Exhibit 2.12
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("Agreement") is entered into as of the 1st
day of May, 2002, by and between Farmers & Merchants Investment Inc., a Nebraska
corporation (the "Buyer") and Nelnet Loan Services, Inc., a Nevada corporation
(the "Seller").
RECITALS
A. Seller owns title and beneficial ownership interest in 91.43% of all
of the issued and outstanding capital stock (the "Stock") of Infovisa, Inc., a
Colorado corporation (the "Company");
B. The parties desire that Seller sells to Buyer and Buyer purchase from
Seller upon the terms and conditions hereinafter set forth all of the Stock
representing a 91.43% equity interest in the Company owned by Seller immediately
after all transactions contemplated or referenced in this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and in
consideration of and in reliance upon the representations, warranties and
obligations in this Agreement, the parties agree as follows:
ARTICLE I
PURCHASE OF STOCK
1.1 Definition Reference. Certain capitalized terms are defined in Section
8.1.
1.2 Purchase of Stock. Subject to the terms of this Agreement, Seller
agrees to sell, transfer and assign (or cause to be sold, transferred and
assigned) to Buyer free of all Liens, and Buyer agrees to purchase, the Stock
representing 91.43% of the equity ownership and authorized and issued shares of
stock of the Company (the "Purchased Stock").
ARTICLE II
CONSIDERATION
2.1 Purchase Price. In consideration of the Purchased Stock, Buyer will
pay Seller the aggregate purchase price in an amount equal to Seller's pro rata
share of all stock of the Company as of May 1, 2002, inclusive of the value
after the Company's acquisition of preferred stock in Packers Service Group,
Inc. (the "Purchase Price"), payable as set forth below.
2.1.1 Closing Payment. At the Closing, Buyer will pay Seller in
immediately available funds the amount of the Purchase Price.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer, with respect to the Company and
each of the Subsidiaries (which subsidiaries, for the purpose of this Article
III shall be included in the term "Company" except where otherwise noted), as
of the date of this Agreement and as of Closing, as follows:
3.1 Ownership of Stock. Seller is, as of the date of this Agreement, the
record title and beneficial owner of shares of the Stock representing 91.43% of
the outstanding Stock of the Company, and will be the record title and
beneficial owner of the Stock as of Closing, free and clear from all Liens of
any nature, and upon the delivery to the Buyer of the endorsed Stock
certificates the Buyer will be the title and beneficial owner of the Purchased
Stock, which shall constitute 91.43% of the issued and outstanding stock of the
Company, which shall be free and clear from all Liens of any nature.
3.2 Authorization: Organization and Standing; Non-Contravention. Seller
has the necessary power and authority to execute and deliver this Agreement and
to perform the obligations to be performed by Seller hereunder, and this
Agreement is valid and binding upon Seller and enforceable in accordance with
its terms. The execution and delivery of this Agreement by Seller do not, and
the consummation of the transactions contemplated hereby and the performance by
Seller of the terms of this Agreement will not (a) violate any Law, (b) conflict
with, result in a breach of, constitute a default under, result in the
acceleration of, create in any Person the right to accelerate, modify or cancel,
or require any notice under any contract to which the Company is a party or by
which the Company is bound or which any of its assets are subject, (c) violate
provisions of the Company's articles of incorporation or bylaws, or (d) result
in acceleration of any obligation under, or constitute an event of default under
any order, judgment or decree to which the Company or Seller are bound. No
approval, authorization, license, permit or other action by, or filing with, any
Governmental Authority or non-governmental third party, or of the directors of
the Company is required that has not been obtained in connection with the
execution and delivery of this Agreement by Seller or the consummation by Seller
of the transactions contemplated hereby.
3.3 Intellectual Property. Seller has furnished to Buyer a complete list
of all patents, pending patent applications and registration certificates
(including a brief description of the subject matter thereof, the jurisdiction,
the date of issue or filing and the patent or application number), all trade
names, trade marks and service marks and applications therefor, all copyright
registrations, all copyrights not registered, all internet domain name
registrations of the Company, and all source codes used in the business and
operations of the Company and the Subsidiaries as presently conducted
(collectively, the "Intellectual Property." The Company is the sole and
exclusive owner of the entire right, title and interest in and to the
Intellectual Property, free of any and all Liens, and there are no pending, or
to the Seller's knowledge, threatened proceedings or litigation or other adverse
claims affecting or with respect to the Intellectual Property. No Person is
infringing, to Seller's knowledge, the Intellectual Property, and none of the
Intellectual Property is infringing upon the intellectual property rights of any
other Persons.
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3.4 Organization and Standing of the Company.
(a) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Colorado, its state of
incorporation, and is legally qualified to transact business and is in good
standing in every jurisdiction in which the nature of the business
conducted by it or the character or location of properties owned or leased
by it makes such qualification necessary, except in such jurisdiction where
failure to be so duly qualified would not have a material adverse effect
upon the Company. The Company is qualified to transact business only in the
State of Colorado.
