STOCK PURCHASE AGREEMENT AMONG MICHAEL KARFUNKEL AND LEAH KARFUNKEL, AS TRUSTEES FOR THE 2005 MICHAEL KARFUNKEL GRANTOR RETAINED ANNUITY TRUST, GEORGE KARFUNKEL, RENEE KARFUNKEL, LEAH KARFUNKEL, MICHAEL KARFUNKEL, AST CAPITAL TRUST COMPANY OF...
AMONG
XXXXXXX XXXXXXXXX AND XXXX XXXXXXXXX,
AS TRUSTEES FOR THE 2005 XXXXXXX XXXXXXXXX GRANTOR
RETAINED ANNUITY TRUST,
AS TRUSTEES FOR THE 2005 XXXXXXX XXXXXXXXX GRANTOR
RETAINED ANNUITY TRUST,
XXXXXX XXXXXXXXX,
XXXXX XXXXXXXXX,
XXXX XXXXXXXXX,
XXXXXXX XXXXXXXXX,
AST CAPITAL TRUST COMPANY OF DELAWARE, and
WILMINGTON TRUST FSB
Made as of January 30, 2008
TABLE OF CONTENTS
Page | ||||||
ARTICLE 1 DEFINITIONS | 1 | |||||
1.1 |
Definitions | 1 | ||||
ARTICLE 2 SALE AND PURCHASE OF STOCK | 10 | |||||
2.1 |
Sale and Purchase | 10 | ||||
2.2 |
Closing | 11 | ||||
ARTICLE 3 PAYMENT | 11 | |||||
3.1 |
Purchase Price | 11 | ||||
3.2 |
Closing Payment | 11 | ||||
3.3 |
Escrow | 11 | ||||
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF SELLERS AND XXXXXXXXX TO WT REGARDING AST | 12 | |||||
4.1 |
Organization | 12 | ||||
4.2 |
Authority | 12 | ||||
4.3 |
Governmental Filings; Non-Contravention; Client Consents | 13 | ||||
4.4 |
Capitalization | 13 | ||||
4.5 |
Subsidiaries and Other Relationships | 14 | ||||
4.6 |
Business | 14 | ||||
4.7 |
Assets | 14 | ||||
4.8 |
Clients and Services | 14 | ||||
4.9 |
Receivables | 15 | ||||
4.10 |
Contracts | 15 | ||||
4.11 |
Employment Arrangements | 16 | ||||
4.12 |
Financial Statements | 17 | ||||
4.13 |
Absence of Certain Changes | 18 | ||||
4.14 |
Ordinary Course of Business | 19 | ||||
4.15 |
Litigation and Compliance with Laws | 20 | ||||
4.16 |
Environmental Matters | 22 | ||||
4.17 |
No Broker Dealer; No Investment Adviser | 23 | ||||
4.18 |
Insurance Policies | 23 | ||||
4.19 |
Tax and ERISA Matters | 23 | ||||
4.20 |
Certain Transactions | 26 | ||||
4.21 |
Employee Benefit Plans | 26 | ||||
4.22 |
Intellectual Property | 28 | ||||
4.23 |
Certain Payments | 29 | ||||
4.24 |
Brokerage | 30 |
Page | ||||||
4.25 |
Privacy | 30 | ||||
4.26 |
No Known Regulatory Delays | 30 | ||||
4.27 |
Corporate Records | 30 | ||||
4.28 |
Offices | 30 | ||||
4.29 |
Safe Deposit Boxes and Bank Accounts | 30 | ||||
4.30 |
Power of Attorney | 30 | ||||
4.31 |
Indemnification | 30 | ||||
4.32 |
Disclosure | 31 | ||||
ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF SELLERS AND XXXXXXXXX TO WT | 31 | |||||
5.1 |
Authority | 31 | ||||
5.2 |
Stock | 31 | ||||
5.3 |
No Conflicts | 31 | ||||
5.4 |
Consents; Governmental Approvals | 32 | ||||
5.5 |
Brokerage | 32 | ||||
ARTICLE 6 REPRESENTATIONS AND WARRANTIES OF WT TO SELLERS AND XXXXXXXXX | 32 | |||||
6.1 |
Organization | 32 | ||||
6.2 |
Authority | 32 | ||||
6.3 |
Governmental Filings; Non-Contravention | 33 | ||||
6.4 |
Litigation | 33 | ||||
6.5 |
Investment Representations | 33 | ||||
6.6 |
No Known Regulatory Delays | 34 | ||||
6.7 |
Brokerage | 34 | ||||
6.8 |
Availability of Funds | 34 | ||||
ARTICLE 7 COVENANTS OF SELLERS AND AST | 34 | |||||
7.1 |
Conduct of Business | 34 | ||||
7.2 |
Preservation of Business and Assets | 36 | ||||
7.3 |
Standstill | 36 | ||||
7.4 |
Directors’ and Officers’ Insurance | 36 | ||||
7.5 |
Qualification in Maryland | 36 | ||||
ARTICLE 8 COVENANTS OF SELLERS, KARFUNKEL, AST, AND WT | 36 | |||||
8.1 |
Non-Solicitation | 36 | ||||
8.2 |
Notification | 37 | ||||
8.3 |
Access and Information | 38 | ||||
8.4 |
Further Actions | 38 | ||||
8.5 |
Further Assurances | 38 | ||||
8.6 |
Non-Competition | 39 | ||||
8.7 |
Specific Performance | 39 | ||||
8.8 |
Non-Disparagement | 40 |
ii
Page | ||||||
8.9 |
Tax Returns | 40 | ||||
8.10 |
ERISA Plans | 40 | ||||
ARTICLE 9 COVENANTS OF WT | 41 | |||||
9.1 |
Benefit Plans | 41 | ||||
ARTICLE 10 COVENANTS OF THE PARTIES | 42 | |||||
10.1 |
Regulatory Authorizations | 42 | ||||
10.2 |
Confidentiality | 43 | ||||
10.3 |
Press Releases | 44 | ||||
10.4 |
338(h)(10) Election | 44 | ||||
ARTICLE 11 CONDITIONS PRECEDENT TO WT’S OBLIGATIONS | 45 | |||||
11.1 |
No Litigation; No Opposition | 45 | ||||
11.2 |
Representations and Warranties Sellers and Xxxxxxxxx | 45 | ||||
11.3 |
Annualized Revenue | 46 | ||||
11.4 |
Other Approvals | 46 | ||||
11.5 |
Xxxx-Xxxxx-Xxxxxx | 46 | ||||
11.6 |
Capitalization | 46 | ||||
11.7 |
Performance; Deliveries | 46 | ||||
11.8 |
Employment Agreements | 47 | ||||
11.9 |
No Material Adverse Effect | 48 | ||||
11.10 |
No Liens | 48 | ||||
11.11 |
Satisfaction of Loans; No Indebtedness | 48 | ||||
11.12 |
Financial Statements | 48 | ||||
11.13 |
Affidavits; Form 8023 | 48 | ||||
11.14 |
Releases | 49 | ||||
11.15 |
Tail Insurance Coverage | 49 | ||||
11.16 |
Indemnification Agreements | 49 | ||||
11.17 |
Bonus Payment | 49 | ||||
ARTICLE 12 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF SELLERS, KARFUNKEL, AST | 49 | |||||
12.1 |
No Litigation; No Opposition | 49 | ||||
12.2 |
Representations, Warranties, and Covenants | 49 | ||||
12.3 |
Performance; Deliveries | 50 | ||||
12.4 |
Other Approvals | 50 | ||||
12.5 |
Xxxx-Xxxxx-Xxxxxx | 50 | ||||
ARTICLE 13 INDEMNIFICATION | 51 | |||||
13.1 |
Indemnification by Sellers and Xxxxxxxxx | 51 | ||||
13.2 |
Indemnification by WT | 52 | ||||
13.3 |
Limitation of Liability | 52 |
iii
Page | ||||||
13.4 |
Defense of Claims | 54 | ||||
13.5 |
Prompt Payment | 56 | ||||
13.6 |
Subrogation | 56 | ||||
13.7 |
Purchase Price Adjustment | 56 | ||||
13.8 |
Calculation of Indemnity Payments | 56 | ||||
13.9 |
Exclusive Remedy | 57 | ||||
ARTICLE 14 TERMINATION | 57 | |||||
14.1 |
Termination | 57 | ||||
14.2 |
Effect of Termination | 58 | ||||
ARTICLE 15 MISCELLANEOUS | 58 | |||||
15.1 |
Interpretation | 58 | ||||
15.2 |
Waivers | 59 | ||||
15.3 |
Modifications | 59 | ||||
15.4 |
Governing Law; Consent to Jurisdiction | 59 | ||||
15.5 |
Notices | 59 | ||||
15.6 |
Assignability | 62 | ||||
15.7 |
Captions and Sections; Schedule and Exhibit References | 62 | ||||
15.8 |
Severability | 62 | ||||
15.9 |
Counterparts | 62 | ||||
15.10 |
No Third-Party Beneficiaries | 62 | ||||
15.11 |
Integration | 62 | ||||
15.12 |
Fees and Expenses | 62 |
iv
LIST OF EXHIBITS
A
|
Form of Employment Agreement | |
B
|
Form of Escrow Agreement | |
C
|
Form of Releases | |
D-1
|
Form of Section 1445(b)(2) Certification — Trust | |
D-2
|
Form of Section 1445(b)(2) Certification — Individuals | |
E
|
Form of Legal Opinion of Xxxxxx Xxxxx & Xxxxxxx LLP | |
F
|
Form of Legal Opinion for Trust | |
G-1
|
Modification to Employment Agreement/Arrangement | |
G-2
|
Modification to Employment Agreement/Arrangement | |
G-3
|
Modification to Employment Agreement/Arrangement |
LIST OF SCHEDULES
Seller Disclosure Schedule |
||
Schedule 1.1(d)
|
Unrelated Affiliates | |
Schedule 1.1 (mmm)
|
Certain Employees | |
Schedule 6.3
|
WT — Governmental Filings; Non-Contravention | |
Schedule 6.4
|
WT — Litigation | |
Schedule 7.1(b)
|
Change to Organizational Document | |
Schedule 7.1(h)
|
Employees | |
Schedule 11.4
|
Other Approvals | |
Schedule 11.7(f)(1)
|
Qualification to Do Business as a Foreign Corporation | |
Schedule 11.7(f)(2)
|
Qualification or Registration in Order to Provide Trust or Fiduciary Services | |
Schedule 11.8(a)
|
Terminated Employment Agreements | |
Schedule 11.8(b)
|
Amended Employment Agreements | |
Schedule 11.11(c)
|
Capital Leases | |
Schedule 13.1(c)
|
Predecessor Company | |
Schedule 13.1(c)(4)
|
Existing Litigation | |
Schedule 15.5
|
Sellers’ Addresses |
v
THIS STOCK PURCHASE AGREEMENT (the “Agreement”) is made as of January 30, 2008, among XXXXXXX
XXXXXXXXX and XXXX XXXXXXXXX, as trustees of THE 2005 XXXXXXX XXXXXXXXX GRANTOR RETAINED ANNUITY
TRUST, XXXXXX XXXXXXXXX, XXXXX XXXXXXXXX, and XXXX XXXXXXXXX (hereinafter collectively referred to
as the “Sellers” and individually as a “Seller”), XXXXXXX XXXXXXXXX, (“Xxxxxxxxx”), AST CAPITAL
TRUST COMPANY OF DELAWARE, a Delaware corporation (“AST”), and WILMINGTON TRUST FSB, a
federally-chartered savings bank (“WT”).
BACKGROUND
A. AST provides retirement plan, personal trust, foundation and master custody, collective
fund, and other services to its clients.
X. Xxxxxxx are the only stockholders of AST and collectively own 2,000 shares of common stock
of AST, par value $250 per share, representing all of the issued and outstanding shares of capital
stock of AST (the “Stock”).
C. WT desires to purchase from Sellers, and Sellers desire to sell to WT, all of the Stock,
for the consideration and on the terms and conditions set forth herein.
X. Xxxxxxx, Karfunkel, AST, and WT intend that this Agreement memorialize their respective
representations, warranties, covenants, and other agreements to induce each of them to execute and
deliver this Agreement and the other Transaction Documents, as that term is defined herein.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants contained herein, and
other good and valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions. Capitalized terms used in this Agreement and not otherwise defined herein
shall have the meanings set forth below:
(a) “Acquisition Proposal” has the meaning assigned to that term in Section 8.1(a).
(b) “Advisers Act” means the Investment Advisers Act of 1940, as amended from time to time,
and the rules and regulations of the SEC promulgated thereunder.
(c) “Affiliate” of a Person means a Person that directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with the first Person. As
used in this definition, the term “control” (including the terms “controlled by” and “under common
control with”) means possession, directly or indirectly, of the power to (1) vote 25% or
more of the outstanding voting securities of a Person or (2) otherwise direct the management
policies of a Person by contract, as fiduciaries, or otherwise. Notwithstanding the foregoing, in
connection with AST:
(A) the term “control” shall not include any power of AST to vote outstanding securities of a
Person or otherwise direct the management policies of a Person that arises out of or relates to AST
serving as a trustee or custodian; and
(B) the Persons listed on Section 1.1(d) of the Seller Disclosure Schedule shall not be deemed
Affiliates of AST.
(d) “Aged Accounts Receivable” has the meaning assigned to that term in Section 4.9(c).
(e) “Aggregate Balance” has the meaning assigned to that term in Section 9.1(b).
(f) “AML Compliance Requirements” has the meaning assigned to that term in Section
4.15(b)(1)(C).
(g) “Annualized Revenue” means the product of (1) the revenue of AST for the three full
calendar months preceding the Closing Date, determined in accordance with GAAP consistent with past
practices, and (2) four; provided, however, that (A) for purposes of determining Annualized
Revenue, to the extent a Client has been a Client of AST for less than three full calendar months
preceding the Closing Date, revenue attributable to that Client for purposes of subpart (1) above
shall be the actual revenue from that Client during such period, determined in accordance with GAAP
consistent with past practices, multiplied by the quotient obtained by dividing thirteen by the
number of complete weeks the Client has been a Client of AST; and (B) there shall be excluded from
Annualized Revenue all fees during such three calendar months that are attributable to Clients (x)
from which Consents to the Transactions are required but are not obtained as of the close of
business on the Business Day immediately preceding the Closing Date, or (y) who have advised AST of
their intentions to close their accounts with AST (other than for the reason set forth in subpart
(y) of the definition of Material Adverse Effect). For avoidance of doubt, all fees during the
three calendar months preceding the Closing Date that are attributable to Clients that are
terminated by AST at the request of WT pursuant to Section 8.10 of this Agreement shall be included
in subpart (1) above.
(h) “Antitrust Division” means the Antitrust Division of the United States Department of
Justice or any successor.
(i) “Applicable Law” means all provisions applying to a Person or its property of: (1)
constitutions, treaties, statutes, laws (including the common law), rules, regulations, ordinances,
resolutions, administrative decisions, or orders of a Governmental Authority, (2) Governmental
Approvals, and (3) orders, decisions, injunctions, judgments, awards, and decrees of or agreements
with a Governmental Authority.
(j) “Applicable Withholdings Amount” the meaning assigned to the term in Section 3.2.
2
(k) “AST Employee Plan” has the meaning assigned to that term in Section 4.21(d).
(l) “AST Flex Plan” has the meaning assigned to that term in Section 9.1.
(m) “AST Licenses” has the meaning assigned to that term in Section 4.22(d).
(n) “AST Qualified Plan” has the meaning assigned to that term in Section 4.21(a).
(o) “ASTT” shall mean American Stock Transfer & Trust Company, a New York corporation.
(p) “Bonus Payment” means the aggregate bonus payment amount owed to Xxxxxxxx as set forth in
Amendment No. 1 to Employment Agreement of even date herewith and as in effect on the date hereof
to the Xxxxxxxx Employment Agreement.
(q) “Bankruptcy Code” means the U.S. Bankruptcy Code, as amended from time to time, and any
successor to that code.
(r) “Business Day” means any day (other than Saturday or Sunday) on which banks are open for
business in Wilmington, Delaware.
(s) “Client” means, at any time, any Person who is at that time a customer or client of AST to
which AST provides services (including, without limitation, the Services) and from which AST
receives fees for its services (including, without limitation, the Services).
(t) “Closing” and “Closing Date” have the meanings assigned to those terms in Section 2.2.
(u) “Closing Payment” has the meaning assigned to that term in Section 3.2.
(v) “COBRA” has the meaning assigned to that term in Section 4.21(b).
(w) “Code” means the Internal Revenue Code of 1986, as amended from time to time, the rules
and regulations of the IRS promulgated thereunder, or any corresponding federal tax statute enacted
hereafter. A reference to a specific section of the Code refers to that section as well as any
corresponding provision of any federal tax statute enacted hereafter, as that section is in effect
on the date of application of the provisions hereof containing that reference.
(x) “Collective Fund Services” means offering, distributing, and servicing collective
investment funds (including collective fund accounting, asset data collection, processing,
reconciliation, reporting, and unitization services).
(y) “Consent” means (1) with respect to a Client or other third party whose contract by its
terms terminates upon the consummation of the Transactions contemplated by the Transaction
Documents, that AST shall have entered into a new written contract on substantially equivalent
terms, which contract (A) is effective after giving effect to the Closing and (B) is in form and
substance reasonably acceptable to WT, and (2) with respect to a Client or other third party whose
contract requires consent from a party or parties thereto or partners therein for it to
3
survive, or for no breach or default to exist as a result of, the Transactions contemplated by
the Transaction Documents, that AST shall have obtained such required consent (A) in writing and
(B) in form and substance reasonably acceptable to WT.
(z) “Continuing Employees” has the meaning assigned to that term in Section 9.1(a).
(aa) “Contract” means any agreement, contract, commitment, arrangement, or understanding.
(bb) “Covered Person” has the meaning assigned to that term in Section 4.31.
(cc) “Deductible Amount” has the meaning assigned to that term in Section 13.3(a)(2).
(dd) “Disclosing Party” has the meaning assigned to that term in Section 10.2(a).
(ee) “Effective Time” has the meaning assigned to that term in Section 2.2.
(ff) “Election” has the meaning assigned to that term in Section 10.4(a).
(gg) “Employee Plan” or “Plan” has the meaning assigned to that term in Section 4.21(d).
(hh) “Employment Agreement” means the four-year employment agreement between AST and Xxxxxxxx
in the form of Exhibit A.
(ii) “Employment Arrangements” has the meaning assigned to that term in Section 4.11(a).
(jj) “Environmental Laws” has the meaning assigned to that term in Section 4.16(a).
(kk) “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time
to time, and the rules and regulations of the United States Department of Labor and the IRS
promulgated thereunder.
(ll) “ERISA Affiliate” means any trade or business (whether or not incorporated) which is or
which has at any time in the preceding six (6) years been considered a single employer with AST
within the meaning of Section 414(b), (c), (m) or (o) of the Code or Section 4001(b) of ERISA.
(mm) “ERISA Entity” has the meaning assigned to that term in Section 8.10.
(nn) “ERISA Plan” has the meaning assigned to that term in Section 4.19(n)(1).
(oo) “Escrow Agreement” means the agreement regarding the Escrow Amount among Escrow Agent,
Sellers, Karfunkel, and WT substantially in the form of Exhibit B.
(pp) “Escrow Amount” means the funds held in the Escrow Account from time to time.
4
(qq) “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time,
and the rules and regulations of the SEC promulgated thereunder.
(rr) “Excluded Claims” has the meaning assigned to that term in Section 13.9.
(ss) “Existing Litigation” has the meaning assigned to that term in Section 13.1(c)(4).
(tt) “Financial Statements” has the meaning assigned to that term in Section 4.12(a).
(uu) “FINRA” means the Financial Industry Regulatory Authority and any successor thereto.
(vv) “Foundation and Master Custody Services” means services for foundations, tribes, and
other institutional clients (including reporting, cashiering, fiduciary services, unitized
accounting and sub-accounting, and data processing services).
(ww) “FTC” means the Federal Trade Commission or any successor thereto.
(xx) “GAAP” means United States generally accepted accounting principles applied consistently
with prior periods.
(yy) “Governmental Approval” means any consent, approval, authorization, waiver, permit,
grant, franchise, concession, agreement, license, exemption or order of, registration, declaration
or filing with, or report or notice to a Governmental Authority (including the expiration of any
waiting or other time period required to pass before governmental consent or acquiescence may be
assumed or relied on).
(zz) “Governmental Authority” means any United States or foreign government, any state or
other political subdivision thereof, any entity exercising executive, legislative, judicial,
regulatory, or administrative functions of or pertaining to government, including, without
limitation, the SEC, the FTC, the Antitrust Division, or any other government authority, agency,
department, board, commission, or instrumentality of the United States or any foreign government or
any state or other political subdivision thereof or any state insurance, accounting, securities, or
banking authority (including the Delaware Bank Commission and the Arizona Banking Department), the
Board of Governors of the Federal Reserve System, a Federal Reserve Bank, the Office of the
Comptroller of the Currency, the Federal Deposit Insurance Corporation, the FINRA, the NYSE (as
that term is hereinafter defined), any other similar self-regulatory organization, and any court or
tribunal of competent jurisdiction.
(aaa) “HSR Act” means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended.
