement of a limited
liability company, the Certificate of Limited Partnership and Limited
Partnership Agreement of a limited partnership, or any similar documents serving
similar functions for any type of organization or trust.
"Xxxxxx" is defined in the introductory paragraph.
"Employment Agreements" is defined in Section 1.10(b).
"Environmental Laws" is defined in Section 2.13.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"Family Member" is defined in Section 2.19(a).
"GAAP" is defined in Section 1(e) of this Exhibit.
"Xxxxx Xxxxxxxxx" is defined in the introductory paragraph.
"Governmental Authority" means any Federal, state, local or foreign
government or any court of competent jurisdiction, administrative agency or
commission or other governmental authority or instrumentality, domestic or
foreign.
"Hazardous Substances" means, collectively, contaminants, pollutants,
toxic or hazardous chemicals, substances, materials, wastes and constituents,
petroleum products, polychlorinated
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biphenyls, asbestos, ozone depleting substances, and urea formaldehyde regulated
under any Environmental Law.
"HIPAA" is defined in Section 2.24(c).
"Xxxxxxxxx" is defined in the introductory paragraph.
"IRS" is defined in Section 2.16(d).
"Indemnified Party" is defined in Section 6.4.
"Indemnifying Party" is defined in Section 6.4.
"Insider" is defined in Section 2.19.
"Insurance Policies" is defined in Section 2.14(a).
"Intellectual Property" means all United States and foreign patents,
patent applications, inventions, trade secrets, know-how, registered or
unregistered trademarks, trade names, service marks (including associated
goodwill), copyrights, and computer software.
"Leased Real Property" is defined in Section 2.10.
"License" or "Licenses" is defined in Section 2.7(b).
"Liens" means any pledge, lien (including, without limitation, any Tax
lien), charge, claim, community property interest, condition, equitable
interest, encumbrance, security interest, mortgage, option, restriction on
transfer (including without limitation any buy-sell agreement or right of first
refusal or offer), forfeiture, penalty, equity or other right of another Person
of every nature and description whatsoever.
"Losses" is defined in Section 6.2.
"Material Adverse Effect" means a material adverse effect on the business,
financial condition, results of operation or prospects of the Company.
"Non-Competition Agreements" is defined in Section 1.10(a).
"Other Shareholders" shall mean Xxxxx Xxxxxxxxx, Holzhauer, Nussbaum,
Russell, Fisher, Xxxxxxxxx, Xxxxxx Gladstone and Dalewood.
"PBGC" is defined Section 2.16(d).
"Party" or "Parties" is defined in the introductory paragraph.
"Passive Sellers" is defined in the introductory paragraph.
"Passive Seller Sections" is defined in the introductory paragraph of
Article II.
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"Knowledge of the Passive Seller" or like phrases or terms means the
actual knowledge of the applicable Passive Seller, without any independent
investigation.
"Permitted Liens" means (i) those Liens described in Schedule 2.9 or
securing Funded Indebtedness reflected as a liability on the Closing Balance
Sheet, (ii) mechanics', carriers', workmen's, repairmen's or other like Liens
arising or incurred in the ordinary course of business, Liens arising under
original purchase price conditional sales contracts and equipment leases with
third parties entered into in the ordinary course of business and liens for
Taxes that are not due and payable or that may thereafter be paid without
penalty or that are being contested in good faith by appropriate proceedings,
(iii) other imperfections of title or encumbrances, if any, that do not,
individually or in the aggregate, materially impair the continued use and
operation of the Companies' assets in the conduct of their respective businesses
as presently conducted, (iv) easements, covenants, rights-of-way and other
similar restrictions of record, and (v) any conditions that may be shown by a
current, accurate survey or physical inspection of any Property made prior to
Closing.
"Person" means any individual, legal entity, business enterprise, or
government, governmental body or unit, including any corporation, partnership,
limited partnership, or limited liability company.
"Proceeding" means the form and manner of conducting judicial business
before a court or hearing officer.
"Profit Sharing Releases" is defined in Section 1.8.