(b) Seller has delivered to Buyer a true and complete copy of the
Company's articles of incorporation and bylaws, and any amendments thereto,
presently in effect. The minute books of the Company are in good order,
true, complete, correct and up-to-date, and with all necessary signatures,
setting forth all meetings and actions taken by the shareholders and
directors of the Company. The stock transfer books and stock ledgers of the
Company are in good order, true, complete, correct and up-to-date, with all
necessary signatures, and set forth all stock certificates issued,
transferred and surrendered. The Company is not in default under or in
violation of any provision of its articles of incorporation or bylaws.
(c) The Company's authorized capital stock consists of common stock,
which is issued and outstanding as reflected on the books and records of
the Company. The Purchased Stock is duly authorized, validly issued, fully
paid, non-assessable and free of preemptive rights, and are subject to no
restrictions with respect to transferability.
(d) The Company has all licenses, permits and authorizations
necessary to carry on the businesses in which it is engaged and to own and
use the properties owned and used by it. None of the licenses, permits and
authorizations of the Company will be terminated or are terminable due to
consummation of the transaction provided for herein.
3.5 Good Title to Assets. The Company is the sole and unconditional owner
of, and has good and marketable title, free and clear of any Liens, to the
properties and assets used by it, located on its premises, or shown in the most
recent financial statements. The properties and assets owned by the Company as
of the Closing Date shall permit the Company to continue and carry on business
and operations in the ordinary course of business.
3.6 Material Contracts. Seller has provided to Buyer a true and complete
schedule of all of the agreements which are binding upon the Company, and which
individually involve purchases, sales, transfers or services aggregating in
excess of $10,000, with respect to any benefit plans, for the purchase of
materials, supplies, services or equipment, for the borrowing of money, for the
acquisition of a business or asset, with respect to transfers of licenses of
software, or other existing agreements pertaining to or affecting the Company.
True, correct and complete copies of all such
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documents have been delivered to Buyer. To the knowledge of Seller, no Person
has claimed that any of such agreements are invalid or unenforceable or in
default. The Company shall continue to receive all benefits of all of the
agreements into which it has entered, and none of such agreements contain any
provision which will or could result in termination or modification of any term
upon change in control of the Company. Each of such agreements is legal, valid,
binding, enforceable and in full force and effect and/or continue to be so
following consummation of the transaction contemplated hereby, and no party is
in breach or default and no event has occurred which with notice or lapse of
time, would constitute a breach or default, or permit termination, modification
or acceleration under such agreement, other than as previously disclosed by
Seller.
3.7 Subsidiaries. The Company has no Subsidiary, except for Retirement
Direct, LLC.
3.8 Litigation. There are no actions, claims, proceedings, litigation,
state or federal equal employment opportunity commission proceedings or, to
Seller's knowledge, investigations pending or threatened against the Company
with respect to its business, that could reasonably be expected to have,
directly or indirectly, individually or in aggregate, a material adverse effect
upon the Company. All pending litigation has been disclosed to Buyer.
3.9 Compliance with Laws. The Company has complied in all material respects
and is complying in all material respects with all Laws, and the Company has not
received notice of violation of any applicable Law.
3.10 Compensation of Employees. Seller has furnished to Buyer a true,
correct and complete list of the names and job titles of all persons who are
employees of the Company, together with annual base salaries, bonuses and
commissions of such employees. There are no arrearages in the payment of wages
or salaries to such employees. Other than the employment agreements as
previously disclosed, the Company has no employment agreements, compensation or
deferred compensation arrangements or consulting agreements with any employee or
other person or entity which is in writing or which is not terminable at will.
3.11 Taxes. All material tax returns required to be filed prior to the
Closing Date have been filed in a timely manner and are true, complete and
correct in all material respects. All material taxes relating to the Company due
on or before the Closing Date have been timely and fully paid. The charges,
accruals and reserves for taxes due, or accrued but not yet due, relating to the
Company for any tax period prior to the Closing Date as reflected on the books
of the Company are adequate to cover such taxes. No penalties or other charges
of any nature are or will become due with respect to the late filing of any tax
returns required to be filed on or before the Closing Date. All material taxes
that the Company is required by Law to withhold or collect have, in all
respects, been duly withheld or collected and have been timely paid over to the
extent due and payable. The Company has no Liabilities related to Taxes arising
from any deferred income. There has been no IRS examination or audit of the
Company within the past ten years. There are no sales Taxes imposed by the State
of Idaho and which arise from the transactions contemplated by this Agreement.
There are no tax sharing agreements to which the Company is now or ever has been
a party. The Company is not a party to any agreement that would result,
separately or in the aggregate, in the payment of any "excess parachute
payments" within the meaning of Section 280G of the Internal Revenue Code of
1986,
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as amended (the "Code"). The Company is not a party to any joint venture,
partnership or other arrangement or contract that could be treated as a
partnership for federal income tax purposes. The gain generated by the election
under Section 338(h)(10) of the Code will be reported on the final tax return
of the Company and the Federal and state income tax resulting therefrom will be
paid by Seller.