(bbb) “Indebtedness” means, as applied to any Person, all indebtedness of such Person for
borrowed money, whether current or funded, or secured or unsecured, excluding current trade
payables incurred in the ordinary course of business consistent with past practice, but including,
(1) all obligations of that Person evidenced by bonds, debentures, notes, or other similar
instruments or debt securities, (2) all indebtedness of that Person secured by a purchase money
mortgage or other Lien to secure all or part of the purchase price of the property subject
5
to such Lien, (3) all obligations under leases that shall have been or must be, in accordance with
GAAP, recorded as capital leases in respect of which such Person is liable as lessee, (4) any
liability of that Person in respect of banker’s acceptances or letters of credit, and (5) all
indebtedness referred to above which is directly or indirectly guaranteed by that Person or which
that Person has agreed (contingently or otherwise) to purchase or otherwise acquire or in respect
of which it has otherwise assured a creditor against loss.
(ccc) “Indemnified Party” means a Person entitled to be indemnified under Article 13 hereof.
(ddd) “Indemnifying Party” means a Person obligated to indemnify another Person under Article
13 hereof.
(eee) “Independent Expert” has the meaning assigned to that term in Section 10.4(c).
(fff) “Intellectual Property” means (1) registered and unregistered United States and foreign
trademarks, service marks, trade names, trade dress, copyrights, Internet domain names, web sites,
email addresses, telephone numbers (including 800/888 or similar numbers) and similar rights
(including registrations and applications to register, or renew the registration of, any of these);
(2) United States and foreign letters patent and patent applications; (3) inventions, processes,
designs, formulae, trade secrets, know-how, and confidential information; (4) computer software,
data, and documentation; (5) similar intellectual property rights; (6) rights of publicity; (7) all
rights to xxx for and remedies against past, present, and future infringements of any of the above,
and rights of priority and protection of interests in any of the above under Applicable Law; (8)
tangible embodiments of any of the above (in any medium, including electronic media); and (9)
licenses of any of the above.
(ggg) “Interim Financial Statements” has the meaning assigned to that term in Section 12.13.
(hhh) “Internal Controls” has the meaning assigned to that term in Section 4.15(b)(1)(C).
(iii) “IRS” means the United States Internal Revenue Service.
(jjj) “Knowledge” means that which a Person actually knows or should know following reasonable
inquiry. “Knowledge of AST” shall mean Knowledge of any Seller, Xxxxxxxxx, Xxxx Xxxxxxxx, Xxx
Xxxxxxx, Xxxxxxx Xxxxxxxx, Xxx Xxxxxxx, Xxxxxx Xxxx, and/or Xxxxxxx Xxxx.
(kkk) “Leased Real Property” has the meaning assigned to that term in Section 4.16(a).
(lll) “Licenses” means licenses, franchises, permits, and regulatory approvals of or from any
Governmental Authority or pursuant to Applicable Law.
(mmm) “Lien” means a charge, mortgage, pledge, security interest, restriction (other than a
restriction on transfer arising under federal or state securities laws (or rules and regulations
thereunder) or laws relating to the regulation of brokers, dealers, investment advisers,
6
investment companies, banks, insurance companies, and other regulated businesses), lien, or
encumbrance of any nature.
(nnn) “Losses” has the meaning assigned to that term in Section 13.1.
(ooo) “Material Adverse Effect” with respect to (1) a Person, including AST, means any
condition, change, event, circumstance, or event that, individually or in the aggregate, has
resulted in or would be reasonably likely to result in a material adverse effect on the financial
condition, business, assets, or results of operations of that Person; and (2) AST, also means that
the Annualized Revenue of AST as of the close of business on the Business Day immediately preceding
the Closing Date is less than $24,000,000. Notwithstanding subpart (1) or (2) above, with respect
to AST, a Material Adverse Effect shall not include (A) termination of the employment of
individuals listed on Schedule 1.1(mmm) prior to Closing or (B) any adverse change, effect, or
circumstance (i) resulting from or arising in connection with general economic or political
conditions affecting the financial services industry generally, (ii) attributable directly to the
announcement of this Agreement, which attribution must be proven by AST to the reasonable
satisfaction of WT, (iii) relating to or arising out of any action taken by AST at the request of
WT pursuant to Section 8.10 of this Agreement, or (iv) any circumstance specified in the Seller
Disclosure Schedule.
(ppp) “Material Contracts” has the meaning assigned to that term in Section 4.10(a).
(qqq) “Maximum Amount” has the meaning assigned to that term in Section 13.3(a)(2).
(rrr) “Maximum Claim Amount” has the meaning assigned to that term in Section 13.3(a)(1).
(sss) “NYSE” means NYSE Euronext and any successor thereto.
(ttt) “OFAC Compliance Requirement” has the meaning assigned to that term in Section
4.15(b)(1)(C)(ii).
(uuu) “Original Trust Business” means the division of ASTT which provided Services from
January 8, 2004, through January 4, 2007, the assets of which were transferred to a wholly-owned
subsidiary of ASTT effective on December 29, 2006 and which subsidiary was merged with and into AST
on January 4, 2007.
(vvv) “Original Trust Business Period” means the period from January 8, 2004 through January
4, 2007.
(www) “Other Claim” has the meaning assigned to that term in Section 13.4(b).
(xxx) “Party” means any Seller, Karfunkel, AST, or WT, and “Parties” means all Persons that
qualify as a Party.
(yyy) “Permitted Liens” means: (1) Liens for Taxes, assessments, or other governmental charges
not yet due and payable; (2) Liens currently existing pursuant to any
7
agreement or commitment evidencing, or entered into by AST in connection with, Indebtedness of
AST to be paid and discharged prior to Closing; (3) workers’, carriers’, and mechanics’ Liens
incurred in the ordinary course of business, consistent with past practice; (4) Liens that are
immaterial in character, amount and extent and which do not materially detract from the value or
materially interfere with the present or the proposed use of the properties they affect; and (5)
Liens on assets held by AST solely in its capacity as trustee in connection with its Services.
(zzz) “Person” means any individual, partnership, corporation, limited liability company,
limited liability partnership, association, trust, joint venture, unincorporated organization, and
any government, governmental department, authority, or agency, or political subdivision thereof.
(aaaa) “Personal Property Leases” has the meaning assigned to that term in Section 4.7(b).
(bbbb) “Personal Trust Services” means personal trust accounting, xxxx paying, recordkeeping,
trust oversight and administration, discretionary and non-discretionary distribution, reporting,
and fiduciary tax preparation services.
(cccc) “Policies” has the meaning assigned to that term in Section 4.18(a).
(dddd) “Pro Rata Shares” means, with respect to each Seller, that number (expressed as a
percentage) that expresses the ratio that (1) the number of shares of Stock owned by such Seller on
the date hereof, bears to (2) 2,000.
(eeee) “Prohibited Transaction” has the meaning assigned to that term in Section 4.19(m)(1).
(ffff) “PTE” has the meaning assigned to that term in Section 4.19(m)(2).
(gggg) “Purchase Price” has the meaning assigned to that term in Section 3.1.
(hhhh) “QPAM” has the meaning assigned to that term in Section 4.19(m)(2).
(iiii) “Real Property Leases” has the meaning assigned to that term in Section 4.7(a).
(jjjj) “Receiving Party” has the meaning assigned to that term in Section 10.2(a).
(kkkk) “Registered Intellectual Property” has the meaning assigned to that term in Section
4.22(c).
(llll) “Release” means the general release of all claims against AST executed by each Seller,
Xxxxxxxxx, and ASTT substantially in the form of Exhibit B.
(mmmm) “Restricted Area” has the meaning assigned to that term in Section 8.6(a).
(nnnn) “Restricted Party” has the meaning assigned to that term in Section 8.6(a).
8
(oooo) “Restricted Period” has the meaning assigned to that term in Section 8.6(a).
(pppp) “Retirement Plan Services” means retirement plan administration services (including
trust administration, reporting, and unitization services) for (1) defined contribution plans,
including 401(k), profit sharing, employee stock ownership plans, and money purchase plans; (2)
defined benefit pension plans; and (3) non-qualified deferred compensation plans, and plans created
under Section 403 (b) or 457 of the Code.
(qqqq) “SEC” means the United States Securities and Exchange Commission or any successor.
(rrrr) “Securities Act” means the Securities Act of 1933, as amended from time to time and the
rules and regulations of the SEC promulgated thereunder.
(ssss) “Seller Disclosure Schedule” means the disclosure schedule dated and delivered as of
the date hereof by AST, Sellers, and Xxxxxxxxx to WT, and which is attached to this Agreement.
(tttt) “Seller Indemnitees” has the meaning assigned to that term in Section 13.2.
(uuuu) “Services” means Retirement Plan Services, Personal Trust Services, Foundation and
Master Custody Services, and Collective Fund Services.
(vvvv) “Similar Law” has the meaning assigned to that term in Section 4.19(m)(1).
(wwww) “Stock” has the meaning assigned to that term in the recitals.
(xxxx) “Straddle Period” has the meaning assigned to that term in Section 13.1(e).
(yyyy) “Subsidiary” or “Subsidiaries” means any corporation, company, limited liability
company, association, joint venture, partnership, or other organization, whether incorporated or
unincorporated, of which more than twenty-five percent (25%) of either the equity interests in, or
the voting control of, that other organization is beneficially owned by a Person (either alone or
through or together with any other Person pursuant to any agreement, arrangement, contract, or
other commitment), directly or indirectly, through Subsidiaries or otherwise, or of which a Person
serves as the general partner or managing member.
(zzzz) “Taxes” means all United States federal, state, local or foreign taxes, charges, fees,
levies, or other assessments (including, without limitation, income, gross receipts, excise, real
and personal property, profits, estimated, severance, occupation, production, capital gains,
capital stock, goods and services, environmental, employment, social security, disability,
withholding, stamp, value added, alternative or add-on minimum, sales, transfer, use, license,
payroll, and franchise taxes), any other tax, custom, duty, or governmental fee, or other like
assessment or charge of any kind, imposed by the United States or any state, county, local, or
foreign government, subdivision, or agency thereof, and shall include any interest, penalty, fine,
or addition to tax attributable to any of the foregoing.
9
(aaaaa) “Tax Returns” means any report, return, declaration, or other information required to
be supplied to any taxing authority in connection with Taxes (including any attached schedules),
including, without limitation, any information return, claim for refund, amended return, or
declaration of estimated Tax.
(bbbbb) “Termination Date” has the meaning assigned to that term in Section 14.1(b).
(ccccc) “Transactions” means the transactions contemplated by this Agreement and by any
Transaction Document delivered in connection with this Agreement.
(ddddd) “Transaction Documents” means this Agreement, the Employment Agreement, the Escrow
Agreement, the Releases, any and all exhibits and schedules appertaining hereto and thereto, and
any and all other agreements and documents contemplated by this Agreement and executed by the
Parties in connection herewith.
(eeeee) “Transferred Flexible Spending Accounts” has the meaning assigned to that term in
Section 9.1.
(fffff) “Xxxxxxxx” means Xxxxxxx Xxxxxxxx.
(ggggg) “Xxxxxxxx Employment Agreement” means the Employment Agreement dated as of December
31, 2006 between The Capital Trust Company of Delaware and Xxxxxxxx.
(hhhhh) “Virus” means a computer program that replicates itself on a computer or network of
computers and damages other computer programs or data located on the computer or network or
otherwise causes a defect in the operation of the computer or network.
(iiiii) “WT Flex Plan” has the meaning assigned to that term in Section 9.1.
(jjjjj) “WTC” means Wilmington Trust Corporation, a Delaware bank holding company.
(kkkkk) “WT Clients” means all clients of WT or any of its Affiliates, including, without
limitation, all banking, lending, fiduciary, personal trust and agency, investment management,
brokerage, corporate trust and agency, custody, escrow, special purpose vehicle, holding company,
entity management, captive insurance, bookkeeping, collateral administration, and treasury
operations services clients. For this purpose, AST is not considered to be an Affiliate of WT.
(lllll) “WT Indemnitees” has the meaning assigned to that term in Section 13.1.
ARTICLE 2
SALE AND PURCHASE OF STOCK
2.1 Sale and Purchase. Subject to the terms, provisions, and conditions and on the
basis of the representations, warranties, and covenants herein, Sellers shall sell, assign,
transfer,
10
convey, and deliver to WT, and WT shall purchase from Sellers, all right, title, and interest
in and to the Stock at the Closing, free and clear of any Liens.
2.2 Closing. The closing of the Transactions (the “Closing”) shall take place at the
offices of Xxxxxxx XxXxxxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000, at 11:00 a.m., local time,
and be effective at the close of business on the closing date (the “Effective Time”), which shall
be five Business Days after the fulfillment or waiver of each condition set forth in Articles 11
and 12 hereof (other than the conditions that are fulfilled or waived as a part of the Closing), or
such other date as the Parties may mutually agree, that date being referred to herein as the
“Closing Date.” The Parties shall use their reasonable best efforts to cause the conditions to
Closing set forth in Articles 11 and 12 hereof to be satisfied as soon as practicable, and shall
cause to be executed at Closing the Transaction Documents by the respective Parties to each of
those documents.
ARTICLE 3
PAYMENT
3.1 Purchase Price. The purchase price for the Stock shall be Ninety Million Dollars
($90,000,000), subject to adjustment as hereinafter provided (as so adjusted, the “Purchase
Price”).
3.2 Closing Payment. At Closing:
(a) WT shall pay to Sellers, in cash, by wire transfer of immediately available funds to the
bank accounts designated in writing by Sellers, in accordance with their respective Pro Rata
Shares, an amount equal to (1) Ninety Million Dollars ($90,000,000), minus (2) the Escrow Amount,
minus (3) the Bonus Payment (the “Closing Payment”); and
(b) WT shall deposit, in cash, by wire transfer of immediately available funds, the Escrow
Amount in the account specified in the Escrow Agreement.
In addition, Sellers hereby irrevocably instruct WT to pay to (1) Xxxxxxxx at the Closing the
Bonus Payment reduced by any taxes and other amounts that are legally required to be withheld (the
“Applicable Withholdings Amount”), and (2) AST at the Closing the Applicable Withholdings Amount.
3.3 Escrow.
(a) The “Escrow Amount” shall equal Two Million Eight Hundred Fifty Thousand Dollars
($2,850,000), representing the total of Three Hundred Fifty Thousand Dollars ($350,000) to secure
collection of Aged Accounts Receivable and Two Million Five Hundred Thousand Dollars ($2,500,000)
to secure potential claims for Existing Litigation.
(b) Subject to Section 3.3(c), the Escrow Amount shall be held pursuant to the terms of the
Escrow Agreement.
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(c) Each disbursement to Sellers in accordance with the terms of the Escrow Agreement of all
or part of the Escrow Amount shall be (1) deemed to be part of the Purchase Price, and (2) paid to
Sellers, in cash, by wire transfer of immediately available funds to the accounts designated in
writing by Sellers, in accordance with their respective Pro Rata Shares. Except as expressly
provided for in the Escrow Agreement, WT shall have no obligation to pay or have disbursed to
Sellers all or part of the Escrow Amount. The Purchase Price shall be reduced by the Escrow
Amount that is not disbursed to Sellers in accordance with the terms of the Escrow Agreement.
Nothing contained in this Section 3.3 or the Escrow Agreement shall limit the rights of WT under
Article 13 hereof.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF SELLERS AND XXXXXXXXX TO WT REGARDING AST
Sellers and Xxxxxxxxx jointly and severally represent and warrant to WT as follows, subject
to the Seller Disclosure Schedule (the Seller Disclosure Schedule has been arranged for purposes
of convenience only, in sections corresponding to the Sections of this Article 4 and Article 5):
4.1 Organization. AST is duly organized, validly existing, and in good standing under
Delaware law, and is duly licensed, registered, and/or qualified to do business and in good
standing as a foreign corporation in each other jurisdiction in which it is so required to qualify
by reason of the conduct of its business or the ownership or leasing of its properties or assets.
All such licenses, registrations, and/or qualifications are identified on Section 4.1 of the Seller
Disclosure Schedule. AST has all requisite power and authority, and possesses and maintains all
necessary or required rights, Licenses, authorizations, permits, and approvals, to own, lease, and
operate its properties and assets, perform all of its obligations under contracts to which it is a
party or by which it is bound, and carry on its business as it currently is conducted. AST has
delivered to WT true and complete copies of the governance and organizational documents of AST,
each as amended and in effect on the date hereof.
4.2 Authority. AST has all requisite power and authority to execute, deliver, and
perform this Agreement and each other Transaction Document to which it is to be a party. This
Agreement and each other Transaction Document to be executed, delivered, and performed by AST in
connection with the Transactions have been duly and validly approved by all necessary action of
AST. This Agreement and each other Transaction Document to which AST is a party represents or, when
executed and delivered, will represent, the valid and legally binding obligation of AST,
enforceable against it in accordance with its terms, except as may be limited by (a) bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer, or similar laws
now or hereafter relating to creditors’ rights generally or (b) general principles of equity,
whether asserted in a proceeding in equity or at law.
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4.3 Governmental Filings; Non-Contravention; Client Consents.
(a) No notices, reports, applications, or other filings are required to be made by AST with,
nor are any Governmental Approvals required to be obtained by AST from, any Governmental Authority
in connection with the execution and delivery of this Agreement and the other Transaction Documents
and the consummation by AST of the Transactions, except for such notices, reports, applications and
other filings (1) set forth on Section 4.3(a) of the Seller Disclosure Schedule or (2) as may be
required under the HSR Act.
(b) Except as set forth on Section 4.3(b) of the Seller Disclosure Schedule, the execution,
delivery, and performance of this Agreement and each other Transaction Document to be executed,
delivered, and performed by AST in connection with the Transactions do not and will not: (1)
conflict with or violate the certificate of incorporation or bylaws of AST; (2) conflict with,
violate, or result in a default of any Material Contract; (3) conflict with, violate, result in a
violation of, or constitute a default under, any Applicable Law or any order of or restriction
imposed by any court or other Governmental Authority on, AST or its properties or assets; (4)
require AST to obtain any Consent, approval, waiver, or license from, or make any filing with, any
Person (other than a Governmental Authority or a Client of AST); or (5) give rise to a right of
termination, cancellation, amendment or acceleration of an obligation or loss of a benefit
affecting, or result in the creation or imposition of any Liens on, any of AST’s properties or
assets.
(c) Except as set forth on Section 4.3(c) of the Seller Disclosure Schedule, the execution,
delivery, and performance of this Agreement and each other Transaction Document to be executed,
delivered, and performed by AST in connection with the Transactions do not and will not require AST
to obtain any Consent, approval, or waiver from any Client.
4.4 Capitalization.
(a) The Stock constitutes all of the issued and outstanding shares of capital stock of AST.
Sellers are, and on the Closing Date shall be, the record and beneficial owners of all right,
title, and interest in and to all of the Stock and have good and transferable title thereto.
Section 4.4(a) of the Seller Disclosure Schedule sets forth a true and complete list of the name
and address of each owner of any shares of the Stock and the number of shares so owned. Sellers
are the only legal and beneficial owners of the Stock. Other than the Stock, there are no other
issued and outstanding securities of AST. There are no (1) outstanding options, warrants, puts,
calls, commitments, agreements, subscriptions, contracts, preemptive, rights of first refusal, or
other rights to purchase, issue, or otherwise acquire the Stock or any other securities of AST or
(2) obligations or securities convertible into or exchangeable for shares of the Stock or other
securities of AST. None of the Stock or other securities of AST is subject to any Lien. No
legend or other reference to any purported Lien appears on any certificate representing issued and
outstanding Stock. All of the shares of outstanding Stock have been duly authorized and validly
issued and are fully paid and nonassessable. No shares of AST’s capital stock are held in
treasury. None of the outstanding shares of outstanding Stock was issued in violation of the
Securities Act or other Applicable Law.
(b) There are no existing rights, agreements, or commitments obligating or that
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might obligate AST to issue, transfer, sell, or redeem any Stock or other securities of AST.
4.5 Subsidiaries and Other Relationships. AST: (a) does not have any Subsidiaries;
(b) does not own, directly or indirectly, any capital stock of or other equity interest or
proprietary interest in any Person or in any other entity or enterprise; (c) does not serve as a
general partner or limited partner of any partnership or as a managing member or member of any
limited liability company; (d) is not an Affiliate of any other Person; (e) except as set forth in
Section 4.5 of the Seller Disclosure Schedule, is not a party to any joint venture, profit-sharing,
or similar agreement regarding the profitability or financial results of AST or the division of
revenues or profits of AST; and (f) does not own or have any contract to acquire or dispose of any
equity securities or other securities of any Person or any direct or indirect equity or ownership
in any business. Notwithstanding the foregoing, for purposes of Sections 4.5(a), (b), (c), (d),
and (f), all equity interests in or voting control of any corporation, company, limited liability
company, association, joint venture, partnership, or other organization held by AST as a trustee or
custodian shall be disregarded.
4.6 Business. AST is currently, and since February 10, 2006, has been, engaged solely
in the business of providing the Services to its clients. During the Original Trust Business
Period, the Original Trust Business was engaged solely in the business of providing the Services to
its clients.
4.7 Assets. AST has good and marketable title to all of the assets it owns. No asset
owned by AST is subject to any Lien in favor of any Person, other than Permitted Liens, and all
such assets are accounted for in the Financial Statements in accordance with GAAP. The assets
owned and leased by AST include all assets necessary for the conduct of, or otherwise material to,
AST’s business as currently conducted by AST, and the leasehold improvements, furniture, fixtures,
equipment and other tangible personal property used in AST’s business are in suitable working
condition for AST’s current uses of them. AST does not own any real property. To the Knowledge of
AST, no personal property owned by AST is subject to any Lien except for Permitted Liens. Section
4.7 of the Seller Disclosure Schedule sets forth a true and complete list of:
(a) All leases for real property (“Real Property Leases”) by AST together with the location
of that property, monthly lease payments, and lease termination dates, true and complete copies of
which have been delivered by AST to WT;
(b) All personal property leases (“Personal Property Leases”) under which AST is obligated to
make annual lease payments to any Person in excess of $50,000, true and complete copies of which
have been delivered by AST to WT; and
(c) All personal property owned by AST together with the book value thereof that is reflected
on AST’s books.
