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EXHIBIT 10.6
SECURITIES PURCHASE AGREEMENT
AMONG
GLOBAL RESERVATION SYSTEMS, INC.
AND
PRECISION RESPONSE CORPORATION
DATED: AS OF JUNE 15, 1999
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SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (this "AGREEMENT") is made
as of the 15th day of June, 1999, by and between PRECISION RESPONSE CORPORATION,
a Florida corporation (the "INVESTOR") and GLOBAL RESERVATION SYSTEMS, INC., a
California corporation (the "COMPANY").
W I T N E S S E T H
WHEREAS, the Investor desires to acquire from the Company, and
the Company desires to issue to the Investor, in the aggregate, 6,000,000 Shares
(as defined herein) for an aggregate purchase price equal to $1,500,000 (the
"PURCHASE PRICE") (which Purchase Price includes the $400,000 (the "INITIAL
PAYMENT") previously paid to the Company by the Investor) (the "SHARE
PURCHASE");
WHEREAS, the Investor desires to acquire from the Company, and
the Company desires to issue to the Investor, a warrant (the "WARRANT"), as
provided in the Common Stock Purchase Warrant annexed hereto as EXHIBIT A, to
purchase 3,000,000 Shares on the terms provided herein and in the Common Stock
Purchase Warrant (the "WARRANT PURCHASE" and, together with the Share Purchase,
the "TRANSACTION");
NOW, THEREFORE, in consideration of the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
ARTICLE I
DEFINITIONS
The following terms, as used herein, have the following
meanings:
"AFFILIATE" shall mean, with respect to any Person, any of (a)
a director or executive officer of such Person, (b) a spouse parent, sibling or
descendant of such Person (or spouse, parent, sibling or descendant of any
director or executive officer of such Person) and (c) any other Person that,
directly or indirectly, controls or is controlled by or is under common control
with such Person, including, without
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limitation, investment partnerships or funds that are sponsored, managed or
controlled, directly or indirectly, by such Person or its Affiliates.
"AGREEMENT" has the meaning set forth in the initial paragraph
hereof.
"BROKER" has the meaning set forth in Section 6.1 hereof.
"CLAIM" has the meaning set forth in Section 5.3(b) hereof.
"CLAIM NOTICE" has the meaning set forth in Section 5.3(b)
hereof.
"CLOSING" has the meaning set forth in Section 2.2 hereof.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMPANY" has the meaning set forth in the initial paragraph
hereof.
"COMPANY GROUP" has the meaning set forth in Section 5.2(c)
hereof.
"CONSENT" has the meaning set forth in Section 4.5 hereof.
"DAMAGES" has the meaning set forth in Section 5.2(a) hereof.
"DEFAULT" has the meaning set forth in Section 4.5 hereof.
"FINANCIAL STATEMENTS" has the meaning set forth in Section
4.8 hereof.
"GAAP" has the meaning set forth in Section 4.8 hereof.
"GOVERNING DOCUMENTS" means such corporation's articles or
certificate of incorporation, by-laws and any applicable authorizing
resolutions, and any amendments or modifications of any of the foregoing.
"GOVERNMENTAL AUTHORITY" means any federal, state, local or
foreign court, tribunal, governmental department, agency, board or commission,
regulatory authority, or other governmental body, subdivision or
instrumentality.
"INDEMNIFIED PARTY" or "INDEMNIFIED PARTIES" have the meanings
set forth in Section 5.3(a) hereof.
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"INDEMNIFYING PARTY" has the meaning set forth in Section
5.3(b) hereof.
"INDEMNITY PERIOD" has the meaning set forth in Section 5.1
hereof.
"INTELLECTUAL PROPERTY" has the meaning set forth in Section
4.16(a) hereof.
"INVESTOR" has the meaning set forth in the initial paragraph
hereof.
"INVESTOR GROUP" has the meaning set forth in Section 5.2(a)
hereof.
"LAW" means any law, statute, regulation, code or order of any
federal, state or local governmental authority or agency.
"LICENSE AGREEMENTS" has the meaning set forth in Section
4.16(c) hereof.
"LIENS" has the meaning set forth in Section 2.1 hereof.
"LOSSES" means any and all assessments, liabilities, losses,
fines, penalties, costs, damages and expenses (including, without limitation,
reasonable attorneys' and accountants' fees and expenses).
"MATERIAL ADVERSE EFFECT" has the meaning set forth in Section
4.1 hereof.
"NOTICE PERIOD" has the meaning set forth in Section 5.3(b)
hereof.
"PERSON" means and includes any individual, corporation,
partnership (limited or general), limited liability company, joint venture,
association, trust, Governmental Authority and any other unincorporated
organization or entity.
"PROPRIETARY SOFTWARE" has the meaning set forth in Section
4.16(c) hereof.
"PURCHASE PRICE" has the meaning set forth in the recitals
hereto.
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"REGISTRATION RIGHTS AGREEMENT" means the agreement relating
to the registration under the Securities Act of the securities acquired by the
Investor hereunder.
"REPRESENTATIVES" has the meaning set forth in Section 5.2(a)
hereof.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SHARE PURCHASE" has the meaning set forth in the recitals
hereto.
"SHARES" means the Company's shares of Common Stock, no par
value per share.
"SOFTWARE" has the meaning set forth in Section 4.16(a)
hereof.