3.12 Employee Benefit Plans. Except as identified and described in the 401k
plan furnished by Seller, the Company does not have "employee benefit plans'' as
that term is defined in the Employee Retirement Income Security Act of 1974, as
amended, that currently are maintained by, sponsored in whole or in part by or
contributed to, by or on behalf of the Company as applicable, for the benefit of
the respective employees, retirees, dependants, spouses, directors, independent
contractors or other beneficiaries. Schedule 3.12 consists of a true, correct
and complete copy of the employee handbook in effect with respect to the
Company's employees as of the date hereof, which handbook contains true and
complete copies or summaries of all material pension, retirement,
profit-sharing, deferred compensation, stock option, employee stock ownership,
severance pay, vacation, bonus or other material incentive plans, all other
material written employee programs, arrangements or agreements, whether arrived
at through collective bargaining or otherwise, all material medical, vision,
dental or other health plans, all life insurance plans and all other material
employee benefit plans or fringe benefit plans, including, without limitation,
all "employee benefit plans" as that term is defined in Section 3(3) of the
Employee Retirement Income Security act of 1974, as amended ("ERISA"), currently
adopted, maintained by, sponsored in whole or in part by, or contributed to by,
or on behalf of, the Company for the benefit of its employees, retirees,
dependents, spouses, directors, independent contractors or other beneficiaries
who are eligible to participate therein (the "Benefit Plans"). Neither Seller,
the Company nor any ERISA affiliate of the Seller (which for purposes of this
Agreement shall mean any entity required to be aggregated with Seller or the
Company under Code Sections 414(b), (c), (m) or (o) which maintains or has
maintained any multi-employer plan within the meaning of Section 3(37) of ERISA.
All Benefit Plans are in compliance in all material respects with the applicable
terms of ERISA, the Code and any other applicable laws, rules and regulations.
No Benefit Plan which is a Defined Benefit Pension Plan (within the meaning of
ERISA) has any "unfunded current liability," as that term is defined in Section
302(d)(8)(A) of ERISA, and the present fair market value of the assets of any
such plan exceeds the plan's "benefit liabilities," as that term is defined in
Section 4001(a)(16) of ERISA, when determined under actuarial factors that would
apply if the plan terminated in accordance with all applicable legal
requirements. No Benefit Plan has an "accumulated funding deficiency" as defined
in Code Section 412. No event has occurred with respect to a Benefit Plan that
could subject the Company to liability under Title IV of ERISA. No Benefit Plan
has been funded or administered in a manner that would result in Liability for
any Tax or penalty for overfunding or prohibited transactions under applicable
law.
3.13 Absence of Certain Events. Since the date of the most recent
financial statements of the Company, there has not been:
(a) an amendment to the Company's articles of incorporation or
bylaws, or merger with or into or consolidation with any Person, change or
agreement to
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change any agreements to which the Company is a party or the character or the
business of the Company;
(b) any dividends declared or paid or other distributions of any kind to
the Company's shareholders declared or made, or any direct or indirect
redemption, purchase, retirement or other acquisition of any of the Stock,
without the prior written consent of Buyer in its discretion;
(c) any loan or advance made to any of the Company's officers, directors,
employees, consultants, agents, shareholders or any other loan or advance made
otherwise than in the ordinary course of business;
(d) any change in the financial condition, properties, business or
operations of the Company or any event or circumstance which is, or may result
in, singly or in the aggregate, a material adverse effect on the Company;
(e) any loss affecting any asset of the Company, unless such loss could not
reasonably be expected to result in a material adverse effect upon the Company;
(f) any strike or other labor trouble or dispute has resulted in or may
result in a material adverse effect upon the Company;
(g) any loss of any permit, license, qualification or certificate of
authority held by the Company;
(h) any indebtedness, Liability or obligation incurred by the Company or
any transaction entered into by the Company, other than in the ordinary course
of business, or any guarantee by the Company of any indebtedness, Liability or
obligation of any other Person;
(i) any obligation, Liability or Lien, paid, discharged or satisfied by or
on behalf of the Company other than the current Liabilities reflected in the
most recent financial statement;
(j) any sale, transfer or other disposition of any asset of the Company
having a book value in excess of $10,000 in a single instance and $25,000 in the
aggregate, or any cancellation of any debt or claim of the Company having a book
value in excess of $10,000 in a single instance and $25,000 in the aggregate,
except in the ordinary course of business;
(k) any material change in, or any contract to materially change, the
compensation or other direct or indirect remuneration payable to any officer,
employee or agent of the Company or any bonus, incentive or deferred
compensation, profit sharing, retirement, pension, group insurance, death
benefit or other fringe benefit plan, or any employee or consulting agreement,
granted, entered into or
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materially amended or altered, other than in the ordinary course of business or
as required pursuant to an existing employment agreement;
(l) any capital expenditure, addition or improvement made or
committed to be made by or on behalf of the Company in excess of $10,000 with
respect to any single expenditure, addition or improvement of the Company;
(m) any termination or failure to renew, or receipt of a threat (that
was not subsequently withdrawn) by a third party to terminate or fail to renew
any material agreement to which the Company is a party;
(n) any material failure to maintain the books and records of the
Company in the usual, regular and ordinary manner, consistent with past
practice, or any material change in the accounting principle or practice of the
Company; or
(o) any write-off as uncollectible of any receivables, or any portion
thereof; or
(p) any adverse change in the business, financial condition,
operations, results of operations or future prospects of the Company.