4.8 Clients and Services.
(a) Section 4.8(a) of the Seller Disclosure Schedule sets forth a true and complete list of
(1) the names of all Clients of AST as of June 30, 2007, and (2) AST’s revenue
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attributable to each such Client for the six months ended June 30, 2007. True and complete
copies of the fee schedules applicable to each Client listed in Section 4.8(a) of the Seller
Disclosure Schedule have been made available to WT.
(b) Except as set forth in Section 4.8(b) of the Seller Disclosure Schedule, neither AST nor
any director, officer, employee, or agent, any other Person associated with or acting for or on
behalf of AST, has paid, nor will AST or any such Person pay, any Person, directly or indirectly,
for soliciting business of any kind for AST.
4.9 Receivables. All accounts receivable set forth on the books and records of AST,
to the extent not paid in full by the account debtor prior to the date hereof, (a) are valid; (b)
have arisen solely out of bona fide performance of services and other business transactions in the
ordinary course of business consistent with past practice; (c) except as set forth in Section
4.9(c) of the Seller Disclosure Schedule, are not more than 120 days past due (accounts receivable
that are more than 120 days past due are referred to herein as the “Aged Accounts Receivable”); and
(d) are not subject to any prior Lien and are not subject to valid defenses, set-offs, or
counterclaims, and there are no refunds, discounts, or other adjustments payable in respect of any
such account receivable.
4.10 Contracts.
(a) Section 4.10(a) of the Seller Disclosure Schedule sets forth a list of each of the
following Contracts to which AST is party or by which it or any of its properties or assets is
bound (each Contract listed in Section 4.10(a) of the Seller Disclosure Schedule, together with
each Contract of AST with a Client, a “Material Contract”):
(1) all Contracts with Persons, other than Contracts with Clients, involving payments by or to
AST in excess of, or that would reasonably be expected to be in excess of, $50,000 for (A) the
twelve-month period ending on December 31, 2007 or (B) any consecutive twelve-month period after
December 31, 2007;
(2) all Contracts with third-party administrators;
(3) all Contracts that require AST to purchase its total requirements of any product or
service from a third party or that contain “take or pay” provisions;
(4) all Contracts that are notes, debentures, bonds, equipment trusts, letters of credit,
loans, or other Contracts for the borrowing or lending of money (other than to employees for travel
expenses in the ordinary course of business), pledges, or guarantees of the Indebtedness of any
other Person;
(5) all Contracts that restrict the ability of AST to engage in any line of business, acquire
any property, develop or distribute any product, provide any service, compete with any Person, or
solicit any customer or Client;
(6) all Contracts that relate to the acquisition or disposition of any business (whether by
merger, sale of stock, sale of assets, or otherwise);
15
(7) all Contracts with any Affiliate of AST other than (A) Contracts listed in Section 4.11 of
the Seller Disclosure Schedule, or (B) Contracts listed in Section 4.20 of the Seller Disclosure
Schedule;
(8) all joint venture, partnership, or other similar Contracts;
(9) all Contracts under which AST shares with any other Person revenues or commissions; and
(10) all Contracts of AST relating to the acquisition, issuance, voting, registration, sale or
transfer, preemptive rights, right of participation, right of first refusal, repurchase, or
redemption rights, with respect to any securities of AST.
The Contracts listed in Section 4.10(a) of the Seller Disclosure Schedule do not relate to
Real Property Leases, Employment Arrangements, or AST Licenses, such items being the subject of
Sections 4.7, 4.11, or 4.22(d), respectively.
(b) AST is not in default in the performance, observance, or fulfillment of any obligation,
covenant, or condition contained in any Material Contract, Real Property Lease, Personal Property
Lease, Employment Arrangement, or AST License, and, to the Knowledge of AST, the other parties
thereto are not in default in the performance, observance, or fulfillment of any obligation,
covenant, or condition contained in any such Material Contract, Real Property Lease, Personal
Property Lease, Employment Arrangement, or AST License. Each Material Contract, Real Property
Lease, Personal Property Lease, Employment Arrangement, and AST License to which AST is a party is
in full force and effect and constitutes a valid and legally binding obligation of AST,
enforceable against AST in accordance with its terms, and, to the Knowledge of AST, against the
other parties thereto in accordance with its respective terms, except as may be limited by (1)
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer, or
similar laws now or hereafter relating to creditors’ rights generally or (2) general principles of
equity, whether asserted in a proceeding in equity or at law. There is not under any Material
Contract, Real Property Lease, Personal Property Lease, Employment Arrangement, or AST License an
existing breach or event that, with the giving of notice, the lapse of time, or both, would become
a breach on the part of AST or, to the Knowledge of AST, on the part of any other party thereto.
True and complete copies of all Material Contracts have been made available to WT.
(c) Section 4.10(c) of the Seller Disclosure Schedule sets forth a true and complete list of
all Contracts to which AST is a party or by which it or any of its properties or assets is bound,
other than (i) Material Contracts, (ii) Real Property Leases, (iii) Employment Arrangements, (iv)
AST License, and (v) Contracts to which AST is a party solely in its capacity as a trustee,
custodian, or agent in connection with providing Services to a Client.
4.11 Employment Arrangements.
(a) Except as set forth in Section 4.11(a) of the Seller Disclosure Schedule, AST does not
have any obligation, contingent or otherwise, under (1) any written or oral employment, collective
bargaining, or other labor agreement, (2) any written or oral agreement
16
containing severance or termination pay arrangements, (3) any written or oral deferred
compensation agreement, retainer, or consulting arrangement (except any AST Employee Plan listed
in Section 4.21(d) of the Seller Disclosure Schedule), (4) any pension or retirement plan, bonus,
or profit-sharing plan, or stock option or stock purchase plan (except any AST Employee Plan
listed in Section 4.21(d) of the Seller Disclosure Schedule), or (5) any other written or oral
employee contract or non-terminable employment arrangement (collectively, (1) — (5) are the
“Employment Arrangements”). AST is not in default with respect to any term or condition of any
Employment Arrangement.
(b) Except as set forth on Section 4.11(b) of the Seller Disclosure Schedule, hereto, no
current or former employee or consultant of AST is on a leave of absence, including short-term or
long-term disability leave or leave covered under the Family and Medical Leave Act of 1993 or the
Uniformed Services Employment and Reemployment Rights Act of 1994. No current or former employee
or consultant of AST or any child or present or former spouse of any such individual is receiving
benefits under COBRA or is entitled to elect COBRA coverage under any AST Employee Plan as a
result of any event occurring prior to Closing.
4.12 Financial Statements.
(a) AST has delivered to WT an unaudited balance sheet, income statement, and statement of
cash flows of AST as of December 31, 2007 and for the twelve months then ended (collectively, the
“Financial Statements”), as set forth in Section 4.12(a) of the Seller Disclosure Schedule.
(b) The Financial Statements, subject to the qualifications and exceptions noted thereon or
in the notes thereto: (1) have been prepared on an accrual basis in accordance with GAAP applied
on a consistent basis throughout the period indicated, except that the Financial Statements do not
contain any footnotes required by GAAP, and (2) fairly present the financial condition of AST as
of the dates thereof and the results of operations for the period then ended. AST has maintained
since January 4, 2007, and ASTT maintained during the Original Trust Business Period with respect
to the Original Trust Business, books and records accurately reflecting its transactions in
reasonable detail and accounting controls, policies, and procedures sufficient to ensure that (A)
all transactions are executed in accordance with management’s general or specific authorization,
(B) all transactions are recorded as necessary to permit the preparation of financial statements
in conformity with GAAP and to maintain proper accountability for items, (C) access to its
properties and assets is permitted only in accordance with management’s general or specific
authorization, and (D) the recorded accountability for items is compared with the actual levels at
reasonable intervals and appropriate action is taken with respect to any differences.
(c) AST does not have any debt, obligation, or liability, absolute, fixed, contingent, or
otherwise, of any nature whatsoever, whether due or to become due, including any unasserted claim
or any off-balance sheet financial obligation, whether incurred directly or by any predecessor
thereto, and whether arising out of any act, omission, transaction, circumstance, sale of goods or
services, state of facts, or other condition, except (1) those specifically reflected or reserved
against on the Financial Statements (but only to the extent so reflected or reserved against) and
(2) liabilities incurred in the ordinary course of business since
17
the date of the Financial Statements consistent with past practices.
(d) Except as set forth in Section 4.12(d) of the Seller Disclosure Schedule, AST does not
have any outstanding Indebtedness.
(e) When delivered prior to the Closing, the Interim Financial Statements shall fairly
present the Aged Accounts Receivable as of the date thereof and shall reflect the liability and
corresponding expense associated with the Bonus Payment (including taxes and other amounts legally
required to be withheld in connection with the payment thereof).
4.13 Absence of Certain Changes. Between December 31, 2007 and the date hereof, (a)
no event or condition, individually or in the aggregate, has had a Material Adverse Effect on AST,
and, to the Knowledge of AST, there is no impending event or condition that would have a Material
Adverse Effect on AST, and (b) AST has not:
(1) Suffered any damage, destruction, or loss of physical property (whether or not covered by
insurance) that could reasonably be expected to have a Material Adverse Effect;
(2) Created, incurred, or assumed any liability other than in the ordinary course of business,
consistent with past practices, or guaranteed any liability;
(3) Instituted, settled, or agreed to settle any litigation, action, or proceeding before any
Governmental Authority relating to AST or its business, affairs, properties, or assets;
(4) (A) Breached any Material Contract, Real Property Lease, Personal Property Lease,
Employment Arrangement, or AST License; (B) other than cancellations or written threats of
cancellations of any Contract with a Client in the ordinary course of business, received any
written cancellation, or any written threat of cancellation, of any Material Contract, Real
Property Lease, Personal Property Lease, or AST License; (C) other than amendments or terminations
of any Contract with a Client in the ordinary course of business, made or permitted any amendment
or the termination of any Material Contract, Real Property Lease, Personal Property Lease, or AST
License; or (D) received any written cancellation, or written threat of cancellation of, or made or
permitted any amendment or the termination of, any AST License or Employment Arrangement;
(5) Made any change in its accounting principles, policies, practices, or related
methodologies, except in accordance with GAAP, or any change to its methods of reporting material
items of income and deductions for federal income tax purposes, except as required by changes in
Applicable Law;
(6) Received any notice from any Governmental Authority, lessor of any Leased Real Property,
or any insurance company that has issued a policy with respect to any portion of the Leased Real
Property of material zoning, building, fire, or health code violations with respect to the Leased
Real Property, or material violations pertaining to the use and occupancy of the Leased Real
Property;
(7) Transferred or granted any rights or licenses under, or entered into any settlement
regarding the breach or infringement of, any Intellectual Property owned by AST, or
18
modified any material existing right with respect thereto;
(8) Entered into any transaction or transactions (A) not in the ordinary course of business or
relating to the automatic extension or renewal of a Material Contract without any action on the
part of AST, which transaction or transactions have a value individually in excess of $50,000 or in
excess of $100,000 in the aggregate; or (B) in the ordinary course of business with any Client or
joint venture or alliance partner, which transaction or transactions involve fees or payments by or
to AST (excluding in the case of payments to AST, payments by Clients) in a continuous twelve-month
period individually in excess of $250,000 or in excess of $500,000 in the aggregate;
(9) Made any capital expenditure in excess of $250,000;
(10) Sold, transferred, leased to others, or otherwise disposed of, or agreed to sell,
transfer, lease, or otherwise dispose of, any portion of any assets having a fair market value at
the time of sale, transfer, or disposition of $50,000 or more in the aggregate, or forgiven,
cancelled, or compromised, or agreed to forgive, cancel, or compromise, any debts or claims
involving $50,000 individually or in the aggregate, or waived or released any material right, other
than in the ordinary course of business, consistent with past practice;
(11) Had any resignation or termination of employment, or received any written notice of any
threatened or impending resignation or termination of employment, of any of its officers, senior
members of management, or executive-level consultants;
(12) Made any prepayment of any accounts payable, delayed or extended payment or payment terms
of any trade payables (whether by contract, amendment, act, deal, or course of dealing) or paid
other obligations, other than in the ordinary course of business, consistent with past practice, or
made any other cash payment other than in the ordinary course of business; or
(13) Subjected to any Lien (other than Permitted Liens) the Leased Real Property or any other
property or asset of AST.
In addition, notwithstanding the foregoing, except in the ordinary course of business,
consistent with past practices, since August 6, 2007, AST has not made any change in the rate of
compensation, commission, bonus, or other direct or indirect remuneration payable, or paid or
orally promised to pay, conditionally or otherwise, any bonus, incentive, retention, or other
compensation, retirement, welfare, fringe, or severance benefit or vacation pay, or adopted or
increased any benefit under any insurance, pension, or other employee benefit plan, payment, or
arrangement made to or in respect of any of the officers, senior members of management, or
executive-level consultants set forth on Section 4.13(b) of the Seller Disclosure Schedule.
4.14 Ordinary Course of Business.
(a) Since the date of the Financial Statements, AST has operated its business in the normal,
usual, and customary manner in the ordinary and regular course of business, consistent with past
practice.
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(b) AST is not restricted from (1) competing with any Person in any respect, whether related
to the business of AST or otherwise, (2) carrying out the business of AST or otherwise providing
any Services, or (3) soliciting or accepting any Person to be a client of the business of AST.
4.15 Litigation and Compliance with Laws.
(a) Except as set forth in Section 4.15 of the Seller Disclosure Schedule, there are no
orders, writs, injunctions, decrees, or unsatisfied judgments, or actions, suits, claims,
proceedings, or investigations pending or, to the Knowledge of AST, threatened against (1) AST or
(2) any of AST’s current or former directors, officers, or employees and that relate to AST.
Section 4.15 of the Seller Disclosure Schedule sets forth a true and complete list of any such
actions, suits, claims, proceedings, or investigations for which AST is responsible to pay ongoing
costs and expenses.
(b) (1) AST is currently, and since February 10, 2006, has been, in full compliance with all
Applicable Laws. During the Original Trust Business Period, the Original Trust Business was
conducted by ASTT in full compliance with all Applicable Laws. For purposes of this Section
4.15(b)(1) as it relates to AST, the term “Applicable Law” does not relate to: (i) anti-money
laundering matters, such items being the subject of Section 4.15(b)(1)(C), (ii) matters regulated
by Office of Foreign Assets Control, such items being the subject of Section 4.15(b)(1)(D), (iii)
environmental matters, such items being the subject of Section 4.16, (iv) tax and ERISA matters,
such items being the subject of Section 4.19, (v) employee benefit matters, such items being the
subject of Section 4.21, and (vi) privacy matters, such items being the subject of Section 4.25.
(A) Neither AST nor, to the Knowledge of AST, any Person “associated” (as that term is
defined under the Advisers Act) with AST has, within five years prior to the date hereof, been
convicted of any crime or is or has been subject to any disqualification in each case that would
be the basis for denial, suspension, or revocation of registration of an investment adviser under
Section 203(e) or 206(4) of the Advisers Act or Rule 206(4)-4(b) thereunder or for
disqualification as an investment adviser for any investment company pursuant to Section 9 of the
Investment Company Act of 1940, as amended;
(B) Neither AST nor, to the Knowledge of AST, any Affiliate of AST is subject to (1) a
“statutory disqualification” as defined in Section 3(a)(39) of the Exchange Act or is subject to a
disqualification that would be a basis for censure, limitations on the activities, functions or
operations of, or suspension or revocation of registration as a broker-dealer, municipal
securities dealer, government securities broker, or government securities dealer under Section 15,
Section 15B, or Section 15C of the Exchange Act, or (2) a disqualification that would be the basis
for censure, denial, suspension, or revocation of a certificate as an investment adviser under
Section 203(e) of the Advisers Act, and, to the Knowledge of AST, there is no reasonable basis
for, or proceeding or investigation, whether formal or informal or whether preliminary or
otherwise, that is reasonably likely to result in, any such censure, denial, limitations,
suspension, or revocation;
(C) AST is currently operating, and since February 10, 2006,
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has been operating, in full compliance with, and during the Original Trust Business Period,
the Original Trust Business was operated by ASTT in full compliance with, all Applicable Laws
adopted in connection with Title III of the USA PATRIOT Act (Pub. L. No. 107-56), the Bank Secrecy
Act (31 U.S.C. Sections 5322 et seq.), and other applicable anti-money laundering requirements
(collectively, “AML Compliance Requirements”). AST has adopted written policies and procedures and
implemented appropriate internal controls (collectively, “Internal Controls”) meeting the
standards set forth in the AML Compliance Requirements, reasonably designed to mitigate the risks
that its operations or facilities may be used to support money laundering and/or terrorist
financing. AST’s Internal Controls include, as appropriate: (1) the filing of currency
transaction reports and suspicious activity reports; (2) the collection of customer identification
and other “know your customer” information and the exercise of other due diligence in identifying
customers; (3) the maintenance of customer due diligence and transaction records; (4) the
deployment of enhanced due diligence with respect to foreign correspondent accounts, private
banking accounts, and accounts of senior foreign political figures consistent with the
requirements of Section 312 of the USA PATRIOT Act; (5) obtaining certifications from foreign
banks with respect to no involvement of shell banks; (6) designating appropriate responsible AML
Compliance Requirements personnel; (7) ongoing training of employees; and (8) ongoing testing and
monitoring of customer accounts, along with an annual independent audit of the effectiveness of
AST’s Internal Controls. Neither AST nor ASTT (with respect to the Original Trust Business) has
received any adverse examination comment from any Governmental Authority or been cited for any
violation of an AML Compliance Requirement. To the Knowledge of AST, no Governmental Authority
intends to cite AST for a violation of any AML Compliance Requirement.
(D) AST is currently operating, and since February 10, 2006, has been operating, in full
compliance with, and during the Original Trust Business Period, the Original Trust Business was
operated by ASTT in full compliance with, the requirements of the Office of Foreign Assets Control
(“OFAC Compliance Requirements”), as further described on the U.S. Treasury Department OFAC
Division website, www. Xxxxx.xxx/xxxx. AST has adopted Internal Controls reasonably designed to
ensure that it is not engaging in transactions with, and/or providing services to, Persons
prohibited on OFAC’s “Specially Designated Nationals/Blocked Persons” list or to countries or
territories sanctioned by OFAC. Any self-reporting made by AST to a Governmental Authority since
February 10, 2006 with respect to violations of the OFAC Compliance Requirements and any
self-reporting made by ASTT to a Governmental Authority during the Original Trust Business Period
relating to the Original Trust Business is summarized in Section 4.15(b)(1)(D) of the Seller
Disclosure Schedule. To the Knowledge of AST, no Governmental Authority intends to cite AST for a
violation of any OFAC Compliance Requirement.
(2) Except for AST’s registration as a trust company with the Delaware Bank Commissioner and
the Arizona Banking Department, and except for the qualifications set forth in Section 4.1 of the
Seller Disclosure Schedule, AST is not required to be licensed, registered, and/or qualified with
any Governmental Authority.
(c) Section 4.15(c) of the Seller Disclosure Schedule sets forth a true and complete list,
and the timing for submission, of all reports required to be submitted by AST to each of the
Delaware Bank Commissioner and the Arizona Banking Department.
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(d) Section 4.15(d) of the Seller Disclosure Schedule sets forth a true and complete list of
each unsatisfied judgment, order, writ, injunction, decree, demand, action, or assessment issued
by any court or any federal, state, municipal, or other Governmental Authority relating to AST or
any aspect of its business, affairs, properties, or assets. AST is not in default with respect to
any such judgment, order, writ, injunction, decree, demand, or assessment. Neither AST nor, to
the Knowledge of AST, any director, officer, or employee of AST, is subject to any
cease-and-desist order or other order, directive, or enforcement action issued by, or is a party
to any written agreement, consent agreement, or memorandum of understanding with, or has been
ordered to pay any civil monetary penalty by, any Governmental Authority, nor has AST or, to the
Knowledge of AST, any director, officer, or employee of AST, been advised that any Governmental
Authority is considering issuing, initiating, or ordering any such action.
(e) AST is not charged nor, to the Knowledge of AST, threatened with or under investigation
by a Governmental Agency with respect to any violation of any Applicable Law. There is no
unresolved violation, criticism, or exception asserted by any Governmental Authority to AST with
respect to any report or statement relating to any examination, investigation, inspection, or
audit of AST.
4.16 Environmental Matters.
(a) AST is currently operating, and since February 10, 2006, has operated, its business at
the properties identified in Section 4.7 of the Seller Disclosure Schedule (“Leased Real
Property”) in material compliance with all applicable federal, state, and local statutes,
ordinances, regulations, and rules enacted or promulgated to protect air, water, land, and human
health and welfare (including, without limitation, amendments thereto (collectively,
“Environmental Laws”), and with the terms of all leases addressing Environmental Laws. ASTT
operated the Original Trust Business at the Leased Real Property during the Original Trust Period
in material compliance with all applicable Environmental Laws and with the terms of all leases
addressing Environmental Laws.