"Property" means land, including land improvements, structures and
appurtenances thereto.
"Purchase Price" is defined in Section 1.2.
"Real Property Lease" is defined in Section 2.10.
"Securities Act" means the Securities Act of 1933.
"Sellers" is defined in the introductory paragraph.
"Sellers' Knowledge" or like phrases or terms means the actual knowledge
after reasonable inquiry of the applicable Sellers, provided that Sellers'
Knowledge shall not include the knowledge of any Passive Seller.
"Shares" is defined in the Background.
"Subsidiary" is defined in Section 2.2.
"Tax" (and, with correlative meaning, "Taxes" and "Taxable") means:
(i) any federal, state, local or foreign income, gross
receipts, windfall profits, severance, property, production, sales,
use, license, excise, franchise,
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single business, value added, employment, payroll, withholding,
alternative or add-on minimum, ad valorem, Transfer Taxes, excise,
stamp, or environmental Tax, or any other Tax, custom, duty,
governmental fee or other like assessment or charge of any kind
whatsoever, together with any interest or penalty, addition to Tax
or additional amount imposed by any governmental authority; and
(ii) liability of the Company for the payment of amounts with
respect to payments of a type described in clause (i) as a result of
being a member of an affiliated, consolidated, combined or unitary
group, or as result of any obligation of the Company under any Tax
Sharing Arrangement or Tax indemnity arrangement.
"Tax Return" means any return, report or similar statement required to be
filed with respect to any Tax (including any attached schedules), including,
without limitation, any information return, claim for refund, amended return and
declaration of estimated Tax.
"Tax Sharing Arrangement" means any written or unwritten agreement or
arrangement for the allocation or payment of Tax liabilities or payment for Tax
benefits with respect to a consolidated, combined or unitary Tax Return which
Tax Return includes the Company.
"Third Party Claim" is defined in Section 6.4.
"Transfer Taxes" is defined in Section 4.1(b).
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EXHIBIT B
FORM OF ESCROW AGREEMENT
See attached.
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EXHIBIT C
FORM OF STOCK POWER
April 1, 2006
For value received the undersigned assignor (the "Assignor") hereby fully
and irrevocably grants, assigns, and transfers to the undersigned assignee and
his, her or its heirs, personal representatives, successors, and assigns
(collectively, "the "Assignee"), the following property:
All of the shares of the Common Stock of Premium Asset Recovery
Corp., a Florida corporation (the "Company") represented by
Certificate No. [____] and standing in the Assignor's name in the
books and records of the Company (the "Shares").
The Assignor hereby irrevocably appoints the Assignee to be the Assignor's
true and lawful attorney-in-fact, with full power of substitution, and empowers
the Assignee, for and in the name of the Assignor, to sell, transfer,
hypothecate, liquidate or otherwise dispose of all or any portion of the Units,
from time to time, and, for that purpose, to make, sign, execute, and deliver
any documents or perform any other act necessary for such sale, transfer,
hypothecation, liquidation or other disposition. The Assignor acknowledges that
this appointment is coupled with an interest and shall not be revocable for any
reason.
The Assignor and the Assignee have executed this Assignment Separate From
Certificate as of the date first-above written.
ASSIGNOR
___________________________________
Signature
___________________________________
Printed Name
ASSIGNEE
ASSET ACCEPTANCE HOLDINGS LLC
By: ________________________________
Name: ________________________________
Title: ________________________________
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EXHIBIT D
NON-COMPETITION AGREEMENT
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EXHIBIT E
EMPLOYMENT AGREEMENT
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EXHIBIT F
RESIGNATION STATEMENT
To: The Board of Directors and Shareholders of [____________] (the "Company").
Effective as of the date of this Resignation Statement, the undersigned
hereby resigns from any and all positions that the undersigned may now hold (a)
as a director, officer, or employee of the Company and any subsidiary of the
Company, and (b) as a trustee of any plan sponsored by the Company or any
subsidiary of the Company.
Dated: ________________, 2006
________________________
Signature
________________________
Printed Name
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