3.14 Financial Statements. Seller has furnished to Buyer an accurate and
complete balance sheet of the Company as of, and profit and loss statements
relating to the Company (collectively, the "Financial Statements") for:
December 31, 1998; December 31, 1999; December 31, 2000; and December 31, 2001.
Such information fairly presents the financial condition and results of
operation of the Company as of and for such periods, have been prepared on a
consistent basis throughout the periods covered thereby, are correct and
complete, and are consistent with the books and records of the Company. All of
the Financial Statements prior to December of 2001 are audited statements
prepared in accordance with GAAP on a consistent basis throughout the periods
covered thereby. The interim Financial Statement for the period ended December
31, 2001, shall be supplemented by independent auditors as of the Closing Date.
There have been no dividends or distributions of any nature by the Company
since January 1, 2001.
3.15 Absence of Undisclosed Liabilities. The Company does not have any
direct or indirect, primary or secondary, Liability of any type, whether
accrued, absolute or contingent, liquidated or unliquidated, matured or
unmatured, or otherwise that will have, or is reasonably likely to have,
individually or in the aggregate, a material adverse effect upon the Company,
except for the Liabilities which are accrued or reserved against and reflected
upon the Financial Statements of the Company.
3.16 Brokers and Finders. Seller has not employed any broker or finder or
incurred any Liability for any financial advisory fees, or brokerage fees,
commission or finder's fees in connection with this Agreement.
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3.17 Conflicts of Interest. No officer or director of the Company (or any
member of any family of such officer or director) has any direct or indirect
interest in any creditor, competitor, supplier, customer or agent of the
Company.
3.18 Customers. No licensee which engages the services of or acquires
Intellectual Property from the Company has terminated or, to the knowledge of
Seller or the Company, threatened to terminate or decrease its relationship
with the Company. As of the Closing Date, the Company is not required to
provide any bonding or other financial security arrangements in connection with
any transactions with any customers or suppliers.
3.19 Real Estate. Seller has previously furnished to Buyer a true and
complete schedule of all leases of real estate to which the Company is a party
and all parcels of real estate in which the Company holds a title or leasehold
interest. All such leases are in full force and effect, the Company shall have
the quiet and peaceful possession of the properties covered thereby, and none
of the lessors thereunder are in material default under any of the terms
thereof.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
4.1 Organization and Power. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of Nebraska.
Buyer has full corporate power to execute, deliver and perform this Agreement
and all other agreements and documents to be executed and delivered by it in
connection herewith.
4.2 Authority; Noncontravention. Buyer has the necessary corporate powers
and authority to execute and deliver this Agreement and to perform the
obligations to be performed by Buyer hereunder, and this Agreement is valid and
binding upon Buyer and enforceable in accordance with its terms. The execution
and delivery of this Agreement will not (a) violate any Law, (b) conflict with,
result in a breach of, constitute a default under, result in acceleration of,
create in any Person the right to accelerate, modify or cancel, or require any
notice under any contract to which Buyer is a party or by which Buyer is bound
or which any of its assets are subject, (c) violate the articles of
incorporation or bylaws of Buyer, or (d) result in acceleration of any
obligation under, or constitute an event of default under, any order, judgment
or decree to which Buyer is bound. Except as specifically set forth in this
Agreement, no approval, authorization, license, permit or other action by, or
filing with, any Governmental Authority or non-governmental third party, or of
the shareholders or directors of Buyer is required that has not been obtained
in connection with the execution and delivery of this Agreement by Buyer or the
consummation by Buyer of the transactions contemplated hereby.
4.3 Brokers and Finders. Buyer has not employed any broker or finder or
incurred any Liability for any brokerage fees, commissions or finder's fees in
connection with this Agreement.
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ARTICLE V
CLOSING
5.1 Closing. If the conditions to the parties' obligations enumerated
below in Sections 5.2 and 5.3 are satisfied, consummation of the transactions
contemplated hereby (the "Closing") shall take place on the date first set forth
above (the "Closing Date"), by delivery or facsimile copies of documents, or on
such other date or at such other location as the parties may agree. The
transfers and deliveries herein contemplated will be mutually interdependent and
regarded as occurring simultaneously; and no such transfer or delivery will
become effective until all of the transfers and deliveries provided for in
Sections 5.2 and 5.3 have been consummated. Notwithstanding the date of Closing,
the transactions consummated herein shall be effective as of May 1, 2002.