(b) AST is not subject to any liability, penalty, or expense (including legal fees) by virtue
of:
(1) Any violation of any Environmental Law;
(2) Any activity conducted on or with respect to any property owned or leased by AST;
(3) Any environmental condition existing on or with respect to any property owned or leased by
AST, in each case whether or not AST permitted or participated in that act or omission;
(4) Any off-site transportation, storage, treatment, or disposal of any hazardous substance or
waste; or
(5) The presence of polychlorinated biphenyls, asbestos-containing material, urea formaldehyde
insulation, or storage tanks at any Leased Real Property.
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(c) To the Knowledge of AST, none of the Leased Real Property is listed or proposed for
listing on the National Priorities List Pursuant to the Comprehensive Environmental Response
Compensation and Liability Act of 1980, as amended, or any state or local list of sites requiring
investigation or cleanup.
(d) AST has furnished WT copies of all environmental reports, studies, or audits in its
possession conducted on its behalf relating to the Leased Real Property.
(e) AST has not received any communication from a Governmental Authority requesting
information relating to any environmental condition on the Leased Real Property.
4.17 No Broker Dealer; No Investment Adviser.
(a) AST is not a “broker” or “dealer” (in each case, as defined in the Exchange Act), and is
not required to register or be registered as a “broker” or “dealer” (1) with the SEC pursuant to
the Exchange Act or any other applicable federal securities law, (2) with any self-regulatory
organization (including, without limitation, FINRA) pursuant to its membership and registration
rules, or otherwise, or (3) with any state pursuant to any applicable state securities or
insurance law in order to conduct its business as currently conducted.
(b) AST is not an “investment adviser” (as defined in the Advisers Act), and is not required
to register or be registered as an “investment adviser” (1) with the SEC pursuant to the Advisers
Act or any other applicable federal securities law, or (2) with any state pursuant to any
applicable state securities law in order to conduct its business as currently conducted.
4.18 Insurance Policies.
(a) Section 4.18 of the Seller Disclosure Schedule set forth a true and complete list of the
liability, property and casualty, workers’ compensation, directors’ and officers’ liability, key
man, surety bonds, and other insurance contracts (“Policies”) that insure AST’s business or the
directors, officers, or employees of AST.
(b) Except as set forth in Section 4.18(b)(1) of the Seller Disclosure Schedule, since
February 10, 2006, AST has not made any insurance claim under any Policies (or other insurance
contracts or bonds in effect at the time). Except as set forth in Section 4.18(b)(2) on the
Seller Disclosure Schedule, since January 8, 2004, ASTT has not made any insurance claim under its
insurance contracts or bonds relating to the Original Trust Business.
(c) Each Policy is valid and binding, in full force and effect, and enforceable according to
its terms and no material default has been committed under any of the Policies. All premiums due
and payable under the Policies have been timely paid, the policyholders are otherwise in material
compliance with the terms and conditions of those Policies, and the policyholders have no reason
to believe that any insurer would not renew a Policy on substantially the same terms and
conditions (or would not do so if it knew of an event known to the Knowledge of AST but not to the
insurer). To AST’s Knowledge, there is no loss or circumstance that could give rise to a loss or
a claim for a loss under any of the Policies.
4.19 Tax and ERISA Matters.
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(a) (1) AST has, since February 10, 2006, (A) paid or caused to be paid all Taxes (other than
current Taxes the liability for which is adequately provided for in the Financial Statements)
required to be paid by it and (B) in accordance with Applicable Law, duly and timely filed all Tax
Returns required to be filed by it. All such Tax Returns correctly and accurately set forth the
amount of any Taxes relating to the applicable period. No taxing authority is now asserting or, to
the Knowledge of AST, threatening to assert against AST any deficiency or claim for additional
Taxes.
(2) With respect to the Original Trust Business, ASTT has, since January 8, 2004, (A) paid or
caused to be paid all Taxes required to be paid by it and (B) in accordance with Applicable Law,
duly and timely filed all Tax Returns required to be filed by it. All such Tax Returns correctly
and accurately set forth the amount of any Taxes relating to the applicable period. No taxing
authority is now asserting or, to the Knowledge of AST, threatening to assert against ASTT any
deficiency or claim for additional Taxes with respect to the Original Trust Business.
(b) No Seller is a “foreign person” within the meaning of Code Section 1445.
(c) There are no Liens for Taxes upon any of the properties or assets of AST, other than with
respect to Taxes not yet due and payable.
(d) No examination or audit of any Tax Return relating to any Taxes of AST since February 10,
2006 (or of ASTT since January 8, 2004, with respect to the Original Trust Business) or with
respect to any Taxes due from or with respect to AST since February 10, 2006 (or from or with
respect to ASTT since January 8, 2004, with respect to the Original Trust Business) by any taxing
authority is currently in progress or, to the Knowledge of AST, threatened or contemplated. There
are no outstanding agreements, waivers, or arrangements extending the statutory period of
limitation applicable to any claim for, or the period for the collection or assessment of, Taxes
due from or with respect to AST since February 10, 2006 (or from or with respect to ASTT since
January 8, 2004, with respect to the Original Trust Business), for any taxable period. No power
of attorney granted by or with respect to AST (or ASTT, with respect to the Original Trust
Business) relating to Taxes is currently in force. No closing agreement pursuant to Section 7121
of the Code (or any similar provision of any state, local, or foreign law) has been entered into
by or with respect to AST (or ASTT, with respect to the Original Trust Business).
(e) No Governmental Authority in any jurisdiction in which AST does not, or ASTT did not,
file or join in the filing of a Tax Return has, since February 10, 2006, in the case of AST, and
since January 8, 2004, in the case of ASTT, made a claim that either AST or ASTT (with respect to
the Original Trust Business) is required to file or join in the filing of a Tax Return for that
jurisdiction.
(f) AST (1) is not and has never been a member of an affiliated group of corporations filing
a consolidated federal income Tax Return, and (2) does not have any liability for the Taxes of any
Person under Treasury Regulations Section 1.1502-6 (or any similar provision of any state, local,
or foreign law), as a transferee or successor, by contract or otherwise.
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(g) All Taxes required to be withheld, collected, or deposited by or with respect to AST since
February 10, 2006 (or by ASTT with respect to the Original Trust Business since January 8, 2004)
have been timely withheld, collected, or deposited, as the case may be and, to the extent required,
have been duly and timely remitted to the relevant taxing authority.
(h) AST is not a party to, bound by, or has any obligation under any tax allocation or
sharing agreement.
(i) AST has never been either a “distributing corporation” or a “controlled corporation” in a
distribution in which the parties to such distribution treated the distribution as one to which
Section 355 of the Code is applicable.
(j) AST has never engaged in any transaction that has given or will give rise to (1) a
registration obligation with respect to any Person under Section 6111 of the Code or the
regulations thereunder, (2) a list maintenance obligation with respect to any Person under Section
6112 of the Code or the regulations thereunder, (3) a disclosure obligation as a “reportable
transaction” under Section 6011 of the Code and the regulations thereunder, or (4) any similar
obligation under any predecessor or successor law or regulation or comparable provision of state
or local law.
(k) AST is currently (except as may result from the transfer of the Stock pursuant to this
Agreement, which may have the effect of terminating AST’s “S” corporation status as of the close
of the day preceding the Closing Date), and since January 4, 2007, has been, properly classified
and qualified as an “S” corporation under the Code and any applicable state, local, or foreign
laws. AST has not been and is not currently liable for any Taxes imposed under Section 1375 of
the Code (or similar provisions under state, local, or foreign laws).
(l) As of the date of this Agreement, the states in which AST’s current income or operations
subject it to state income or franchise Tax are Arizona, Colorado, Connecticut, Delaware,
Illinois, Massachusetts, Minnesota, New York, Ohio, Oregon, Rhode Island, and Vermont.
(m) (1) With respect to each “employee benefit plan” (as defined in Section 3(3) of ERISA) or
retirement account or other plan that (i) is or elects to be subject to Title I of ERISA; (ii) is
or elects to be subject to Section 4975 of the Code; (iii) is a person or entity the assets of
which are treated as including the assets of any plan described in (i) or (ii) or both by
application of Section 3(42) of ERISA and 29 C.F.R. § 2510.3-101; or (iv) is a plan or entity that
is subject to any federal, state, or local law that is substantially similar to Section 406 or
ERISA or Section 4975 of the Code (a “Similar Law”) (each such plan, entity, or other person
described in (i)-(iv) of clause (A) is referred to as an “ERISA Plan” for purposes of this Section
4.19(m)) as to which AST provides or has provided services, AST has not (A) engaged or
participated in or caused an ERISA Plan to engage or participate in any transaction that it knows
or should know constitutes a transaction prohibited by Section 406 of ERISA, Section 4975 of the
Code, or a Similar Law for which no exemption is available, (B) been assessed the excise taxes
described in Section 4975(a) or (b) of the Code or has reason to believe that such excise tax may
be assessed, (C) filed under the “Voluntary Fiduciary Correction Program of the
25
Department of Labor” described in 71 Fed. Reg. 20,261 (April 19, 2006) or any predecessor to
that program, or (D) violated (to the Knowledge of AST), been found by a court of competent
jurisdiction to have violated, or been charged by any state or federal agency of violating any
fiduciary obligation to an ERISA Plan. AST has adopted and implemented and has in place
compliance procedures designed to preclude it, and the officers, directors, and employees of AST,
from engaging in any “prohibited transaction” within the meaning of Section 406 of ERISA or
Section 4975(c) of the Code (a “Prohibited Transaction”).
(2) If AST provides or has at any time provided services as a fiduciary to an ERISA Plan, it
is and has at all such times always been a “Qualified Professional Asset Manager” (“QPAM”) as
defined in U.S. Department of Labor Prohibited Transaction Exemption (“PTE”) 84-14, Part V(a), and
is not and has not been prevented from serving as a QPAM by application of XXX 00-00, Xxxx X(x).
AST is able to serve in a capacity described in Section 411(a)(1), (2) or (3) of ERISA by virtue
of Section 411 of ERISA.
(3) AST has complied with the applicable requirements of ERISA, the Code, and Similar Law
with respect to each Client of AST that is an ERISA Plan.
4.20 Certain Transactions. Except (a) for participation in the employee benefit plans
set forth in Section 4.21(d) of the Seller Disclosure Schedule, and (b) as contemplated by this
Agreement, none of any Seller, Xxxxxxxxx, ASTT, or any director, officer, or employee of AST or
ASTT (each, a “Related Party”), is, directly or indirectly, a party to any transaction with AST.
For purposes of this Section 4.20, the term “transaction” includes, without limitation, any
contract, agreement, or other arrangement providing for the furnishing of services to or by or
otherwise requiring payments to or from AST or any Related Party (or any other Person or other
entity in which any Related Party has an interest or is an officer, director, stockholder, trustee,
member, or partner). Without limiting the foregoing, except as set forth in Section 4.8(b) of the
Seller Disclosure Schedule, AST does not receive and is not entitled to any referral or other fee
for recommending an investment adviser, insurer, accountant, broker-dealer, trustee, or other
service provider to any of its clients.
4.21 Employee Benefit Plans.
(a) Each AST Employee Plan (as that term is defined in Section 4.21(d) below) has at all
times complied with all Applicable Laws, including the Code and ERISA and, in the case of any AST
Employee Plan that is a multiple employer welfare arrangement, applicable state insurance and
other laws. Except as set forth below, each AST Employee Plan that is maintained as of the
Closing Date and that is intended to be qualified under Section 401(a) of the Code (each, an “AST
Qualified Plan”) is, in its current form, subject to a determination letter issued by the Internal
Revenue Service with respect to its tax-qualified status and those qualification requirements of
Section 401(a) of the Code that are, under Internal Revenue Service rules, covered by a basic
determination letter (or, in the case of a plan based upon a master and prototype or volume
submitter form, the sponsor of such form has received a current advisory opinion as to the form
upon which AST is entitled to rely under applicable Internal Revenue Service procedures). Section
4.21(a) of the Seller Disclosure Schedule sets forth a true and complete list of each amendment to
each AST Qualified Plan adopted on or after the date of such determination letter or advisory
opinion, as applicable. With respect to any
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“disqualifying provision,” as defined in Treas. Reg. Section 1.401(b)-1(b), contained in any
such amendment, the remedial amendment period applicable to such disqualifying provision under
Section 401(b) of the Code has not expired. No event or omission has occurred that could
reasonably be expected to cause any such AST Qualified Plan not to be so qualified or for any
trust thereunder not to be tax-exempt under Section 501(a) of the Code.
(b) AST does not have, and no ERISA Affiliate has, and within the past ten years neither AST
nor any ERISA Affiliate has had, an obligation to contribute to a multiemployer plan (as defined
in Section 4001(a)(3) of ERISA), or any other Plan subject to Section 302 or Title IV of ERISA or
Section 412 of the Code. AST does not have any obligation to provide health care or other
non-pension benefits to any of its former employees, directors, or other service providers (other
than “continuation coverage” under the Consolidated Omnibus Reconciliation Act of 1985 required to
be provided by Part 6 of Subtitle B of Title I of ERISA, Section 4980B of the Code, or similar
state law (together, “COBRA”)), nor are any such benefits provided for in any AST Employee Plan.
(c) With respect to each AST Employee Plan, there has been no transaction prohibited by
Section 406 of ERISA or Section 4975 of the Code or any breach of fiduciary responsibility under
Title I of ERISA that could reasonably be expected to result in any tax, penalty, or liability,
direct or indirect, of AST. There are no actions, suits, or claims (other than routine claims for
benefits) pending or, to the Knowledge of AST, threatened with respect to any AST Employee Plan.
(d) The terms “Employee Plan,” “employee plan,” or “Plan” mean (1) any “employee benefit
plan” as defined in Section 3(3) of ERISA, whether or not subject to ERISA, (2) any
profit-sharing, deferred compensation, bonus, stock option, stock purchase, restricted stock,
equity compensation, change in control, pension, retainer, consulting, retirement, severance,
welfare, or incentive plan, agreement, or arrangement, (3) any plan, agreement, or arrangement
providing for fringe benefits or perquisites to employees, officers, directors, or agents,
including but not limited to benefits relating to automobiles, clubs, vacation, child care,
parenting, sabbatical, sick, or other paid or unpaid leave, medical, dental, hospitalization, life
insurance, disability, accident, and other types of insurance, and (4) any Employment Arrangement.
Section 4.21(d) of the Seller Disclosure Schedule sets forth a true and complete list of each
Employee Plan that AST now maintains, contributes to, or has any obligation to contribute to,
provides benefits under, or has any liability under, whether actual or contingent, (each, an “AST
Employee Plan”). AST has delivered to WT, to the extent applicable, true and complete copies of
all plan documents, summary plan descriptions, and summaries of material modifications thereto,
recordkeeping and other administrative service agreements, group insurance and annuity contracts,
trust agreements, and the most recent Internal Revenue Service determination letter for the AST
Employee Plans, including all amendments thereto, complete copies of the three most recent Forms
5500 filed with respect to that AST Employee Plan, and the three most recent actuarial reports
with respect to that AST Employee Plan.
(e) There is no matter pending or, to the Knowledge of AST, threatened, with respect to any
AST Employee Plan before the Internal Revenue Service, the Pension Benefit Guaranty Corporation,
the U.S. Department of Labor, or any other Governmental Authority.
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(f) AST has made full and timely payment of all amounts that are required of it under the
terms of each AST Employee Plan and any related trust or collective bargaining agreement or that
are otherwise required by law to be paid as a contribution to or with respect to each such AST
Employee Plan with respect to all periods through the Closing. No AST Employee Plan is subject to
Section 412 of the Code or to Section 302 or Title IV of ERISA.
(g) There has been no act or omission by AST that has given rise to or may reasonably be
expected to give rise to fines, penalties, taxes, or related charges under Section 4071 of ERISA
or Chapter 43 of the Code or the imposition of a lien pursuant to Sections 401(a)(29) or 412(n) of
the Code or pursuant to ERISA.
(h) AST is not, and has not at any time in the past seven years been, required to be
aggregated with any entity under Sections 414(b), (c), (m), or (o) of the Code.
(i) There are no claims (other than routine claims for benefits) pending or, to the Knowledge
of AST, threatened with respect to any AST Employee Plan and no facts exist that could give rise
to any such claim.
(j) Each AST Employee Plan that, on or after January 1, 2005, is or has been in any part
subject to the requirements of Section 409A of the Code, has been operated in compliance with the
applicable requirements of Section 409A, or in a manner that would cause such Employee Plan to be
exempt from the requirements of Section 409A.
(k) No Plan is or was at any time a multiple employer plan, as described in Code Section
413(c) or Sections 4063 or 4064 of ERISA, or a multiple employer welfare arrangement, as that term
is defined in ERISA Section 3(40), and neither AST nor any ERISA Affiliate has ever contributed to
or had an obligation to contribute to any such Plan.
(l) The consummation of the Transactions contemplated by the Agreement alone, or in
combination with a termination in connection with such Transactions of any employee, officer,
director, stockholder, or other service provider of AST (whether current, former, or retired) or
their beneficiaries, will not give rise to any liability under any Plan, including, without
limitation, liability for severance pay, unemployment compensation, termination pay, or withdrawal
liability, or accelerate the time of payment or vesting or increase the amount of compensation or
benefits due to any employee, officer, director, stockholder, or other service provider of AST
(whether current, former, or retired) or their respective beneficiaries.
4.22 Intellectual Property.
(a) AST owns or has the valid and enforceable right to use pursuant to valid licenses,
sublicenses, agreements, or permissions, all items of Intellectual Property necessary in the
operation of AST’s business as currently conducted.
(b) AST has not received any written notice alleging that AST has infringed upon any
Intellectual Property rights of third parties. AST has not infringed upon any Intellectual
Property rights of third parties, and, to the Knowledge of AST, no third party has infringed upon
any Intellectual Property rights of AST.
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(c) Section 4.22(c) of the Seller Disclosure Schedule sets forth a true and complete list of
each issued patent and each registered trademark, service xxxx, domain name, and copyright owned
by AST (“Registered Intellectual Property”) and identifies each pending patent application or
other application for registration that has been made with respect to any such Registered
Intellectual Property owned by AST. With respect to each item of such Registered Intellectual
Property owned by AST:
(1) AST possesses all right, title, and interest in and to the item, free and clear of any
Lien; and
(2) No proceeding is pending or, to the Knowledge of AST, threatened that challenges the
legality, validity, enforceability, use, or ownership of the item.
(d) Section 4.22(d) of the Seller Disclosure Schedule sets forth a true and complete list of
each item of Intellectual Property that is not owned by AST and that AST uses pursuant to a
license, sublicense, agreement, or with permission (other than “shrink wrapped” or other generally
available “off the shelf” software products), such Schedule listing the license, sublicense,
agreement, or permission and any related maintenance agreement (the “AST Licenses”). AST has
delivered to WT true and correct copies of all AST Licenses and any related maintenance agreement,
each as amended to date. With respect to each such item of Intellectual Property identified in
Section 4.22(d) of the Seller Disclosure Schedule: (1) the license, sublicense, agreement, or
permission covering the item is in full force and effect; (2) AST has not received written notice
regarding any actual or alleged breach, violation, or failure to comply with any such license,
sublicense, agreement, or permission and AST is in compliance with any such license, sublicense,
agreement, or permission and any related maintenance agreement; (3) to the Knowledge of AST, no
breach, violation, or failure to comply under any such license, sublicense, agreement, or
permission by the other party or parties thereto exists; (4) no proceeding is pending or, to the
Knowledge of AST, threatened which challenges the legality, validity, or enforceability of the
underlying item of Intellectual Property; (5) AST has not granted any sublicense or similar right
with respect to the license, sublicense, agreement, or permission; and (6) except as set forth in
Section 4.22(d) of the Seller Disclosure Schedule, there are no maintenance fees, “right to use”
fees, license fees, taxes, annuity fees, or other costs with respect to any license, sublicense,
agreement, or permission covering the Intellectual Property which would obligate AST to make
payments in excess of $50,000 in any fiscal year.
(e) To the Knowledge of AST, there are no defects or Viruses in any material proprietary
software owned by AST that prevent or would prevent such software from performing in all material
respects the tasks and functions that it is intended to perform.
(f) There are no outstanding or unpaid (whether or not billed) “right to use” or similar fees
for any Intellectual Property that AST owns, has a right to use, or uses.
4.23 Certain Payments. Neither AST nor, to the Knowledge of AST, any of its
directors, officers, employees, agents, or representatives, or any other Person associated with or
acting for or on behalf of AST, has directly or indirectly made a contribution, bribe, rebate,
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payoff, influence payment, kickback, or other payment to any Person, private or public,
regardless of form, whether in money, property, or services, in violation of Applicable Law.
4.24 Brokerage. AST has not incurred any obligation for a brokerage commission or
finders’ fee in connection with the Transactions.
4.25 Privacy. AST is currently operating, and since February 10, 2006 has operated,
in compliance with all applicable U.S. federal and state privacy laws, including, without
limitation, Title V of the Xxxxx-Xxxxx-Xxxxxx Act, the Fair Credit Reporting Act, and any and all
applicable regulations implementing either Act (collectively, the “Privacy Laws”). During the
Original Trust Business Period, the Original Trust Business was conducted by ASTT in compliance
with all Privacy Laws.
4.26 No Known Regulatory Delays. There is no reason to believe that AST will be unable
to promptly obtain (a) all Governmental Approvals that are necessary to complete the Transactions
from all Governmental Authorities, and (b) all Consents that are required under this Agreement to
be obtained by AST from Clients and other third parties, in each case, without undue delay,
expense, or restriction.