5.2 Conditions to Buyer's Obligations. The obligation of Buyer to perform
this Agreement is subject to satisfaction (or written waiver by Buyer in Buyer's
sole discretion) of the following conditions at or before the Closing, it being
an explicit condition that all agreements and documents to be delivered to Buyer
which are not attached as Schedules (and therefore deemed satisfactory to Buyer)
must be in form and substance reasonably satisfactory to Buyer;
5.2.1 Agreements Performed. Seller shall have performed all of the
obligations under this Agreement to be performed by him at or before the
Closing, and Buyer shall have received a certificate to such effect, executed by
the Seller and dated as of the Closing Date;
5.2.2 Representations Accurate. The representations and warranties
of Seller contained herein will continue to be accurate in all material respects
just as if made as of the Closing, without giving effect to any supplemental
disclosure, update or modification and Buyer shall have received a certificate
to such effect, executed by the Seller and dated as of the Closing Date, if
requested by Buyer;
5.2.3 No Change. There will have been no material adverse changes
in the financial condition, results of operations, assets, business or prospects
of the Company;
5.2.4 Legal Action. There will be no pending or threatened legal
action or inquiry which challenges the validity or legality of or seeks or could
reasonably be expected to prevent, delay or impose conditions on the
consummation of the transactions contemplated by this Agreement;
5.2.5 Stock Certificates. Buyer will have received stock
certificates either duly endorsed in blank or with stock powers so endorsed and
attached thereto ready for immediate transfer into Buyer's name, representing
the transfer of the Purchased Stock to Buyer, free of all Liens, as well as all
other documents to be delivered pursuant to Section 5.5.1 hereof;
5.2.6 Access to Records. Buyer shall have been afforded an
opportunity to review all books and records of the Company and its Subsidiaries;
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5.2.7 Due Diligence. Buyer will have completed its due diligence
review with respect to the Company and the results thereof shall have been to
the satisfaction of Buyer in its sole discretion;
5.2.8 Others. Buyer will have received each other document
required to be delivered to Buyer hereunder.
5.3 Conditions to Seller's Obligations. The obligation of Seller to
perform this Agreement is subject to satisfaction (or written waiver of Seller
in Seller's sole discretion) of the following conditions at or before the
Closing, it being an explicit condition that all agreements and documents to be
delivered to Seller which are not attached as Schedules (and therefore deemed
satisfactory to Seller) must be in form and substance reasonably satisfactory
to Seller:
5.3.1 Agreements Performed. Buyer will have performed all of the
obligations under this Agreement to be performed by it at or before the Closing;
5.3.2 Representations Accurate. The representations and
warranties of Buyer contained herein will continue to be accurate in all
material respects just as if made as of the Closing without giving effect to
any supplemental disclosure, update or modification;
5.3.3 Legal Action. There will be no pending or threatened legal
action or inquiry which challenges the validity or legality of or seeks or
could reasonably be expected to prevent, delay or impose conditions on the
consummation of the transactions contemplated by this Agreement;
5.3.4 Closing Payment. Seller will have received immediately
available funds by wire transfer in the amount of the Purchase Price and each
of the other documents required to be delivered pursuant to Section 5.5.2
hereof;
5.3.5 Others. Seller and the Company will have received each
other document required to be delivered to them hereunder.
5.4 Closing Covenants.
5.4.1 Supplemental Disclosure. Until the Closing, the parties
hereto will immediately notify the other party of any event or circumstance
that:
(a) makes it necessary to correct any representation and
warranty in Article III or IV that has been rendered inaccurate
thereby; or
(b) arises hereafter and which, had it existed on or prior
to the date hereof, would have resulted in an inaccuracy in a
representation and warranty in Article III or IV.
5.4.2 Termination. This Agreement may be terminated:
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(a) by written agreement of Buyer and Seller, or if Buyer
determines to terminate after due diligence investigation by Buyer is
not satisfactory in Buyer's discretion; or
(b) by the Buyer, if there has been a material breach by
Seller or the Company or its Subsidiaries of any of the Seller's
representations, warranties, covenants or agreements set forth in this
Agreement which breach cannot be cured promptly by the Seller of the
Company or its Subsidiaries.
If this Agreement is terminated pursuant to paragraph (a) of this Section, all
provisions of this Agreement will become void without any liability on the part
of any party. If this Agreement is terminated pursuant to paragraph (b) of this
Section, all rights and remedies of each party hereunder and all other
provisions hereof related thereto will survive termination to the extent
required so that any party responsible for any breach or nonperformance of its
obligations hereunder prior to termination will remain liable for the damages
resulting therefrom. All rights and remedies of each party hereunder and all
other provisions hereof related thereto will survive termination to the extent
required so that any party responsible for any breach or nonperformance of its
obligations hereunder prior to termination will remain liable for the damages
resulting therefrom.
5.5 Closing Deliveries. At the Closing, the parties hereto will make the
transfers and deliveries hereinafter set forth. The transfers and deliveries
herein contemplated will be mutually interdependent and regarded as occurring
simultaneously; and no such transfer or deliver will become effective until all
of the transfers and deliveries provided for hereunder have been consummated.
The transfers and deliveries herein contemplated will be deemed to have
occurred and the Closing will be effective as of the close of business on the
Closing Date.
5.5.1 Deliveries from Seller to Buyer. At the Closing, Seller shall
deliver or cause to be delivered the following to Buyer:
(a) certificates representing all of the Purchased Stock duly
endorsed by Seller, fully registered in the name of Buyer and duly
recorded on the stockholder and transfer records of the Company, free
of all Liens and assessments;
(b) the books and records of the Company including, without
limitation, the stock books, stock ledgers, minute books, corporate
seal and operating contracts;
(c) each other document reasonably requested to be delivered
to Buyer hereunder.
5.5.2 Deliveries from Buyer to Seller. At the Closing, Buyer shall
deliver or cause to be delivered the following to Seller:
(a) evidence of wire transfer of the Purchase Price;
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(b) each other document reasonably requested to be delivered to
Seller hereunder.
ARTICLE VI
COVENANTS
6.1 Miscellaneous Covenants.
6.1.1 Publicity. All public announcements relating to this Agreement
or the transactions contemplated hereby will be made only as may be authorized
mutually by Buyer and Seller or as required by Law.
6.1.2 Expenses. Except to the extent otherwise specifically provided
herein, each party will pay all of its own respective expenses incident to the
transactions contemplated by this Agreement which are incurred by such party or
its representatives.
6.1.3 No Assignment. Except as provided in Article IX, no assignment
of any part of this Agreement or any right or obligation hereunder may be made
without the prior written consent of all other parties, and any assignment
attempted without that consent will be void.
6.2 Confidentiality.
6.2.1 Confidentiality Obligation. Except for a Required Disclosure
(as defined below) each party hereto agrees not to disclose or use, directly or
indirectly, any Confidential Information, at any time after execution of this
Agreement, and the Closing. In the event of a contemplated Required Disclosure
of Confidential Information by a party, such party agrees to use his or its best
efforts to provide the other party and the Company an opportunity to object to
the disclosure and as much prior written notice as is possible under the
circumstances. For purposes of this Section 6.2.1, "Confidential Information"
means (i) all information belonging to, used by, or which is in the possession
of any party hereto relating to the Company's or its Subsidiaries' or another
party hereto's business to the extent such information is not intended to be
disseminated to the public or is otherwise not generally known to competitors of
the Company or its Subsidiaries, including, but not limited to, information
relating to the Company's or its Subsidiaries' products, services, strategies,
pricing, customers, representatives, suppliers, distributors, technology,
finances, employee compensation, computer software and hardware, inventions,
developments, or trade secrets and (ii) all information relating to the
acquisition of the Purchased Stock by Buyer hereunder, including, without
limitation, all strategies, negotiations, discussions, terms, conditions and
other information relating to this Agreement and each other document and
agreement delivered in connection herewith. Each party hereto acknowledges that
following the Closing all of the Confidential Information will be the exclusive
proprietary property of the Company or of the appropriate other parties hereto,
as the case may be, whether or not prepared in whole or in part by any party
hereto and whether or not disclosed to or entrusted to the custody of any party
hereto. Nothing herein shall require any party to withhold from disclosure of
any Confidential Information hereunder where disclosure is required by Law,
required to be included in either party's financial statements or required for
the preparation and submission of any report for any agency, commission
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or board requiring such information in connection with such party's business (a
"Required Disclosure"). Notwithstanding any other provision contained in this
Agreement to the contrary, the Buyer may furnish information (including
Confidential Information) to third Persons who are agents or employees of the
Buyer.
6.3 Access to Information. Upon reasonable notice and subject to
applicable Laws relating to the exchange of information, Seller shall afford to
the officers, employees, accountants, counsel and other representatives of
Buyer access, during normal business hours during the period prior to the
Closing Date, to all of the properties of the Company and, during such period,
the Company shall make available to Buyer all information and Books and Records
concerning the Company and its properties, business and employees as Buyer may
reasonably request.