4.27 Corporate Records. The stock record books and minute books of AST covering the
period from February 10, 2006 until the date of this Agreement, all of which have been furnished or
made available to WT, are complete and accurate in all material respects and have been maintained
in accordance with practices that are customary for similar businesses. All minutes books
accurately reflect all material actions taken between February 10, 2006 and the date of this
Agreement by AST’s board of directors, committees, and stockholders.
4.28 Offices. Section 4.28 of the Seller Disclosure Schedule sets forth a true and
complete list of the headquarters location of AST and the location of each other office maintained
and operated by AST. Except as stated in Section 4.28 of the Seller Disclosure Schedule, AST does
not maintain any other office or conduct business at any other location, and AST has not applied
for or received permission to open any additional offices or operate at any other location.
4.29 Safe Deposit Boxes and Bank Accounts. Section 4.29 of the Seller Disclosure
Schedule sets forth a true and complete list of the names and locations of all banks, trust
companies, savings and loan associations, and other financial institutions at which AST maintains
safe deposit boxes, lock boxes, or bank accounts and the names of all Persons authorized to have
access to such boxes and accounts.
4.30 Power of Attorney. AST has not granted any Person a power of attorney or similar
authorization that is currently in effect or outstanding.
4.31 Indemnification. Except as set forth in Section 4.31 of the Seller Disclosure
Schedule, other than pursuant to its certificate of incorporation or bylaws, AST is not a party to
any indemnification agreement with any of its present or former managers, officers, directors,
employees, agents or other Persons who serve or served in any other capacity with AST or any other
enterprise at the request of AST (each, a “Covered Person”), and there are no claims for
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which any Covered Person would be entitled to indemnification by AST if such provisions were
deemed in effect.
4.32 Disclosure. No representation or warranty of Sellers or Xxxxxxxxx in this
Agreement and no statement of Sellers or Xxxxxxxxx in the Seller Disclosure Schedule contains any
untrue statement of a material fact or omits to state a material fact necessary in order to make
the statements contained herein or therein, in light of the circumstances in which they were made,
not misleading.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF SELLERS AND XXXXXXXXX TO XX
Xxxxxxx and Xxxxxxxxx jointly and severally represent and warrant to WT as follows, subject
to the Seller Disclosure Schedule:
5.1 Authority.
(a) Each Seller and Xxxxxxxxx has duly executed and delivered this Agreement and has (or, by
the time of execution and delivery, will have) duly executed and delivered each other Transaction
Document to be executed and delivered by him, her, or it under this Agreement.
(b) This Agreement and each other Transaction Document to which each Seller and/or Xxxxxxxxx
is a party represents or, when executed and delivered, will represent, the valid and legally
binding obligation of such Person, enforceable against such Person in accordance with its terms,
except as may be limited by (1) bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance, fraudulent transfer, or similar laws now or hereafter relating to creditors’ rights
generally or (2) general principles of equity, whether asserted in a proceeding in equity or at
law.
5.2 Stock. Each Seller (a) owns of record all of the Stock set forth in Section
4.4(a) of the Seller Disclosure Schedule opposite such Seller’s name, free and clear of any Lien,
and (b) has all requisite power and full legal authority to sell to WT all of the Stock owned by
such Seller, free and clear of all Liens. Sellers are the only stockholders of AST and ASTT.
5.3 No Conflicts. Each Seller’s and Karfunkel’s execution, delivery, and performance
of this Agreement and of each other Transaction Document to be delivered by it under this Agreement
and the consummation of the Transactions, will not:
(a) Conflict with, or result in a breach of, any provision of a contract, agreement, or
undertaking to which such Seller or Xxxxxxxxx is a party or by which it or any of its properties
or assets is bound;
(b) Give rise to a right of termination, cancellation, or acceleration of an
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obligation or loss of a benefit affecting, or result in the imposition of any Liens on, the
Stock or any of such Seller’s or Karfunkel’s properties or assets; or
(c) Conflict with or violate Applicable Law.
5.4 Consents; Governmental Approvals. Except as set forth in Section 4.3 of the
Seller Disclosure Schedule, no Governmental Approval or approval, consent, or waiver of any other
Person is required in connection with:
(a) Any Seller’s or Karfunkel’s executing and delivering this Agreement and each other
Transaction Document to be executed and delivered by him, her, or it under this Agreement;
(b) Any Seller’s or Karfunkel’s performing his, her, or its obligations under this Agreement
and each other Transaction Document to be executed and delivered by any Seller or Xxxxxxxxx under
this Agreement; and
(c) The consummation by any Seller or Xxxxxxxxx of the Transactions to which he, she, or it
is a party.
5.5 Brokerage. No Seller or Xxxxxxxxx has incurred or will incur any liability for a
fee or commission to a broker, finder, investment banker, or other intermediary in connection with
the Transactions.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF WT TO SELLERS AND XXXXXXXXX
XX represents and warrants to Sellers and Xxxxxxxxx as follows:
6.1 Organization. WT is a savings bank duly organized, validly existing, and in good
standing under federal law.
6.2 Authority. WT has all requisite power and authority to (a) own or use the
properties and assets that WT purports to own or use and to and conduct its business and (b)
execute, deliver, and perform this Agreement and the other Transaction Documents to be executed,
delivered, and performed by it in connection with this Agreement and the Transactions. This
Agreement and each other Transaction Document to be executed, delivered, and performed by WT in
connection with the Transactions have been duly and validly approved by all necessary corporate
action. This Agreement and each other Transaction Document to which WT is a party represents, or
when executed and delivered will represent, the valid and legally binding obligation of WT,
enforceable against it in accordance with its terms, except as may be limited by (1) bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer, or similar laws
now or hereafter in effect affecting creditors’ rights generally or (2) general principles of
equity, whether asserted in a proceeding in equity or at law.
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6.3 Governmental Filings; Non-Contravention. Other than the filings and/or notices
set forth in Schedule 6.3 (including those required to be made with the Federal Reserve Bank of
Philadelphia, the Federal Deposit Insurance Corporation, the Office of Thrift Supervision, the
Delaware Banking Commissioner, and the Arizona Banking Department), no notices, reports,
applications, or other filings are required to be made by WT with, nor are any Governmental
Approvals required to be obtained by it from, any Governmental Authority in connection with the
execution and delivery of this Agreement and the other Transaction Documents, and the consummation
by WT of the Transactions. Subject to the making or obtaining of all filings, notices,
applications, licenses, consents, registrations, approvals, permits, or authorizations with, or of
any relevant Governmental Authority with respect to the Transactions and the other Transaction
Documents as set forth in Schedule 6.3, the execution, delivery, and performance of this Agreement
and each other Transaction Document to be executed, delivered, and performed by WT in connection
with the Transactions do not and will not: (a) conflict with or violate any provision of WT’s
charter or bylaws; (b) violate, conflict with, or result in a default under any contract or
obligation to which WT is a party or by which that Person’s assets are bound; (c) conflict with,
violate, result in a violation of, or constitute a default under, any law, regulation, or rule, or
any order of or restriction imposed by any court or other Governmental Authority on WT or any of
its properties; and (d) except with respect to notices to be filed with the Office of Thrift
Supervision and the Federal Deposit Insurance Corporate and a post-Effective Time notice to be
filed or caused to be filed by WT with the Federal Reserve Bank of Philadelphia, require WT to
obtain any approval, consent, or waiver of, or make any filing with, any Governmental Authority.
6.4 Litigation. Except as set forth on Schedule 6.4, there are no orders, writs,
injunctions, decrees, or unsatisfied judgments, and no actions, claims, suits, proceedings, or
investigations pending or, to WT’s Knowledge, threatened against WT that, if adversely determined,
might call into question the validity or hinder or delay the enforceability or performance of this
Agreement or any other Transaction Document or have a Material Adverse Effect on WT or its assets
or properties, taken as a whole.
6.5 Investment Representations.
(a) WT will acquire the Stock under the terms of this Agreement for its own account for
investment and not with a view to or for sale in connection with any distribution thereof or with
any present intention of selling or distributing all or any part thereof. WT acknowledges that the
Stock has not been registered under the Securities Act or the securities laws of any state or
other jurisdiction, and cannot be disposed of unless registered under the Securities Act and any
applicable state laws or an exemption from that registration is available.
(b) WT is sufficiently knowledgeable and experienced in making investments of this type as to
be able to evaluate the risks and merits of its investment in the Stock, and is able to bear the
economic risk of its investment in AST. WT acknowledges that the Stock is illiquid, that no
market for the Stock exists, and that none is contemplated to be created.
(c) WT is an “accredited investor” within the meaning of Rule 501(a) under the Securities
Act.
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6.6 No Known Regulatory Delays. WT has no Knowledge or reason to believe that WT will be
unable to obtain (a) all Governmental Approvals from all Governmental Authorities that are
necessary to complete the Transactions, and (b) all approvals, consents, and waivers from all
other Persons that are required under this Agreement to be obtained by WT, in each case without
undue delay, expense, or restriction.
6.7 Brokerage. WT has not incurred any obligation for a brokerage commission or
finders’ fee in connection with the Transactions.
6.8 Availability of Funds. WT has cash available or has existing borrowing facilities
which together are sufficient to enable it to consummate the Transactions.
ARTICLE 7
COVENANTS OF SELLERS AND AST
7.1 Conduct of Business. Until Closing, except as expressly set forth in this
Agreement or unless WT consents in writing (with such consent not to be unreasonably withheld or
delayed), AST will, and the Sellers jointly and severally shall cause AST to:
(a) Conduct the business of AST only in the ordinary course, in a manner consistent with past
practices, and in compliance with all Applicable Law;
(b) Except as set forth on Schedule 7.1(b), not (1) change or amend the governance or
organizational documents of AST or, except in the normal, usual, and customary manner in the
ordinary and regular course of business, consistent with past practice, any Material Contract,
Real Property Lease, Personal Property Lease, or AST License; or (2) breach any Material Contract,
Real Property Lease, Personal Property Lease, or AST License;
(c) Not (1) create, incur, assume, or guarantee any liability or Indebtedness, except as
incurred in the ordinary course of business, consistent with past practice, in an aggregate amount
not to exceed $50,000; or (2) loan or advance any funds;
(d) Not: (1) make any distribution or pay any dividend; or (2) except for amounts that do not
exceed $250,000, (A) acquire any property or asset; (B) make any capital expenditure; (C) sell,
transfer, lease, assign, or dispose of, or agree to sell, transfer, lease, assign, or dispose of,
any property, asset, or Client account; or (D) enter into any other transaction or transactions
not in the ordinary course of business;
(e) Not subject to any Lien, or permit any Lien to exist on, the Leased Real Property or any
other property or asset of AST, other than Permitted Liens;
(f) Not issue any (1) securities; (2) options, warrants, puts, calls, commitments,
agreements, contracts, preemptive, rights of first refusal, or other rights to purchase, issue, or
otherwise acquire any securities of AST; or (3) obligations or securities convertible into or
exchangeable for securities of AST;
(g) Maintain (including by renewal) the insurance policies listed in Section
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4.18 of the
Seller Disclosure Schedule;
(h) Not: (1) except for hiring an employee in the ordinary course of business, consistent
with past practices, enter into any employment arrangement; (2) enter into any written employment
agreement, other than an (A) an offer letter in a form used by AST in the ordinary course of
business, consistent with past practices, and which does not contain any terms providing for
incentive compensation or severance or (B) allowing employees to participate in the Incentive
Compensation Program described in Section 4.5(e) of the Seller Disclosure Schedule; (3) adopt or
implement any Employee Plan described in Section 4.21(d)(1)-(3), other than (A) in the ordinary
course of business, consistent with past practices, adoption or implementation of an Employee Plan
described in Section 4.21(d)(3) (except for medical, dental, hospitalization, life insurance,
disability, accident, or other type of insurance, which shall not be adopted or implemented) (B)
entry into a consulting agreement in the ordinary course of business, and (C) providing severance
to terminated employees as consideration for a release of claims, which severance amounts in no
instance shall exceed four weeks of the terminated employee’s salary, (4) except as expressly
contemplated by this Agreement, amend, modify, or terminate any employment agreement or AST
Employee Plan, other than in connection with terminating the employment of an employee in the
ordinary course of business, consistent with past practices; (5) except as expressly contemplated
by this Agreement, terminate or modify the terms of employment of any natural person set forth in
Schedule 7.1(h); or (6) except in the ordinary course of business, consistent with past practice,
make any change in the rate of compensation, commission, bonus, benefits, or other direct or
indirect remuneration payable to or in respect of AST’s employees or consultants;
(i) With respect to AST, the business of AST, or any of AST’s properties or assets, not (1)
release any claims or waive any rights, except in the ordinary course of business, consistent with
past practices; or (2) settle or compromise any litigation, action, proceeding, or claim involving
any liability for money damages or any restrictions upon any of its operations or that may be
precedential with respect to other litigations, actions, proceedings, or claims that may involve
such damages or restrictions;
(j) Not change accounting principles, policies, practices, or related methodologies, except
as required by GAAP, or change any of its methods of reporting income and deductions for federal
income tax purposes, except as required by changes in Applicable Law;
(k) Not close any offices at which AST’s business is conducted or open any new offices; and
(l) Not: (1) make, other than in the ordinary course of business consistent with past
practice, or change any Tax election, change an annual accounting period, or adopt or
change any accounting method with respect to Taxes; or (2) file any amended Tax Return, enter
into any closing agreement, settle or compromise any proceeding with respect to any Tax claim or
assessment relating to AST, surrender any right to claim a refund of Taxes, or consent to any
extension or waiver of the limitation period applicable to any Tax claim or assessment relating to
AST.
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7.2 Preservation of Business and Assets. Until Closing:
(a) Each Seller, Xxxxxxxxx, and AST shall use their respective commercially reasonable
efforts to: (1) preserve the current business of AST; (2) maintain the present Clients of AST on
terms substantially equivalent to the terms of the existing agreements between those Clients and
AST in effect on the date hereof; and (3) preserve the goodwill and reputation of AST.
(b) AST shall not change the fundamental nature or characteristics of its business from the
business conducted as of the date hereof.
7.3 Standstill. AST and Sellers jointly and severally agree that, without WT’s prior
written consent, the interests of, and the number of shares of Stock owned by, each Seller in AST
as of the date hereof (as set forth in Section 4.4(a) of the Seller Disclosure Schedule) shall not
be altered or changed.
7.4 Directors’ and Officers’ Insurance. Prior to the Closing Date, Sellers shall (a)
at their expense purchase “tail” directors’ and officers’ insurance with coverage at least equal in
scope and amount to those in effect for Capital Trust Company of Delaware on February 10, 2006,
and continuing for a term ending on February 10, 2012, and (b) at AST’s expense purchase “tail”
directors’ and officers’ insurance with coverage equal in scope and amount to those in effect for
AST Capital Trust Company on February 10, 2007, to be effective beginning on the Closing Date and
continuing for a term ending three years thereafter.
7.5 Qualification in Maryland. AST shall use commercially reasonable efforts to
qualify as a foreign fiduciary in Maryland as promptly as practicable.
ARTICLE 8
COVENANTS OF SELLERS, KARFUNKEL, AST, AND WT
8.1 Non-Solicitation.
(a) From the date of this Agreement to the earlier of the termination of this Agreement and
the Closing, none of any Seller, Xxxxxxxxx, or AST, shall (and shall cause their respective (as
applicable) directors, officers, employees, representatives, and agents not to), directly or
indirectly:
(1) Solicit, encourage, or entertain inquiries or proposals for,
(2) Initiate or participate in discussions or negotiations with any Person concerning,
(3) Enter into any agreement or arrangement with respect to, or
(4) Provide any Person with non-public information in connection
with,
36
an acquisition of some or all of the Stock or AST’s properties or assets, an acquisition of an
equity interest in AST (including from any Seller), or a merger or business combination involving
AST, except as contemplated by this Agreement (an “Acquisition Proposal”).
(b) From the date of this Agreement to the earlier of the termination of this Agreement and
the Closing, each Seller, Xxxxxxxxx, and AST shall notify WT promptly, and in any event within one
business day, if:
(1) They receive (or any of their respective (as applicable) directors, officers, employees,
representatives, or agent receives) an Acquisition Proposal (including the terms of any such
Acquisition Proposal);
(2) A Person requests information from them (or any of their respective (as applicable)
directors, officers, employees, representatives, or agents) relating to an actual or potential
Acquisition Proposal; or
(3) A Person seeks to initiate negotiations or discussions reasonably likely to result in an
Acquisition Proposal.
(c) Each Seller, Xxxxxxxxx, and AST shall (and shall ensure that their respective (as
applicable) directors, officers, employees, representatives and agents shall) immediately end any
activities (including discussions or negotiations with any Persons) conducted before the date of
this Agreement with respect to an Acquisition Proposal and use all commercially reasonable efforts
to have these Persons promptly return all materials that any Seller, Xxxxxxxxx, or AST (or any of
their respective (as applicable) directors, officers, employees, representatives, or agents) gave
them.
(d) None of any Seller, Xxxxxxxxx, or AST shall (and shall ensure that their respective (as
applicable) directors, officers, employees, representatives, and agents shall not) amend, waive,
or terminate, or otherwise release a Person from, a standstill, confidentiality, or similar
agreement relating to AST or its business.
8.2 Notification. From the date of this Agreement to the Closing, each Seller,
Xxxxxxxxx, and AST shall promptly notify WT in writing of any fact, condition, event, or occurrence
within any such Person’s Knowledge (or to the Knowledge of AST) that (1) causes or constitutes a
breach of any covenant of any such Person under this Agreement or that makes satisfaction of the
conditions in Section 11.1, 11.2, 11.3, 11.4, 11.6, or 11.7 impossible or unlikely; (2) causes or
constitutes a breach of any of such Person’s representations or warranties made as of the date of
this Agreement or that would cause or constitute such a breach had such representation or warranty
been made as of the time of occurrence or discovery of such fact,
condition, event, or occurrence; or (3) has or could reasonably be expected to have a Material
Adverse Effect. No such notification shall be deemed to have modified the representations,
warranties, or covenants of a Party for purposes of determining (a) whether the conditions in
Section 11.1, 11.2, 11.3, 11.4, 11.6, or 11.7 hereof have been satisfied, (b) whether any of the WT
Indemnitees is entitled to any indemnification under Section 13.1, or (c) whether this Agreement
may be terminated by WT pursuant to Section 14.1(d).
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8.3 Access and Information. From the date of this Agreement to the Closing, upon
reasonable advance notice (a) each Seller, Xxxxxxxxx and AST shall give WT and its Affiliates and
their respective accountants, counsel, and other representatives full access during normal business
hours to AST’s offices, properties, books, contracts, commitments, reports, records, and personnel,
and give them, or give them access to, the documents, financial data, records, and information with
respect to AST and its business as WT from time to time reasonably requests, and (b) solely as it
relates to AST and its business or the Original Trust Business, each Seller and Xxxxxxxxx shall
cause ASTT to give WT and its Affiliates and their respective accountants, counsel, and other
representatives access during normal business hours, to the documents, financial data, records,
information and personnel of ASTT as WT from time to time reasonably requests.
8.4 Further Actions.
(a) Each Party shall, as promptly as practicable, use all commercially reasonable efforts to
take, or cause to be taken, all actions and to do, or cause to be done, all things necessary,
proper, or advisable to fulfill their obligations under this Agreement and to consummate and make
effective the Transactions.
(b) The Parties shall, as promptly as practicable:
(1) Make, or cause to be made, the filings and submissions that they are required to make
under Applicable Law to consummate the Transactions, and give reasonable undertakings required in
connection with those;
(2) Use all commercially reasonable efforts to obtain, or cause to be obtained, the
Governmental Approvals needed to consummate the Transactions (including, without limitation, in
accordance with Section 10.1); and
(c) Each Seller, Xxxxxxxxx and AST shall, as promptly as practicable, use all commercially
reasonable efforts to obtain, or cause to be obtained, the Consent of Clients and all other third
parties needed to consummate the Transactions, in accordance with Section 11.3.
(d) None of any Seller, Xxxxxxxxx, or AST shall take any action that would cause any of the
representations or warranties in Article 4 or Article 5 to become untrue or result in any of the
conditions to the Closing set forth in Article 11 not being satisfied.
(e) WT shall not take any action that would cause any of the representations or warranties in
Article 6 to become untrue or result in any conditions to the Closing set forth in Article 12 not
being satisfied.
8.5 Further Assurances. Following the Closing Date, each Party shall from time to
time execute and deliver such additional documents and take such other actions as another Party
reasonably requests to confirm the rights and obligations in this Agreement and render the
Transactions effective.
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8.6 Non-Competition.
(a) For a period of three years after Closing (the “Restricted Period”), none of any Seller
or Xxxxxxxxx (each, a “Restricted Party”) shall, within the United States (the “Restricted Area”),
directly or indirectly, (1) provide any Services; (2) induce or attempt to induce any employee of
AST (or (A) any successor to AST or (B) any Person to which the business of AST is transferred)
employed by AST at or within one year prior to Closing to leave his or her employment with AST (or
(A) any successor to AST or (B) any Person to which the business of AST is transferred); (3)
employ or attempt to employ, or assist anyone in employing any employee of AST (or (A) any
successor to AST or (B) any Person to which the business of AST is transferred) employed by AST at
or within one year prior to Closing in connection with the provision of any Services; or (4)
solicit or accept business from any Client of AST (or (i) any successor to AST or (B) any Person
to which the business of AST is transferred) for any type of Services provided by AST prior to
Closing. For purposes of this Section 8.6(a), “Services” shall not include services as described
in Section 8.6(a) of the Seller Disclosure Schedule and as an indenture trustee, dividend
reinvestment plan administrator, direct purchase programs, employee stock plan administration
(including stock option, employee stock purchase, and restricted stock plans), stock transfer
agent and registrar, escrow agent, paying agent, and distribution and exchange agent.