6.4 Conduct of Business. Seller agrees that, from the date hereof through
the Closing, except to the extent otherwise permitted by this Agreement or
consented to in writing by Buyer, Seller shall cause the Company to:
(a) operate its business only in the Ordinary Course of Business;
(b) not enter into or assume any material agreement, contract or
instrument relating to the Company or enter into or permit any material
amendment, supplement, waiver or other modification in respect thereof;
(c) pay accounts payable and other obligations of the Company when
they become due and payable in the ordinary course of business;
(d) use its reasonable efforts to preserve its business organizations
intact, to retain the services of its employees and to preserve its
goodwill and relationships with customers, suppliers, creditors and others
having business relationships with it;
(e) take such action as may be reasonably necessary to preserve its
properties and assets and to maintain its permits and licenses;
(f) maintain its insurance policies in full force and effect;
(g) comply with any applicable Law;
(h) promptly advise Buyer in writing of any material adverse effect
on the Company or its business, financial condition or properties and of
any event or circumstance which will, or with reasonable certainty will,
result in such a material adverse effect on the Company or which will, or
with reasonable certainty will, constitute a violation or breach of any
representation, warranty or covenant contained in this Agreement;
(i) review with Buyer all decisions regarding new contracts or
extensions or amendments of existing contracts, equipment purchases and
sales and other
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operational decisions involving individually or in the aggregate more than
$10,000.00;
(j) except as required by applicable Law or contract, not make or
commit to make any salary or wage increase with respect to any officer,
employee or agent or enter into, amend or alter any Benefit Plan, trust
agreement or arrangement or any employment or consulting contract, unless
consented to by Buyer;
(k) not pay, discharge or satisfy any Liability or Lien other than
current Liabilities reflected in the most recent financial statements of
the Company, and current Liabilities incurred since the date of the most
recent financial statements of the Company in the ordinary course of
business;
(l) not sell, transfer or otherwise dispose of or encumber any of its
cash, assets or properties, or engage in any activity in connection with
any securitization of assets owned by the Company or its Subsidiaries;
(m) not declare or pay any dividend or make any distribution with
respect to the Stock, or redeem, purchase or otherwise acquire any of its
capital stock;
(n) not modify or amend any of the terms of any of the contracts to
which the Company is a party;
(o) not make any contract or understanding to take any action referred
to in Sections 6.4(a) through 6.4(n) above; and
(p) not take any affirmative action, or fail to take any reasonable
action within its control, which would result in any of the changes or
events listed in Sections 3.13(a) through 3.13(p).
6.5 Officers and Employees. Without incurring any Liability with respect to
the Company, Seller shall use best efforts to cause all officers and employees
of the Company to remain with the Company after the Closing Date.
ARTICLE VII
INDEMNIFICATION
7.1 Survival of Representations and Warranties. The representations and
warranties of Seller in Article III and Buyer in Article IV will survive the
Closing and continue to be binding regardless of any investigation made at any
time by any party.
7.2 Indemnification by Seller. Seller will indemnify Buyer and its
Affiliates (exclusive of the Company, its Subsidiaries and the Seller) and the
shareholders, directors, employees and agents of Buyer and its Affiliates
(exclusive of the Company and the Seller) (collectively, the "Buyer Indemnified
Parties") against and hold them harmless from:
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(a) Representations. All Liability, loss, damage, deficiency or cost
(including without limitation reasonable attorneys fees) resulting from or
arising out of any material inaccuracy in or breach of any representation
or warranty by Seller herein or in any other agreement, or document
referred to herein and delivered by or on behalf of Seller in connection
herewith (except, and only to the extent, that any such agreement or
document provides for an economically equivalent remedy to Buyer as is
provided hereunder, the intentions of the parties being to avoid any
duplication of recovery for any breach hereunder); provided, however, in no
event shall this subsection (a) apply to any inaccuracy or breach caused by
an event which occurs after the Closing;
(b) Covenants. All Liability, loss, damage, deficiency or cost
(including without limitation reasonable attorneys fees) from or arising
out of any breach or nonperformance of any covenant or obligation made or
incurred by Seller herein or in any other agreement or document referred to
herein and delivered by or on behalf of Seller in connection herewith
(except, and only to the extent, that any such agreement or document
provides for an economically equivalent remedy to Buyer as is provided
hereunder, the intentions of the parties being to avoid any duplication of
recovery for any breach thereunder).
7.3 Indemnification by Buyer. The Buyer will indemnify Seller and his
agents (collectively, the "Seller Indemnified Parties") against and hold them
harmless from:
(a) Representations. All Liability, loss, damage, deficiency or cost
(including without limitation reasonable attorneys fees) from or arising
out of any inaccuracy in or breach of any representation or warranty by
Buyer herein or in any other agreement, or document referred to herein and
delivered by or on behalf of Buyer in connection herewith (except, and only
to the extent, that any such agreement or document provides for an
economically equivalent remedy to Seller as is provided hereunder, the
intentions of the parties being to avoid any duplication of recovery for
any breach hereunder);
(b) Covenants. All Liability, loss, damage, deficiency or cost
(including without limitation reasonable attorneys fees) resulting from or
arising out of any breach or nonperformance of any covenant or obligation
made or incurred by Buyer herein or in any other agreement or document
referred to herein and delivered by or on behalf of Buyer in connection
herewith (except, and only to the extent, that any such agreement or
document provides for an economically equivalent remedy to Seller as is
provided hereunder, the intentions of the parties being to avoid any
duplication of recovery for any breach thereunder).
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ARTICLE VIII
CONSTRUCTION
8.1 Definitions. When used in this Agreement, the following terms in all
of their tenses and cases will have the meanings assigned to them below or
elsewhere in this Agreement as indicated below:
"Affiliate" of any Person means any person directly or indirectly
controlling, controlled by, or under common control with, any such Person and
any officer, director or controlling person of such Person.