(b) Each Restricted Party hereby agrees and acknowledges that: (1) the restrictions set forth
in Section 8.6(a), including the Restricted Area and Restricted Period, (A) are made in connection
with the sale of all of the Stock, including the goodwill of AST’s business; (B) are reasonable as
to time, scope, and geography, in light of the facts as they exist today; (C) are reasonable and
necessary in order to protect the legitimate interests of WT; (D) do not, and will not, impose
undue hardship on such Restricted Party; (E) do not, and will not, prevent any such Restricted
Party that is an individual from earning a living; and (F) are not injurious to the public; and
(2) WT would not have entered into this Agreement in the absence of the restrictions set forth in
Section 8.6(a).
(c) If any restriction contained in Section 8.6(a) is found by any court of competent
jurisdiction or arbitrator to be unreasonable, illegal, invalid, or unenforceable because it is
too broad (or otherwise), then such restriction shall nevertheless remain effective but shall be
considered amended to have the broadest terms which such court or arbitrator may find reasonable,
legal, valid, and enforceable.
(d) Each Restricted Party shall cause ASTT and its Subsidiaries to abide by and comply with
the provisions of this Section 8.6.
8.7 Specific Performance. Each Restricted Party acknowledges that it is fair and
reasonable that such Restricted Party makes the covenants set forth in Section 8.6, and has done so
with the benefit of the advice of counsel. In addition, each Restricted Party hereby agrees and
acknowledges that any breach or attempted breach by such Restricted Party of the provisions of
Section 8.6 will cause irreparable injury and harm to WT and its Affiliates (which, post-Closing,
shall include AST), for which monetary damages will not be an adequate remedy. Accordingly, each
of WT and its Affiliates (which, post-Closing, shall include AST) shall be entitled to apply for
and obtain injunctive relief (temporary, preliminary, and permanent) to restrain the breach or
39
threatened breach of, or otherwise to specifically enforce, any provision of Section 8.6, without
the requirement to post a bond or provide other security. Nothing herein shall be construed as a
limitation or waiver of any other right or remedy that may be available to WT or its Affiliates
(which, post-Closing, shall include AST) for that breach or threatened breach. For emergency
relief (including temporary and preliminary injunctive relief), an application may be made in any
court of competent jurisdiction.
8.8 Non-Disparagement. None of any Seller or Xxxxxxxxx shall make any disparaging,
uncomplimentary, false, or misleading statement or remark about, or impair, or attempt to impair,
the reputation of, AST, WT, or any of their respective Affiliates, businesses, divisions, services,
directors, officers, or employees, and none of WT or any of its Affiliates shall make any
disparaging, uncomplimentary, false, or misleading statement or remark about, or impair, or attempt
to impair, the reputation of, any Seller or Xxxxxxxxx. Nothing in this Section 8.8 shall limit the
rights of any Party under Article 13 hereof.
8.9 Tax Returns. Sellers shall, at Sellers’ expense, prepare, file, and pay or cause
to be paid any amounts owed with respect to any Tax Returns due to be filed by AST after the
Closing Date but relating to taxable periods ending on or before December 31, 2006. Sellers shall,
(a) at AST’s expense, prepare and file and (b) at Sellers’ expense, pay or cause to be paid any
amounts owed with respect to any Tax Returns due to be filed by AST after the Closing Date but
relating to taxable periods beginning on or after January 1, 2007 and ending on or before the
Closing Date, including, without limitation, AST’s final S corporation Tax Return, which shall
include the gains reported as a result of the Election; provided, however, that Sellers shall not
be required to pay or cause to be paid any amounts owed with respect to any such Tax Returns to the
extent that any such amounts (x) were fully and properly accrued and identified by AST in the
Financial Statements and/or the Interim Financial Statements or (y) relate to wage taxes or
franchise taxes of AST incurred in the ordinary course of its business during the period from the
date of the Interim Financial Statements through the Closing Date and that become due and payable
by AST after the Closing Date. WT shall provide, and shall cause AST to provide, Sellers with such
assistance, information, and cooperation as Sellers may reasonably request in connection with the
Tax Returns described in the preceding sentence. Sellers shall permit WT to review and comment on
each such Tax Return prior to filing and shall consider WT’s comments in good faith. To the extent
permitted by applicable law, Sellers shall include any income, gain, loss, deduction or other tax
items for such periods on their Tax Returns in a manner consistent with the Schedule K-1s prepared
by Sellers for such periods. Notwithstanding anything herein to the contrary in this Section 8.9,
Tax Returns for which AST is responsible after the Closing Date as part of its Services shall
continue to be the responsibility of AST, and Sellers shall have no obligations under this Section
8.9 with respect to such Tax Returns.
8.10 ERISA Plans. Within seven (7) days after the date hereof, Sellers, Karfunkel,
and AST shall deliver to WT a true and complete list, as of December 31, 2007, of the names of all
clients of AST which are ERISA Plans, including the names of all ERISA Plans investing in an
entity that is an ERISA Plan described in Section 4.19(m)(1)(iii) (an “ERISA Entity”), and
shall supplement that list as soon as practicable following the date hereof to include all ERISA
Plans that become clients or investors in an ERISA Entity after December 31, 2007. Between the
date hereof and the Closing Date, the parties shall use all commercially reasonable efforts to
identify any transaction or relationship between AST, WT, or any of their respective Affiliates, on
the
40
one hand, and any ERISA Plan, on the other, and any services provided by AST, WT, or any of
their respective Affiliates to any ERISA Plan, that the parties reasonably anticipate may involve a
Prohibited Transaction following the Closing Date as a result of the Transactions. Sellers,
Karfunkel, and AST shall provide WT with such assistance, information, and cooperation as WT may
reasonably request to ensure that, following the Closing Date, no such Prohibited Transaction shall
occur or that the conditions of any applicable statutory, regulatory, or administrative exemption
are satisfied.
ARTICLE 9
COVENANTS OF WT
9.1 Benefit Plans.
(a) Following the Closing Date, continuing employees of AST (“Continuing Employees”) shall be
eligible to participate in those benefit plans and programs maintained for similarly situated
employees of WT, on terms that are no less favorable in the aggregate as those provided to
similarly situated employees of WT. Notwithstanding the foregoing, at the option of WT, WT may
have Continuing Employees continue to participate in some or all of the AST Employee Plans in lieu
of comparable WT benefits or programs; provided that Continuing Employees are eligible for benefit
plans and programs that, taken together, shall be no less favorable in the aggregate than those
benefit plans and programs available to similarly situated employees of WT. In the case of WT
benefit plans and programs, each Continuing Employee shall be given credit, for purposes of any
service requirements for participation or vesting, for his or her period of service with AST
credited under a similar plan prior to the Closing Date, subject to appropriate break in service
rules, except (1) with respect to any pension plan, and (2) to the extent such credit would result
in a duplication of benefits as reasonably determined by WT. Each Continuing Employee shall, with
respect to any WT plans or programs which have co-payment, deductible, or other co-insurance
features and in which such Continuing Employee is eligible to participate, receive credit for any
amounts such individual has paid to date in the plan year of the Closing Date under comparable
plans or programs maintained by AST prior to the Closing Date.
(b) As of the Closing Date, WT shall maintain a cafeteria plan pursuant to Section 125 of the
Code that offers health and dependent care flexible spending accounts through pre-tax salary
reductions (the “WT Flex Plan”). At the option of WT, WT shall either (1) assume from AST all of
its obligations with respect to the medical care and dependent care flexible spending accounts
(the “Transferred Flexible Spending Accounts”) of Continuing Employees under AST’s existing
flexible spending account plan (the “AST Flex Plan”), including AST’s obligation to reimburse
eligible expenses incurred by participants in the AST Flex Plan but not paid prior to the Closing
Date, whether or not claims for reimbursement of such expenses have been submitted to AST prior to
the Closing Date, or (2) permit Continuing
Employees who have elected to participate in the medical care and/or dependent care flexible
spending account features of the AST Flex Plan to continue to participate in the AST Flex Plan.
In the case of clause (b)(1), the remainder of this Section 9.1 (b) shall apply. WT shall cover
all Continuing Employees who have elected to participate in the medical care and/or dependent care
flexible spending account features of the AST Flex Plan under the WT Flex Plan
41
immediately after
the Closing Date. WT shall cause the WT Flex Plan to provide that all coverage elections of such
Continuing Employees with respect to the Transferred Flexible Spending Accounts shall be carried
over to the WT Flex Plan and shall remain in effect immediately after the Closing Date, and that
the WT Flex Plan will reimburse such Continuing Employees for eligible medical and dependent care
expenses incurred by such Continuing Employees at any time during the AST Flex Plan year
(including claims incurred before the Closing Date) up to the amount of such AST Employee’s
elections and reduced by amounts previously reimbursed by AST, except to the extent otherwise
permitted by applicable law. As soon as reasonably practicable after the Closing Date, Sellers
shall determine the Aggregate Balance (as defined below) of the Transferred Flexible Spending
Accounts and notify WT of the amount of the Aggregate Balance in writing. For purposes of this
Section 9.1(b), the term “Aggregate Balance” means, as of the Closing Date, the aggregate amount
of contributions that have been made to the Transferred Flexible Spending Accounts by Continuing
Employees for the plan year in which the Closing Date occurs minus the aggregate amount of
reimbursements that have been made from the Transferred Flexible Spending Accounts to Continuing
Employees for the plan year in which the Closing Date occurs. If the Aggregate Balance is a
negative amount, WT shall pay that negative amount to Sellers as soon as practicable following
WT’s receipt of the written notice thereof. If the Aggregate Balance is a positive amount, Sellers
shall jointly and severally pay such positive amount to WT as soon as practicable following
Sellers’ delivery to WT of the written notice thereof. Sellers and Xxxxxxxxx shall use their
reasonable best efforts before and after Closing to insure that the funds and records relating to
the Transferred Flexible Spending Accounts are transferred to WT in a timely manner.
ARTICLE 10
COVENANTS OF THE PARTIES
10.1 Regulatory Authorizations.
(a) WT shall, at its sole expense, timely and promptly make all filings required to be made
by it with any Governmental Authority with respect to the consummation of the Transactions
(including, without limitation, filings with the Federal Deposit Insurance Corporation, the
Federal Reserve Bank of Philadelphia, the Office of Thrift Supervision, the Delaware Bank
Commissioner, and the Arizona Banking Department). In furtherance of, and without limiting, the
foregoing, WT shall (1) promptly make all filings required under the HSR Act, (2) timely and
promptly provide any additional information or documentation requested by the FTC, the Antitrust
Division, or any other Governmental Authority in connection with a second request or otherwise,
and (3) furnish to AST such information and assistance as AST may reasonably request in connection
with its preparation of necessary filings or submissions to the FTC, the Antitrust Division, or
any other Governmental Authority. WT shall furnish to Sellers and AST such information and
assistance they may reasonably request in connection
with the preparation by them of necessary filings or submissions to any Governmental
Authority. WT shall promptly supply AST with copies of all non-confidential correspondence,
filings, or communications (or memoranda summarizing the substance thereof) between WT or its
counsel and any Governmental Authority with respect to this Agreement and the Transactions.
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(b) Sellers, Karfunkel, and AST shall cause AST, at Sellers’, Karfunkel’s, and AST’s sole
expense, to timely and promptly make all filings required to be made by any Seller, Xxxxxxxxx, or
AST or its associated Persons with any Governmental Authority with respect to the consummation of
the Transactions. In furtherance of, and without limiting, the foregoing, AST shall (1) promptly
make all filings required under the HSR Act, (2) timely and promptly provide any additional
information or documentation requested by the FTC, the Antitrust Division, or any other
Governmental Authority in connection with a second request or otherwise, and (3) furnish to WT
such information and assistance as WT may reasonably request in connection with its preparation of
necessary filings or submissions to the FTC, the Antitrust Division, or any other Governmental
Authority. Each Seller, Xxxxxxxxx, and AST shall furnish to WT such information and assistance as
WT may reasonably request in connection with WT’s preparation of necessary filings or submissions
to any Governmental Authority. AST shall promptly supply WT with copies of all non-confidential
correspondence, filings, or communications (or memoranda summarizing the substance thereof)
between any Seller, Karfunkel, AST, or their respective counsel and any Governmental Authority
with respect to this Agreement and the Transactions.
10.2 Confidentiality.
(a) Each Party (each, a “Receiving Party”) shall, on behalf of itself and its Affiliates,
directors, officers, employees, agents, and other representatives, keep confidential any and all
information and data of a proprietary or confidential nature with respect to any other party (a
“Disclosing Party”) in the Receiving Party’s possession or that it receives as a result of any
investigation made in connection with this Agreement, other than information that is or becomes
generally available to the public other than as a result of disclosure by the Receiving Party in
violation of this Agreement. Notwithstanding the preceding sentence, each Party shall be free to
disclose any such information or data (1) to the extent required by Applicable Law and (2) during
the course of or in connection with any litigation or other proceeding based upon or in connection
with the subject matter of this Agreement; provided that, prior to disclosing any such information
in connection with (1) or (2) above, the Receiving Party shall, to the extent permitted by law,
give the other Parties prompt written notice of this proposed disclosure so that any of them can
seek a protective order.
(b) Each Receiving Party acknowledges that any breach or attempted breach by that Party of
the provisions of Section 10.2(a) will cause irreparable harm to the Disclosing Party, for which
monetary damages will not be an adequate remedy. Accordingly, each Disclosing Party shall be
entitled to apply for and obtain injunctive relief (temporary, preliminary, and permanent) to
restrain the breach or threatened breach by a Receiving Party of, or otherwise to specifically
enforce, any provision of Section 10.2(a), without the requirement to post a bond or provide other
security. Nothing herein shall be construed as a limitation or waiver of any other right or
remedy that may be available to the Disclosing Party for that breach
or threatened breach. For emergency relief (including temporary and preliminary injunctive
relief), an application may be made in any court of competent jurisdiction. Each Receiving Party
further agrees that the subject matter and duration of the restrictions covered in Section 10.2(a)
are reasonable in light of the facts as they exist today.
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10.3 Press Releases. Before the Closing, the Parties shall not (and shall ensure that
their Affiliates, directors, officers, employees, agents, and other representatives do not) issue a
press release or any other public written statement or disseminate any public communication through
any form of media (including radio, television, or electronic media) about this Agreement or the
Transactions, except (a) in the case of WT, with AST’s consent, which shall not be unreasonably
withheld, (b) in the case of any Seller, Xxxxxxxxx, or AST, with WT’s consent, which shall not be
unreasonably withheld, or (c) in each case, as required by Applicable Law.
10.4 338(h)(10) Election. WT and AST hereby agree, and Sellers hereby consent that,
at WT’s option, an election under Section 338(h)(10) of the Code and any corresponding provision of
state or local law may be made in connection with the transfer of the Stock provided for in this
Agreement. Such option must be exercised by written notice provided to the Sellers within 90 days
of the Closing. In the absence of such an exercise, no election under Section 338 of the Code or
any similar or corresponding provision of state or local law may be made with respect to the
transfer of the Stock provided for in this Agreement. If WT exercises its option to make an
election under Section 338(h)(10) of the Code, WT, Sellers, and AST further agree as follows:
(a) If WT timely exercises such option to make a Section 338(h)(10) election, then WT,
Sellers, and AST jointly shall promptly make an election pursuant to the provisions of Section
338(h)(10) of the Code (the “Election”) with respect to the purchase and sale of the Stock
hereunder. WT and Sellers shall complete and execute Form 8023 at Closing and WT, Sellers, and
AST shall treat the Election consistently.
(b) If WT exercises such option to make a Section 338(h)(10) election, WT, Sellers, and AST,
shall cooperate and cause their respective Affiliates to cooperate with the others in preparing,
executing, and filing any Tax forms and other documents required under Section 338(h)(10) of the
Code and other Applicable Law so that the Election will be made in a proper and timely manner.
That cooperation shall include providing all information and records necessary in connection with
those Tax forms.
(c) At Closing, WT shall provide a calculation and allocation of the “adjusted deemed sale
price” (as such term is defined for purposes of Section 338 of the Code) among the assets of AST
to Sellers. If any Seller provides WT with written notice disputing such calculation or
allocation within 30 days after Closing, the parties shall work together in good faith until the
60th day after Closing to agree upon the calculation and allocation. If no agreement is reached
by such date, and if WT has exercised its option pursuant to this Section 10.4, then the dispute
shall be referred to an independent accountant of national standing reasonably acceptable to WT
and Sellers (the “Independent Expert”) for resolution. The Independent Expert will be directed to
render a determination within 30 days of its retention and WT, AST, and Sellers shall each
cooperate with the Independent Expert during its
engagement. The costs of the Independent Expert shall be borne equally by Sellers and WT.
Sellers and WT agree, if WT exercises its option pursuant to this Section 10.4, to report for Tax
purposes in a manner consistent with the allocation determined under this Section 10.4.
(d) To the extent permitted by state and local laws, WT may make an election
44
under those laws
corresponding to Section 338(h)(10) of the Code and the principles and procedures of Sections
10.4(a), (b), and (c) above shall also apply with respect to elections filed for those purposes
and to forms and related documents to be filed pursuant thereto.
(e) Sellers shall pay any Taxes imposed on Sellers attributable to the making of the
Election, and shall have indemnification obligations in connection with the Election to the extent
provided for in Article 13 hereof.
ARTICLE 11
CONDITIONS PRECEDENT TO WT’S OBLIGATIONS
The obligations of WT to consummate the Transactions are subject to the satisfaction at
Closing or, where appropriate, before the Closing Date, of the following conditions, except to the
extent WT waives any such condition in writing on or before the Closing Date:
11.1 No Litigation; No Opposition. No judgment, injunction, order, or decree
enjoining or prohibiting any of WT, any Seller, Karfunkel, AST, or other party to any Transaction
Document from consummating the Transactions or from engaging in any activity related to the
Transactions shall have been entered. No suit, action, claim, proceeding, or investigation shall
be pending or threatened before or by any court or Governmental Authority seeking to restrain or
prohibit, or seeking damages or other relief in connection with, the execution and delivery of this
Agreement or any other Transaction Document or the consummation of the Transactions.
11.2 Representations and Warranties Sellers and Xxxxxxxxx.
(a) Each of the representations and warranties of the Sellers and Xxxxxxxxx in Article 4 shall
be true and correct at and as of the Closing Date as if made at and as of the Closing Date, except
(1) to the extent that such representations and warranties refer specifically to an earlier date,
in which case such representations and warranties shall have been true and correct as of such
earlier date, and (2) for breaches of such representations and warranties the circumstances giving
rise to which, individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect on AST.
(b) Each of the representations and warranties of the Sellers and Xxxxxxxxx in Article 5 that
is qualified by materiality shall be true and correct at and as of the Closing Date as if made at
and as of the Closing Date and each of the representations and warranties that is not so qualified
shall be true and correct in all material respects at and as of the Closing Date as if made at and
as of the Closing Date, except to the extent that such representations and warranties refer
specifically to an earlier date, in which case such representations and warranties qualified by
materiality shall have been true and correct as of such earlier date and such representations
and warranties not so qualified shall be true and correct in all material respects at such earlier
date.
(c) Each Seller and Xxxxxxxxx shall have delivered to WT a certificate, dated the Closing
Date, certifying the matters in Sections 11.2(a) and (b).
45
11.3 Annualized Revenue. The Annualized Revenue shall equal no less than $25,421,415.
AST shall have delivered to WT a certificate, dated the Closing Date, certifying the amount of
such Annualized Revenue.
11.4 Other Approvals. All actions and approvals, consents, or waivers by or in
respect of, or filings with, any Governmental Authority (including, without limitation, all
Governmental Approvals) required to be taken, made, or obtained by, any Seller, Xxxxxxxxx, or AST
in connection with the consummation of the Transactions, or to permit the consummation of the
Transactions so that AST shall be able to continue to carry on after the Closing Date the business
conducted by AST immediately prior to Closing, shall have been taken, made, or obtained. AST shall
have obtained a waiver of any breach or default that would arise (without regard to any applicable
notice requirement or grace period) under any of the Contracts with any Person set forth in
Schedule 11.4 by reason of the consummation of the Transactions. AST shall have delivered to WT a
certificate, dated the Closing Date, certifying the matters in this Section 11.4.
11.5 Xxxx-Xxxxx-Xxxxxx. All filings required under the HSR Act shall have been
completed and all applicable time limitations under the HSR Act shall have expired or been
terminated without a request for further information by the relevant federal authorities under the
HSR Act, or, in the event of such a request for further information, the expiration of all
applicable time limitations under the HSR Act shall have occurred without the objection of those
federal authorities.
11.6 Capitalization. Sellers shall be the only stockholders of AST, and their respective
interests in AST, and the number of shares of Stock owned by each of them, shall be as set forth
in Section 4.4(a) of the Seller Disclosure Schedule. AST shall have delivered to WT a
certificate, dated the Closing Date, with respect to the foregoing.