"Books and Records" means all books and records of the Company relating to
the Company's business and properties, including, but not limited to, (i) all
books and records relating to the purchase of materials and supplies, sales of
products, dealings with customers, invoices, suppliers' lists and personnel
records, (ii) all contracts, reports, opinions, maps and other documents
affecting the title to or the value of the properties of the Company, (iii) tax
returns, and (iv) all financial and operating data, files and other information
with respect to the Company's business and properties.
"Buyer" means Farmers & Merchants Investment, Inc., a Nebraska corporation.
"Buyer Indemnified Parties" is defined in Section 7.2.
"Closing" and "Closing Date" are defined in Section 5.1.
"Code" is defined in Section 3.11.
"Confidential Information" is defined in Section 6.2.1.
"GAAP" means generally accepted accounting principles.
"Governmental Authority" means any federal, provincial, municipal, state,
regional or local authority, agency, body, court or instrumentality, regulatory
or otherwise, domestic or foreign, which, in whole or in part, was formed by or
operates under the auspices of any federal, provincial, municipal, state,
regional or local government, domestic or foreign.
"Law" means any common law and any federal, provincial, municipal, state,
regional, local or foreign law, bylaw, rule, statutes, ordinance, rule, order or
regulation.
"Liabilities" means responsibilities, obligations, duties, commitments,
claims and liabilities of any and every kind, whether known or unknown,
accrued, absolute, contingent or otherwise.
"Lien" means any security interest, lien, charge, covenant, condition,
easement, adverse claim, demand, encumbrance, limitation, security interest,
option, pledge, warrant or any other title defect or restriction of any kind.
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"Person" means any individual, corporation, partnership, association or
any other entity or organization.
"Purchased Stock" means the Stock the Company acquired by Buyer at the
Closing and which at the Closing shall represent a percentage of the issued and
outstanding equity interest in the Company as reflected in Section 1.2 hereof.
"Purchase Price" is defined in Section 2.1.
"Seller" means Nelnet Loan Services, Inc., a Nevada corporation.
"Seller Indemnified Parties" is defined in Section 7.3.
"Stock" is defined in the Recitals.
"Subsidiaries" means Retirement Direct, LLC.
"Tax" means any charge or assessment by or liability to any Governmental
Authority, including, but not limited to, any deficiency, interest or penalty.
8.2 Notices. All notices shall be in writing delivered as follows:
(a) If to Buyer:
Farmers & Merchants Investment Inc.
Attention: Xxxx Xxxxxx
0000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone: 402/000-0000
Facsimile: 402/323-1286
(b) If to Seller:
Nelnet Loan Services, Inc.
Attention: Xxxxx X. Xxxxxx
000 X. 00xx Xxxxxx
Xxxxx #000
Xxxxxxx, XX 00000
Telephone: 402/000-0000
Facsimile: 402/458-2399
or to such other address as may have been designated in a prior notice. Notices
sent by registered or certified mail, postage prepaid, return receipt
requested, shall be deemed to have been given two business days after being
mailed, and otherwise notices shall be deemed to have been given when received.
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8.3 Binding Effect. Except as may be otherwise provided herein, this
Agreement will be binding upon and inure to the benefit of the parties and their
respective successors and permitted assigns. Except as otherwise provided in
this Agreement, nothing in this Agreement is intended or will be construed to
confer on any Person other than the parties any rights or benefits hereunder.
8.4 Counterparts. This Agreement may be executed in multiple counterparts,
each of which will be deemed an original, and all of which together will
constitute one and the same document.
8.5 Construction. The language used in this Agreement will be deemed to be
the language chosen by the parties hereto to express their mutual intent, and no
rule of strict construction will be applied against either party. This Agreement
shall be construed to be valid and enforceable to the full extent allowed by
law. It is agreed that if any part, term or provision of this Agreement is
determined to be illegal, unenforceable or in conflict with applicable law, the
validity of the remaining terms and provisions shall not be affected, and the
rights and obligations of the parties shall be construed and enforced as if the
Agreement did not contain the term of provision held to be invalid.
8.6 Modification. No supplement, modification or amendment of this
Agreement will be binding unless made in a written instrument which is signed by
both parties and which specifically refers to this Agreement.
8.7 Entire Agreement. This Agreement and the agreements and documents
referred to in this Agreement or delivered hereunder are the exclusive statement
of the agreement between the parties concerning the subject matter hereof. All
negotiations between the parties are merged into this Agreement, and there are
no representations, warranties, covenants, understandings or agreements, oral or
otherwise, in relation thereto between the parties other than those incorporated
herein and to be delivered hereunder. This Agreement shall specifically
supersede any prior negotiations, understandings or agreements between Seller
and Buyer.
INTENDING TO BE LEGALLY BOUND, the parties have signed this Stock Purchase
Agreement as of the date first above written.
NELNET LOAN SERVICES, INC. FARMERS & MERCHANTS
INVESTMENT INC.
By: /s/ Xxxx Xxxxxx By: /s/ Xxx Xxxxxx
--------------------------- ---------------------------
Title: President Title: Chairman
--------------------------- ---------------------------
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