11.7 Performance; Deliveries. Each Seller, Xxxxxxxxx, and AST shall have duly
performed in all material respects all obligations, covenants, and agreements required to be
performed by he, she, or it under this Agreement and the other Transaction Documents to which he,
she, or it is a party at or prior to the Closing Date. AST shall have executed, where applicable,
and delivered to WT (or shall have caused to be executed and delivered to WT by the appropriate
person) the following:
(a) A certificate of the Secretary of AST that AST has duly performed in all material
respects all obligations, covenants, and agreements required to be performed it under this
Agreement and the other Transaction Documents to which it is a party at or prior to the Closing
Date;
(b) The certificate or certificates contemplated by this Section 11.7 and
Sections 11.2, 11.3, 11.4, 11.6, 11.9, 11.10, 11.11, and 11.17;
(c) Certified copies of resolutions of the board of directors of AST authorizing the
Transactions and the execution of each Transaction Document to which AST is a party;
(d) The certificate of incorporation (certified as of a recent date by the Secretary of State
of Delaware) and bylaws of AST;
46
(e) Certificates of the Secretary of AST certifying that the resolutions, certificates of
incorporation, and bylaws referred to in Sections 11.7(c) and 11.7(d) above are in full force and
effect and have not been amended or modified, and that the officers of AST are those persons named
in the certificates;
(f) (1) A certificate issued by the Secretary of State or other appropriate Governmental
Authority in each jurisdiction listed in Schedule 11.7(f)(1) certifying that AST is qualified as a
foreign corporation under the name “AST Capital Trust Company of Delaware” and is in good standing
in that jurisdiction as of the most recent practicable date (other than the State of Washington
with respect to good standing) and (2) a certificate issued by the appropriate Governmental
Authority in each jurisdiction listed in Schedule 11.7(f)(2) certifying that AST is licensed,
registered, and/or qualified to provide trust or fiduciary services under the name “AST Capital
Trust Company of Delaware” (provided that no such certificate shall be required from any such
Governmental Authority if such Governmental Authority does not have certificates evidencing that a
Person is licensed, registered, and/or qualified to provided trust or fiduciary services);
(g) The written resignation of each director of AST, effective as of immediately prior to the
Closing;
(h) A schedule listing each of AST’s Aged Accounts Receivable and the amounts thereof as of
the date that is three (3) Business Days prior to the Closing Date;
(i) An opinion from Xxxxxx Xxxxx & Xxxxxxx LLP, legal counsel to AST, in the form of Exhibit
E;
(j) An opinion from Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, legal counsel to the Trust,
or other legal counsel reasonably satisfactory to WT, in the substance of Exhibit F and in form
reasonably satisfactory to WT;
(k) The stock certificate(s) of each Seller, representing all of such Seller’s shares of
Stock, together with an endorsement thereof duly executed;
(l) The Election, duly executed by Sellers; and
(m) True and correct copies of each other Transaction Document.
11.8 Employment Agreements.
(a) The existing employment agreements or arrangements between AST and each of the individuals
listed on Schedule 11.8(a) attached hereto shall have been terminated, AST shall have provided WT a
certificate to that effect, the Employment Agreement shall remain in full force and effect,
Xxxxxxxx shall remain, or otherwise be, employed by AST, and there shall be no breach, or
anticipated breach, of the Employment Agreement by Xxxxxxxx.
(b) Either the existing employment agreements or arrangements between AST and each of the
individuals listed on Schedule 11.8(b) attached hereto shall have been amended and modified in
accordance with Exhibits G-1, G-2, and G-3, respectively, or the employment
47
of any such employee
who has not executed such applicable amendment and modification shall have been terminated, and
AST shall have provided WT a certificate to that effect.
11.9 No Material Adverse Effect. Since the date of this Agreement, no event or
condition, individually or in the aggregate, shall have had a Material Adverse Effect on AST. AST
shall have delivered to WT a certificate, dated the Closing Date, with respect to the foregoing.
11.10 No Liens. Any and all Liens on the Stock shall be released in full, any and all
Liens on the properties and assets of AST, other than Permitted Liens, shall be released in full,
and AST’s Secretary shall have delivered to WT a certificate, dated the Closing Date, to this
effect with respect to the assets of AST. AST shall have delivered to WT UCC-3 termination
statements terminating all UCC-1 financing statements filed against any properties or assets of
AST.
11.11 Satisfaction of Loans; No Indebtedness.
(a) All loans made by AST and advances payable by AST to any Person shall have been paid in
full.
(b) All loans to any employee of AST shall have been satisfied.
(c) AST shall have no outstanding Indebtedness, other than the capital leases set forth on
Section 11.11(c) of the Sellers’ Disclosure Schedule.
AST shall have delivered to WT a certificate, dated the Closing Date, certifying the matters in
this Section 11.11.
11.12 Financial Statements. AST shall have provided WT an unaudited balance sheet,
income statement, and statement of cash flows of AST for the period from the date of the Financial
Statements through (a) the month-end preceding Closing if the Closing occurs after the tenth
10th calendar day in a month or (b) the prior month-end preceding the Closing if the
Closing occurs during the first ten (10) calendar days of the month prepared in accordance with
GAAP applied on a consistent basis (as the same may be adjusted in accordance with the following
sentence) (the “Interim Financial Statements”). Notwithstanding anything to the contrary herein,
the Interim Financial Statements shall reflect adjustments requested by WT so that the Interim
Financial Statements are in accordance with GAAP. Except as contemplated by
Section 4.12(e) hereof, AST shall not make any additional representation or warranty regarding
the Interim Financial Statements. In addition, if AST makes any adjustments to the Interim
Financial Statements at the request of WT, then the effect of such adjustments shall be disregarded
and not taken into account for purposes of determining (x) whether or not there has been a breach
of Section 4.12 of this Agreement (other than Section 4.12(e)), (y) the satisfaction of any
condition set forth in this Article 11, or (z) the amount, if any, of any Loss under Article 13 of
this Agreement.
11.13 Affidavits; Form 8023. Each Seller shall have executed and delivered to WT (a)
a certification of non-foreign status for purposes of Treasury Regulations Section 1.1445-2(b)(2)
in form and substance reasonably satisfactory to WT and (b) a Form 8023.
48
11.14 Releases. Each Seller, Xxxxxxxxx, and ASTT shall have executed and delivered to
WT the Releases.
11.15 Tail Insurance Coverage. Sellers shall have purchased the “tail” insurance
coverage contemplated by Section 7.4 hereof, such insurance coverage shall be in effect, and
Sellers shall have provided WT with evidence of all such insurance coverage.
11.16 Indemnification Agreements. The indemnification agreements dated as of January
4, 2007 between AST and each of Xxxxxxxxx, Xxxxxx Xxxxxxxxx, Xxx Xxxxxx, Xxxxxxxx, and Xxxxx
Xxxxxxx shall have been terminated, and AST shall have provided WT a certificate to that effect.
11.17 Bonus Payment. The aggregate dollar amount of the Bonus Payment shall equal
the dollar amount set forth in Amendment No. 1 to Employment Agreement of even date herewith and
as in effect on the date hereof to the Xxxxxxxx Employment Agreement. AST’s books and records
shall reflect the liability and corresponding expense associated with the Bonus Payment (including
taxes and other amounts legally required to be withheld in connection with the payment thereof).
Sellers shall have delivered to WT a certificate, dated as of the Closing Date, with respect to
the foregoing.
ARTICLE 12
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF SELLERS, KARFUNKEL, AST
The obligations of Sellers, Karfunkel, and AST to consummate the Transactions are subject to
the satisfaction at Closing or prior to the Closing Date of the following conditions, except to
the extent that Sellers, Karfunkel, or AST, as the case may be, have waived any such condition in
writing on or prior to the Closing Date:
12.1 No Litigation; No Opposition. No judgment, injunction, order, or decree
enjoining or prohibiting any of WT, any Seller, Karfunkel, AST, or other party to any Transaction
Document from consummating the Transactions or from engaging in any activity related to the
Transactions shall have been entered. No suit, action, claim, proceeding, or
investigation shall be pending or threatened before or by any court or Governmental Authority
seeking to restrain or prohibit, or seeking material damages or other significant relief in
connection with, the execution and delivery of this Agreement or any other Transaction Document or
the consummation of the Transactions.
12.2 Representations, Warranties, and Covenants. Each of the representations and
warranties of WT in Article 6 shall be true and correct at and as of the Closing Date as if made at
and as of the Closing Date, except (a) to the extent that such representations and warranties refer
specifically to an earlier date, in which case such representations and warranties shall have been
true and correct as of such earlier date, and (b) for breaches of such representations and
warranties that, individually or in the aggregate, would not reasonably be expected to have a
49
Material Adverse Effect on WT. WT shall have delivered to AST a certificate, dated the Closing
Date, certifying the matters in this Section 12.2.
12.3 Performance; Deliveries. WT shall have duly performed in all material respects
all obligations, covenants, and agreements required to be performed it under this Agreement and the
other Transaction Documents to which it is a party at or prior to the Closing Date. WT shall have
executed, where applicable, and delivered to Sellers and AST:
(a) Certified copies of resolutions of WT’s board of directors authorizing the execution of
this Agreement and each other Transaction Document to which WT is a party;
(b) A copy of the charter and current bylaws of WT;
(c) A certificate of the Secretary of WT certifying that the resolutions, charters, and
bylaws in Sections 12.3(a) and 12.3(b) above are in full force and effect and have not been
amended or modified, and that the officers of WT are those persons named in the certificate;
(d) The certificate contemplated by Section 12.2;
(e) A certificate issued by the Office of Thrift Supervision certifying that WT is validly
existing as of the most recent practicable date;
(f) The calculation and allocation contemplated by Schedule 10.4(c); and
(g) True and correct copies of each other Transaction Document to which WT is a party.
In addition, at Closing, WT shall have delivered or caused to be delivered the Closing Payment.
12.4 Other Approvals. All actions and approvals by or in respect of, or filings with,
any Governmental Authority required to be taken, made, or obtained by WT to permit the consummation
of the Transactions so that AST shall be able to continue to carry on after the Closing Date the
business conducted by AST immediately prior to Closing shall have been taken, made, or obtained.
12.5 Xxxx-Xxxxx-Xxxxxx. All filings required under the HSR Act shall have been
completed and all applicable time limitations under the HSR Act shall have expired or been
terminated without a request for further information by the relevant federal authorities under the
HSR Act, or, in the event of such a request for further information, the expiration of all
applicable time limitations under the HSR Act shall have occurred without the objection of those
federal authorities.
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ARTICLE 13
INDEMNIFICATION
13.1 Indemnification by Sellers and Xxxxxxxxx. Sellers and Xxxxxxxxx shall jointly and
severally defend, indemnify, save, and hold harmless WT and its Affiliates and their respective
shareholders, managers, members, directors, officers, employees, successors, assigns, agents,
advisers, and representatives (collectively, the “WT Indemnitees”) from and against any and all
actions, suits, claims, proceedings, demands, assessments, obligations, fees, judgments, costs,
losses, liabilities, damages, deficiencies, and expenses (including, without limitation, interest,
penalties, reasonable attorneys’ and accountants’ fees, and all reasonable amounts paid in the
investigation, defense, or settlement of any of the foregoing or in WT or any of its Affiliates
asserting any of their rights under this Agreement) (collectively, “Losses”) incurred in
connection with, arising out of, resulting from, or related to:
(a) Any breach of any representation or warranty when made or deemed made by any Seller,
Xxxxxxxxx, or AST under this Agreement, any other Transaction Document, or any certificate
delivered pursuant to Sections 11.2, 11.3, 11.4, 11.6, 11.7, 11.9, 11.10, 11.11, and 11.17 of this
Agreement (without regard to the qualification set forth in Section 11.2(a)(2));
(b) Any breach or non-fulfillment of any covenant or obligation of any Seller, Xxxxxxxxx, or
AST under this Agreement or any other Transaction Document;
(c) Any Loss arising or resulting from, or relating to:
(1) The business or operations of the entity listed on Schedule 13(c)(1);
(2) AST’s not being licensed, registered, qualified to do business, and/or in good standing in
any jurisdiction in which it is so required to be licensed, registered, qualified to do business,
and/or in good standing;
(3) Any breach by any Seller, Xxxxxxxxx, or AST of a representation or warranty made by any of
them in this Agreement that is limited, in whole or in part, to a period beginning on January 8,
2004 (including the Original Trust Business Period), February 10, 2006, or January 4, 2007,
assuming, for purposes of this Section 13.1(c)(3) only, that (A) such date or dates are deleted and
the date “January 30, 2003” is substituted in lieu thereof, and (B) references to AST include any
predecessor of AST or AST as a successor-in-interest to any entity; and
(4) The litigation and claims described in Schedule 13.1(c)(4) (each,
an “Existing Litigation,” and collectively, the “Existing Litigation”).
(d) Any action, suit, claim, or similar proceeding asserted by any director, officer, or
employee of AST arising out of or relating to any claim for indemnification by a past or present
director, officer, or employee under AST’s certificate of incorporation, bylaws, other governance
or organizational documents, or agreements, with respect to such Person’s service as a director,
officer, or employee of AST prior to the Closing; or
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(e) Any and all liabilities for Taxes (1) since January 30, 2003 with respect to any taxable
period of AST (or any predecessor of AST or AST as a successor in interest to any entity) for all
taxable periods ending on or before the Closing Date and with respect to any taxable period that
begins on or before and ends after the Closing Date (a “Straddle Period”), for the portion thereof
ending on the Closing Date (provided, however, that Sellers and Xxxxxxxxx shall not be required to
indemnify the WT Indemnitees with respect to claims for Losses resulting from liabilities for
Taxes under this Section 13.1(e)(1) to the extent that any such liabilities for Taxes (A) were
fully and properly accrued and identified by AST in the Financial Statements and/or the Interim
Financial Statements) or (B) relate to wage taxes or franchise taxes of AST incurred in the
ordinary course of its business during the period from the date of the Interim Financial
Statements through the Closing Date and that become due and payable by AST after the Closing Date,
(2) arising out of the imposition of the Tax provided for in Section 1374 of the Code or any
corresponding provisions of state, local, or foreign Tax law to AST or any of its Subsidiaries as
a result of the Election (or any comparable election under state or local law) made with respect
to the sale of the Stock provided for herein, it being understood and agreed, however, that there
will be no indemnification by Sellers or Xxxxxxxxx hereunder in respect of the effects of any
decrease in the tax basis of any asset resulting from the Election (or any comparable election
under state or local law), and (3) transfer, sales, recording, or similar Taxes imposed in respect
of the sale, assignment, transfer, conveyance, or delivery of the Stock provided for herein.
Without limiting the generality of the foregoing, the right of the WT Indemnitees (or any of them)
to indemnification as set forth in this Article 13 shall apply to Losses that arise from claims
between the Parties and third party claims.
13.2 Indemnification by WT. WT shall defend, indemnify, save, and hold harmless
Sellers and Xxxxxxxxx and their respective Affiliates, officers, directors, employees,
shareholders, members, successors, assigns, agents, advisers, and representatives (collectively,
the “Seller Indemnitees”) from and against any Losses incurred in connection with, resulting from,
arising out of, or related to:
(a) Any breach of any representation or warranty when made or deemed made by WT under this
Agreement, any other Transaction Document, or any certificate delivered pursuant to Sections 12.2
and 12.3 of this Agreement; or
(b) Any breach or non-fulfillment of any covenant or obligation of WT under this Agreement or
any other Transaction Document.
Without limiting the generality of the foregoing, the right of the Seller Indemnitees (or any of
them) to indemnification as set forth in this Article 13 shall apply to Losses that arise from
claims between the Parties and third party claims.
13.3 Limitation of Liability.
(a) Sellers and Xxxxxxxxx shall not be required to indemnify the WT Indemnitees with respect
to claims for Losses under Section 13.1(a), (b), (c)(1), (c)(2), or (c)(3):
(1) unless such claim or series of directly related claims for which the
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WT Indemnitees are
otherwise entitled to indemnification pursuant to Section 13.1(a), (b), (c)(1), (c)(2), or (c)(3)
exceeds Ten Thousand Dollars ($10,000) (the “Minimum Claim Amount”) (it being understood and
agreed that Sellers and Xxxxxxxxx shall not be liable for any Losses with respect to any claim or
series of directly related claims in the event that such Losses are less than the Minimum Claim
Amount); and
(2) unless and until the aggregate amount of Losses for which the WT Indemnitees are
otherwise entitled to indemnification pursuant to Section 13.1 (a), (b), (c)(1), (c)(2) and (c)(3)
exceeds Six Hundred Fifty Thousand Dollars ($650,000) (the “Deductible Amount”) (it being
understood and agreed that any claim or series of directly related claims for Losses, including,
without limitation, Losses of less than the Minimum Claim Amount, shall be included and counted
for purposes of calculating the Deductible Amount). In addition, Sellers and Xxxxxxxxx shall not
be required to indemnify the WT Indemnitees with respect to any Losses under Section 13.1 to the
extent such Losses exceed Twenty-Two Million Five Hundred Thousand Dollars ($22,500,000) (the
“Maximum Amount”).
(b) WT shall not be required to indemnify the Seller Indemnitees with respect to claims for
Losses under Section 13.2:
(1) unless such claim or series of directly related claims for which the Seller Indemnitees
are otherwise entitled to indemnification pursuant to Section 13.2 exceeds the Minimum Claim
Amount (it being understood and agreed that WT shall not be liable for any Losses with respect to
any claim or series of directly related claims in the event that such Losses are less than the
Minimum Claim Amount); and
(2) unless and until the aggregate amount of Losses for which the Seller Indemnitees are
otherwise entitled to indemnification pursuant to Section 13.2 exceeds the Deductible Amount (it
being understood and agreed that any claim or series of directly related claims for Losses,
including, without limitation, Losses of less than the Minimum Claim Amount, shall be included and
counted for purposes of calculating the Deductible Amount). In addition, WT shall not be required
to indemnify the Seller Indemnitees with respect to Losses under Section 13.2 to the extent that
such Losses exceed the Maximum Amount.
(c) All of the representations and warranties contained in this Agreement, any other
Transaction Document, or any certificate delivered pursuant to this Agreement shall survive the
Closing and remain in full force and effect until the date that is 18 months after the Closing
Date; provided that the representations and warranties contained in Sections 4.2, 4.4, 4.19(a)-(m),
4.21, 5.1, 5.2, and 6.2 shall survive without limitation as to time. Each covenant and obligation
of the Parties contained in this Agreement or any other Transaction Document
shall survive until fully performed, fulfilled, or, if such covenant or obligations expires on
a date certain, such date. No action or claim for Losses pursuant to Section 13.1(a) (other than
for any breach of Section 4.2, 4.4, 4.19(a)-(m), 4.21, 5.1, or 5.2 hereof) or 13.1(b) (other than
for any breach or non-fulfillment of any covenant or obligation in Section 8.6, 8.7, 8.8, 8.9, 10.2
or 10.4 hereof), Section 13.1(c)(1), Section 13.1(c)(2), Section 13.1(c)(3), or Section 13.2(a)
(other than for any breach of Section 6.2 hereof) or 13.2(b), shall be brought after the date that
is 18 months after the Closing Date; provided that if notice of any claim for indemnification
hereunder has been given within the applicable survival period or timeframe set forth in this
Section 13.3(c),
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the representations, warranties, covenants, and/or obligations that are the
subject of that indemnification claim shall survive and/or continue until that time as such claim
is finally resolved.
13.4 Defense of Claims.
(a) Existing Litigation. With respect to each Existing Litigation:
(1) Sellers and Xxxxxxxxx hereby acknowledge and agree that, notwithstanding any contrary
provision herein: (A) Sellers and Xxxxxxxxx are jointly and severally obligated under the terms of
this Article 13 for all Losses of any WT Indemnitee in connection with any such Existing
Litigation, subject to the last sentence of Section 13.3(a); and (B) Sellers and Xxxxxxxxx have
elected to take control of the defense of the Existing Litigation.
(2) The Indemnifying Party shall be entitled to continue to employ and engage counsel of its
choice (including AST’s existing counsel as of the date hereof) to handle and defend the Existing
Litigation (provided that any other counsel engaged by the Indemnifying Party shall be reasonably
satisfactory to WT), at the Indemnifying Party’s cost, risk, and expense. If counsel for the
Indemnified Party determines in good faith and advises the Indemnifying Party in writing that under
applicable standards of professional conduct there is a conflict of interest on a significant issue
between the Indemnifying Party and the Indemnified Party in respect of a Existing Litigation, then
the Indemnifying Party shall pay all reasonable fees and expenses of separate counsel for the
Indemnified Party with respect to such Existing Litigation; provided, however, that (A) the
Indemnifying Party shall be obligated pursuant to this Section 13.4(a)(2) to pay for only one firm
of counsel (unless under applicable standards of professional conduct the use of one counsel for
that Indemnified Party would present that counsel with a conflict of interest) for all Indemnified
Parties in any jurisdiction, and (B) the Indemnifying Party shall cooperate in the defense of any
such matter and make its employees and records relating to that defense available to the
Indemnified Party. The Indemnified Party shall cooperate in all reasonable respects, at the
Indemnifying Party’s request and cost, risk, and expense, with the Indemnifying Party and its
counsel in the defense of such Existing Litigation; provided that the Indemnified Party may, at its
own cost, participate in the defense of such Existing Litigation. In each instance, the
Indemnifying Party shall pay all amounts that are or become owed or payable by the Indemnifying
Party under this Section 13.4(a)(2) within 45 days following the Indemnifying Party’s receipt of
any invoice or statement for such owed or payable amounts (whether such invoices or statements are
received by the Indemnifying Party directly or as a result of being forwarded to the Indemnifying
Party by WT, another Indemnified Party, or a third party). The Indemnifying Party shall keep the
Indemnified Party apprised of the status of the Existing Litigation, furnish the Indemnified Party
with all documents and information the
Indemnified Party reasonably requests in connection therewith, and consult with the
Indemnified Party before acting on major matters involved in the Existing Litigation, including
settlement discussions. Unless the Indemnified Party receives a complete release from all matters
involved in the dispute or the judgment or settlement is only for monetary damages that the
Indemnifying Party pays in full, no settlement or consent to entry of a judgment of any action for
which indemnification may be payable hereunder shall be made without the prior written consent of
the Indemnified Party, not to be unreasonably withheld.
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(b) All Other Claims. Other than with respect to any Existing Litigation, if any
action, suit, claim, tax audit, proceeding, demand, assessment, or enforcement action (each, an
“Other Claim”) is filed or initiated by a third party against an Indemnified Party with respect to
a matter subject to an indemnification claim by that Indemnified Party, the Indemnified Party
shall give written notice thereof to the Indemnifying Party or Parties as promptly as practicable,
and in any event within 20 days after service of the citation or summons, but the failure of an
Indemnified Party to give notice shall not affect an Indemnifying Party’s obligation to fulfill
its indemnification obligations except to the extent that the failure actually and materially
prejudices the Indemnifying Party’s rights. After that notice and a reasonable period of time to
allow for analysis of the Other Claim, the Indemnifying Party shall be entitled, if it so elects
and with counsel reasonably satisfactory to the Indemnified Party, to take control of the defense
and investigation of that Other Claim and to employ and engage counsel to handle and defend the
same, at the Indemnifying Party’s cost and expense, except that, if the Indemnifying Party elects
not to assume that defense or counsel for the Indemnified Party determines in good faith and
advises the Indemnifying Party in writing that under applicable standards of professional conduct
there is a conflict of interest between the Indemnifying Party and the Indemnified Party in
respect of the Other Claim, the Indemnified Party may retain separate counsel satisfactory to it,
and the Indemnifying Party shall pay all reasonable fees and expenses of such counsel for the
Indemnified Party promptly as statements therefor are received; provided, however, that (1) the
Indemnifying Party shall be obligated pursuant to this Section 13.4(b) to pay for only one firm of
counsel (unless under applicable standards of professional conduct the use of one counsel for that
Indemnified Party would present that counsel with a conflict of interest) for all Indemnified
Parties in any jurisdiction, and (2) the Indemnifying Party shall cooperate in the defense of any
such matter and make its records relating to the defense available to the Indemnified Party. If
the Indemnifying Party assumes the control of that defense, the Indemnified Party shall cooperate
in all reasonable respects, at the Indemnifying Party’s request and cost and expense, with the
Indemnifying Party and its counsel in the investigation, trial, and defense of the Other Claim and
any appeal arising therefrom; provided that the Indemnified Party may, at its own cost,
participate in the investigation, trial, and defense of that Other Claim and any appeal arising
therefrom. In each instance, the Indemnifying Party shall pay all amounts that are or become owed
or payable by the Indemnifying Party under this Section 13.4(b) within 45 days following the
Indemnifying Party’s receipt of any invoices or statements for such owed or payable amounts
(whether such invoices or statements are received by the Indemnifying Party directly or as a
result of being forwarded to the Indemnifying Party by an Indemnified Party or a third party).
The Indemnifying Party shall keep the Indemnified Party apprised of the status of any Other Claim,
furnish the Indemnified Party with all documents and information the Indemnified Party reasonably
requests in connection therewith, and consult with the Indemnified Party before acting on major
matters involved in that Other Claim, including settlement discussions. Unless the Indemnified
Party receives a complete release from all
matters involved in the dispute or the judgment or settlement is only for monetary damages
that the Indemnifying Party pays in full, no settlement or consent to entry of a judgment of any
action for which indemnification may be payable hereunder shall be made without the prior written
consent of the Indemnified Party. The Indemnified Party shall be entitled to defend, settle, or
proceed in such other manner as it deems fit, in its sole discretion, in connection with any Other
Claim with respect to which the Indemnifying Party has not assumed control of the defense in
writing in accordance with the foregoing; provided that the Indemnifying Party shall
55
not be
obligated to indemnify the Indemnified Party for any settlement entered into or judgment consented
to without the Indemnifying Party’s prior written consent.
If the Indemnifying Party assumes the control of the defense of an Other Claim as provided
above but subsequently, in the course of defending the matter, comes to believe that the matter is
not properly an obligation of that Indemnifying Party, the Indemnifying Party may with reasonable
promptness advise the Indemnified Party of that new information. In that case, (1) if the
Indemnified Party then agrees with the Indemnifying Party, the Indemnifying Party and the
Indemnified Party shall make mutually satisfactory arrangements for the Indemnified Party to
assume the defense of that matter and to repay the Indemnifying Party for any amounts reasonably
expended by it pursuant to this Article 13 with respect to that matter, and (2) if the Indemnified
Party does not then agree with the Indemnifying Party, the Indemnifying Party shall have the right
to commence legal proceedings to determine whether the matter is subject to indemnification by the
Indemnifying Party; provided that, in the case of the foregoing clause (b), the Indemnifying Party
shall continue to be obligated to defend the Indemnified Party with respect to that matter and to
otherwise make the payments required by this Article 13 until that dispute is finally adjudicated
by a court of competent jurisdiction and all rights to appeal with respect thereto have expired.
13.5 Prompt Payment. Any indemnity payable pursuant to this Article 13 shall be paid
within the later of 45 days of the Indemnified Party’s request therefor or five days before the
date on which the liability upon which the indemnity is based is required to be paid by the
Indemnified Party.
13.6 Subrogation. If the Indemnifying Party is obligated to indemnify the Indemnified
Party pursuant to this Article 13, the Indemnifying Party shall, upon payment of that indemnity in
full, be subrogated to all rights of the Indemnified Party with respect to the Losses to which that
indemnification relates; provided, however, that the Indemnifying Party shall only be subrogated to
the extent of any amount paid by it pursuant to this Article 13 in connection with such Loss. If a
refund or credit is received (whether through actual payment, offset, or otherwise) by a WT
Indemnitee in respect of Taxes with respect to which an indemnification payment hereunder has been
made by an Indemnifying Party to a WT Indemnitee, then the WT Indemnitee receiving such refund or
credit shall promptly pay the amount of such refund or credit (together with any interest thereon
from the relevant taxing authority) to the Indemnifying Party.
13.7 Purchase Price Adjustment. Any indemnification payment made pursuant to this
Agreement shall be treated as an adjustment to the Purchase Price for Tax purposes, unless
otherwise required by Applicable Law.
13.8 Calculation of Indemnity Payments.
(a) Each Indemnified Party agrees to use its commercially reasonable efforts to pursue and
collect on any recovery available under any insurance policies. The Parties agree that after the
Closing Date no Party shall have an obligation to maintain insurance other than (1) AST, which
shall maintain insurance against such losses and risks and in such amounts as are customary in the
type and size of business in which AST is engaged, and (2) the “tail”
56
directors’ and officers’
insurance coverage required to be maintained under Section 7.4. The amount of Losses payable under
this Article 13 by the Indemnifying Party shall be reduced by any and all amounts actually
recovered by the Indemnified Party under applicable insurance policies or from any other Person
alleged to be responsible therefor. If the Indemnified Party receives any amounts under
applicable insurance policies or from any other Person alleged to be responsible for any Losses
subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party
shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such
Indemnifying Party in connection with providing such indemnification up to the amount received by
the Indemnified Party, net of (A) any expenses incurred by such Indemnified Party in collecting
such amount, and (B) the estimated increase in any premiums payable by the Indemnified Party over
the remaining term of any applicable insurance policy.
(b) The amount of Losses incurred by an Indemnified Party shall be reduced to take account of
any net Tax benefit actually realized by the Indemnified Party arising from the circumstances
giving rise to such Loss.
(c) No Losses shall be determined or increased based on any multiple of any financial measure
(including earnings, sales, or other benchmarks) that might have been used by WT in the valuation
of AST.
13.9 Exclusive Remedy. From and after the Closing, except with respect to claims for
fraud or equitable relief, including, without limitation, specific performance made with respect to
breaches of any covenant or agreement contained in this Agreement or the other Transaction
Documents (the “Excluded Claims”), and except with respect to claims by WT against the Escrow
Amount, the rights provided to the Parties under this Article 13 (and the rights provided to WT
under Section 3.3 and the Escrow Agreement with respect to the Escrow Amount) shall be the sole and
exclusive remedies of the Parties and their respective Affiliates with respect to claims under this
Agreement or the other Transaction Documents or otherwise relating to the transactions contemplated
hereby. Without limiting the generality of the foregoing, other than in connection the Excluded
Claims, in no event shall any Party, its successors, or permitted assigns be entitled to claim or
seek rescission of the transactions contemplated by this Agreement.
ARTICLE 14
TERMINATION
14.1 Termination. This Agreement may be terminated:
(a) By the mutual consent of WT and all Sellers;
(b) By either WT or all Sellers, if the Closing has not been consummated by June 30, 2008
(the “Termination Date”); provided, however, that (1) the right to terminate this Agreement
pursuant to this Section 14.1(b) shall not be available to any Party whose breach of a
representation, warranty, covenant or agreement has been a cause or resulted in the failure of the
Closing to occur before such date, and (2) if the Parties are waiting for one or more regulatory
approvals to proceed with the Closing of the Transactions contemplated hereby,
57
then, without any
action required by any Party, the Termination Date shall be automatically extended for successive
30-day periods until those regulatory approvals are obtained, but in no event later than August
31, 2008;
(c) By either WT or all Sellers, if any Applicable Law makes consummation of the Transactions
illegal, or if any judgment, injunction, order, or decree enjoining any Party hereto from
consummating the Transactions is entered and that judgment, injunction, order, or decree becomes
final and nonappealable; provided, however, that the Party(ies) seeking to terminate this
Agreement pursuant to this Section 14.1(c) shall have used all reasonable efforts to remove such
judgment, injunction, order or decree;
(d) By WT if any of AST, Karfunkel, or any Seller (1) has materially breached any of its
representations or warranties in this Agreement and, with respect to a breach of the
representations and warranties in Article 4, such breach would reasonably be expected to have a
Material Adverse Effect on AST, or (2) has materially breached any of its covenants or obligations
under this Agreement, and in the case of (1) and (2) (if not a willful breach) AST, Karfunkel, or
any Seller (as applicable) has not cured such breach within ten (10) Business Days of receiving
written notice of such breach, provided that WT (A) has not materially breached any of its
representations or warranties in this Agreement, and (B) has performed and complied, in all
material respects, with its covenants and obligations required by this Agreement to have been
performed or complied with before that time; or
(e) By all Sellers, if WT (1) has breached any of its representations or warranties in this
Agreement and such breach would be reasonably expected to have a Material Adverse Effect on WT, or
(2) has materially breached any of its covenants or obligations under this Agreement, and in the
case of (1) and (2) (if not a willful breach) WT has not cured such breach within ten (10)
Business Days of receiving written notice of such breach, provided that each Seller, Xxxxxxxxx,
and AST (A) has not materially breached any of its representations or warranties in this
Agreement, and (B) has performed and complied, in all material respects, with its covenants and
obligations required by this Agreement to have been performed or complied with before that time.
14.2 Effect of Termination. If this Agreement is validly terminated pursuant to
Section 14.1, it shall become null and void immediately and there shall be no liability or
obligation to any Person in respect of the Agreement or of the Transactions on the part of any
Party, or a Party’s directors, officers, employees, agents, representatives, advisers,
stockholders, members, partners, or Affiliates, except that the provisions of Sections 10.2, 10.3,
and 14.2 and Article 15 shall remain in full force and effect and shall survive any termination of
this Agreement and
except that each Party shall remain liable for any willful breach of this Agreement prior to
its termination.
ARTICLE 15
MISCELLANEOUS
15.1 Interpretation. For the purposes hereof (a) words (including capitalized terms
defined herein) in the singular shall be deemed to include the plural and vice versa, and words of
58
one gender shall be deemed to include the other genders as the context requires, (b) the terms
“hereof,” “herein,” “herewith,” and words of similar import shall, unless otherwise stated, be
construed to refer to this Agreement as a whole (including all of the exhibits and schedules
hereto) and not to any particular provision of this Agreement, (c) all references to any period of
days shall be deemed to be to the relevant number of calendar days unless otherwise specified, (d)
any reference in this Agreement to “writing” or comparable expressions includes a reference to
facsimile transmissions or comparable means of communication, (e) references to this “Agreement”
shall be construed as a reference to this Agreement and references to any other agreement or
document shall be construed as a reference to such other agreement or document, in each case as the
same may have been, or may from time to time be, amended, varied, novated, or supplemented, and (f)
references to any statute or statutory provision include a reference to that statute or statutory
provision as amended, consolidated, or replaced from time to time (whether before or after the date
of this Agreement).
15.2 Waivers. Any waiver of any term or condition or of the breach of any covenant,
representation, or warranty in this Agreement in any one instance shall not operate as or be deemed
to be a further or continuing waiver of any other breach of that term, condition, covenant,
representation, or warranty or any other term, condition, covenant, representation, or warranty.
No failure or delay at any time to enforce or require performance of any provision hereof shall
operate as a waiver of or affect in any manner that Party’s right at a later time to enforce or
require performance of that provision or any other provision hereof. No such waiver, unless by its
own terms it explicitly provides to the contrary, shall be construed to effect a continuing waiver
of the provision being waived, and no such waiver in any instance shall constitute a waiver in any
other instance or for any other purpose or impair the right of the Party against whom that waiver
is claimed in all other instances or for all other purposes to require full compliance.
15.3 Modifications. Neither this Agreement (including the exhibits and schedules
hereto) nor any term hereof or thereof may be changed, amended, modified, waived, discharged, or
terminated except to the extent the same is evidenced in writing and duly executed by the Party
against whom enforcement of that change, waiver, discharge, amendment, termination or modification
is sought.
15.4 Governing Law; Consent to Jurisdiction. This Agreement shall be construed under
and governed by Delaware law, without giving effect to the choice or conflicts of law provisions
thereof. The Parties hereby agree to submit to the jurisdiction of the courts of the State of
Delaware and the courts of the United States of America located in Delaware in any action or
proceeding arising out of or relating to this Agreement.
15.5 Notices. (a) All notices, requests, demands, and other communications made in
connection with this Agreement shall be in writing and shall be (1) mailed by first-class,
registered or certified mail, return receipt requested, postage prepaid, (2) transmitted by hand
delivery, (3) mailed by Federal Express, or (4) sent by facsimile, addressed as follows:
59
(1) | If to WT, to: Wilmington Trust FSB Xxxxxx Square North 0000 Xxxxx Xxxxxx Xxxxxx Xxxxxxxxxx, XX 00000 Attention: Xxxxxxx X. Xxxxxxx XX, Executive Vice President |
||
with a copy to: Wilmington Trust FSB Xxxxxx Square North 0000 Xxxxx Xxxxxx Xxxxxx Xxxxxxxxxx, XX 00000 Attention: Xxxxxx X. Xxxxxxxxxxx, Esquire Secretary |
|||
(2) | If to the 2005 Xxxxxxx Xxxxxxxxx Grantor Retained Annuity Trust, to the address set forth for that trust on Schedule 15.5 | ||
with a copy to: Xxx Xxxxxx, Esq. 000 X 00xx Xx, Xxx 0X Xxx Xxxx, XX 00000 |
|||
(3) | If to Xxxxxx Xxxxxxxxx, to the address set forth for him on Schedule 15.5 | ||
with a copy to: Xxx Xxxxxx, Esq. 000 X 00xx Xx, Xxx 0X Xxx Xxxx, XX 00000 |
|||
(4) | If to Xxxxx Xxxxxxxxx, to the address set forth for her on Schedule 15.5 | ||
with a copy to: Xxx Xxxxxx, Esq. 000 X 00xx Xx, Xxx 0X Xxx Xxxx, XX 00000 |
60
(5) | If to Xxxx Xxxxxxxxx, to the address set forth for her on Schedule 15.5 |
with a copy to:
Xxx Xxxxxx, Esq.
000 X 00xx Xx, Xxx 0X
Xxx Xxxx, XX 00000
000 X 00xx Xx, Xxx 0X
Xxx Xxxx, XX 00000
(6) | If to Xxxxxxxxx, to the address set forth for him on Schedule 15.5 |
with a copy to:
Xxx Xxxxxx, Esq.
000 X 00xx Xx, Xxx 0X
Xxx Xxxx, XX 00000
000 X 00xx Xx, Xxx 0X
Xxx Xxxx, XX 00000
with a copy to:
Xxxxxx, Xxxxx & Bockius LLP
Xxx Xxxxxx, Xxxxx Xxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esquire
Xxx Xxxxxx, Xxxxx Xxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esquire
(7) | If to AST, to: |
AST Capital Trust Company of Delaware
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 000
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx, President
Attention: Xxxxxxx Xxxxxxxx, President
with a copy to:
Xxxxxx, Xxxxx & Xxxxxxx LLP
Xxx Xxxxxx, Xxxxx Xxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Xxx Xxxxxx, Xxxxx Xxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
or, in each case, such other address as may be specified in writing to the Party giving notice in
accordance with this Section 15.5.
All such notices, requests, demands and other communications shall be deemed to have been
received:
(1) If mailed by first-class, registered or certified mail, return receipt requested, postage
prepaid; on the third Business Day after mailing;
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(2) If transmitted by hand delivery, on the day of delivery;
(3) If mailed by Federal Express, on the Business Day after mailing; and
(4) If sent by facsimile and the transmitting Party receives a transmission receipt dated the
day of transmission in the recipient’s jurisdiction, on the next Business Day of transmission.
15.6 Assignability. Neither this Agreement nor any rights or obligations hereunder
shall be assignable by any Party to any other Person without the prior written consent of the other
Parties, except that WT may, with notice to the other Parties, assign any or all of its interests
in this Agreement and its rights and obligations hereunder to any Person directly or indirectly
wholly owned by WTC or one of its Affiliates. This Agreement shall be binding upon, enforceable
by, and inure to the benefit of the Parties hereto and their respective successors and permitted
assigns.
15.7 Captions and Sections; Schedule and Exhibit References. The captions in this
Agreement are for convenience only and shall not affect the construction or interpretation of any
term or provision hereof. Unless otherwise specified, references to a section, schedule or exhibit
in this Agreement are references to a section of, or schedule or exhibit to, this agreement.
15.8 Severability. The invalidity or unenforceability of any provision of this
Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in
all respects by interpreting that invalid or unenforceable provision as nearly to the original
meaning as possible so as to make it valid and enforceable or, if that is not possible or permitted
by Applicable Law, by omitting that invalid or unenforceable provision.
15.9 Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original but all of which together shall constitute one and the same
instrument. A signature page forwarded as a facsimile or electronic image for attachment to an
assembled document shall be deemed delivery of an original signature page.
15.10 No Third-Party Beneficiaries. Except as provided in (a) Sections 8.6, 8.7, and
8.8 (with respect to each Parties’ Affiliates), (b) Article 13 (with respect to indemnification),
and (c) Section 14.2 (with respect to the limitation of liability on termination of this
Agreement), nothing in this Agreement confers any rights on any Person except the Parties and their
successors and permitted assigns.
15.11 Integration. This Agreement (as it may be amended from time to time), together
with the other Transaction Documents executed by one or more of the Parties and delivered to the
other Parties in connection with this Agreement, constitute the entire agreement among the Parties
with respect to the subject matter hereof, and supersede all prior agreements and understandings,
oral or written, express or implied, with respect thereto.
15.12 Fees and Expenses. Except as otherwise provided in this Agreement, each Party
shall bear its own costs and expenses in connection with this Agreement and the Transactions,
including all legal, accounting, financial advisory, consulting and all other fees and expenses of
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third parties engaged by such Party, whether or not the Transactions are consummated. For the
avoidance of doubt, Sellers and Xxxxxxxxx shall jointly and severally bear all out-of-pocket costs
and expenses incurred by AST in connection with this Agreement and the Transactions, other than
AST’s ordinary course costs and expenses such as payment of compensation to its employees.
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IN WITNESS WHEREOF, the Parties have executed this Stock Purchase Agreement as of the date
first written above.
/s/ Xxxxxxx Xxxxxxxxx | (SEAL) | |||
Xxxxxxx Xxxxxxxxx, as Trustee of The 2005 | ||||
Xxxxxxx Xxxxxxxxx Grantor Retained Annuity Trust | ||||
/s/ Xxxx Xxxxxxxxx | (SEAL) | |||
Xxxx Xxxxxxxxx, as Trustee of The 2005 Xxxxxxx | ||||
Xxxxxxxxx Grantor Retained Annuity Trust | ||||
/s/ Xxxxxx Xxxxxxxxx | (SEAL) | |||
Xxxxxx Xxxxxxxxx | ||||
/s/ Xxxxx Xxxxxxxxx | (SEAL) | |||
Xxxxx Xxxxxxxxx | ||||
/s/ Xxxx Xxxxxxxxx | (SEAL) | |||
Xxxx Xxxxxxxxx | ||||
/s/ Xxxxxxx Xxxxxxxxx | (SEAL) | |||
Xxxxxxx Xxxxxxxxx | ||||
AST CAPITAL TRUST COMPANY OF DELAWARE |
||||
By: | /s/ Xxxxxxx Xxxxxxxx | |||
Name: | Xxxxxxx Xxxxxxxx | |||
Title: | President | |||
WILMINGTON TRUST FSB |
||||
By: | /s/ Xxxxxxx X. Xxxxxxx XX | |||
Name: | Xxxxxxx X. Xxxxxxx XX | |||
Title: | Executive Vice President | |||
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