"TAXES" shall mean all federal, state, local or foreign taxes,
assessments or other charges payable to or imposed by any Governmental
Authority, including, without limitation, income, estimated income, business,
occupation, franchise, gross receipts, profits, real property, personal
property, sales, use, transfer, gains, registration, value-added, alternative or
add-on minimum, commercial rent or withholding taxes, including any interest,
penalty or addition thereto, whether disputed or not.
"TAX RETURN" shall mean all federal, state, local and foreign
Tax returns, declarations, statements, reports, schedules, forms and information
returns and any amendments thereto.
"TRADE SECRETS" has the meaning set forth in Section 4.16(a)
hereof.
"TRANSACTION" has the meaning set forth in the recitals
hereto.
"TRANSACTION DOCUMENTS" means this Agreement, the Shareholders
Agreement, the Registration Rights Agreement [and the Master Services
Agreement].
"WARRANT PURCHASE" has the meaning set forth in the recitals
hereto.
"WARRANT" has the meaning set forth in the recitals hereto.
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"YEAR 2000 COMPLIANT" has the meaning set forth in Section
4.15 hereof.
ARTICLE II
PURCHASE AND SALE
Section 2.1 PURCHASE AND SALE OF SHARES AND WARRANT. Upon the terms and
conditions set forth herein, the Investor hereby agrees to purchase, and the
Company hereby agrees to issue 6,000,000 Shares and the Warrant, free and clear
of all liens, charges and encumbrances of any nature whatsoever ("LIENS") for an
aggregate purchase price equal to $1,500,000 (which Purchase Price includes the
Initial Payment). Pursuant to this Section, and as provided in the Common Stock
Purchase Warrant, the initial exercise price of the Warrant per Share shall
equal $0.85 (which price shall be subject to adjustment as specified in the
Common Stock Purchase Warrant).
Section 2.2 CLOSING. The Closing of the purchase and sale of the Shares
and Warrant (the "CLOSING") shall occur simultaneously with the execution and
delivery of this Agreement at the offices of Skadden, Arps, Slate, Xxxxxxx &
Xxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx.
Section 2.3 DELIVERIES AND PAYMENT. (a) At the Closing, the Company
shall deliver or cause to be delivered to the Investor the following documents,
in a form reasonably acceptable to the Investor:
(i) share certificates evidencing the Shares and a warrant
certificate evidencing the Warrant issued in the name of the Investor;
(ii) a receipt evidencing receipt of payment of the Purchase
Price from the Investor;
(iii) an executed counterpart of the Shareholders Agreement;
(iv) an executed counterpart of the Registration Rights
Agreement;
(v) the amendment to the By-laws of the Company attached
hereto as Exhibit A; and
(vi) such other documents as the Investor shall reasonably
request.
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(b) At the Closing, the Investor shall deliver or cause to be delivered
to the Company:
(i) the excess of the Purchase Price over the Initial Payment,
by wire transfer of immediately available funds to an account to be designated
by the Company in writing not later than one business day prior to the Closing;
(ii) an executed counterpart of the Shareholders Agreement;
(iii) an executed counterpart of the Registration Rights
Agreement; and
(iv) such other documents as the Company shall reasonably
request.
ARTICLE III
REPRESENTATIONS & WARRANTIES OF THE INVESTOR
The Investor hereby represents and warrants to the Company
that:
Section 3.1 AUTHORIZATION BY THE INVESTOR. The Investor has all
requisite power and authority and has full legal capacity and is competent to
execute, deliver and perform this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly and validly authorized,
executed and delivered by the Investor and, assuming the due authorization,
execution and delivery by the Company, is a valid and binding obligation of the
Investor, enforceable in accordance with its terms, except as the enforcement
hereof may be limited by bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws relating to or affecting the rights
and remedies of creditors or by general equitable principles (regardless of
whether such enforcement is considered in a proceeding in equity or at law).
Section 3.2 GOVERNMENTAL CONSENTS. Assuming the accuracy of Section
4.13, no consent, approval, order or authorization of, or registration,
qualification, designation, declaration or filing with, any Governmental
Authority is required on the part of the Investor in connection with the
execution and delivery of this Agreement or the transactions contemplated
hereby, except for filings, if any, required under the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as
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amended (the "HSR ACT") and such filings as shall have been made prior to and
shall be effective on and as of the Closing.
Section 3.3 INVESTMENT. The Shares and Warrant to be received by the
Investor hereunder shall be held by the Investor for investment purposes only,
for its own account and not with a view to or for sale in connection with any
distribution of the Shares or Warrant, and the Investor has no present intention
of selling, transferring or otherwise distributing the Shares or Warrant. The
Investor agrees that it will not offer, sell, transfer or assign its Shares or
Warrant or any interest therein in contravention of the Securities Act or any
state or federal law. The Investor has no contract, understanding, agreement or
arrangement with any Person or entity to sell, transfer or dispose of any or all
of the Shares or Warrant it will receive in accordance with the provisions
hereof.
Section 3.4 ACCREDITED INVESTOR. The Investor is an "accredited
investor" within the meaning of Regulation D under the Securities Act and has
knowledge and experience in financial and business matters such that it is
capable of evaluating the merits and risks of receiving and owning the Shares
and Warrant and the Investor is able to bear the economic risk of such
ownership. The Investor, by reason of the Investor's business or financial
experience, has the capacity to protect its own interests in connection with the
transaction. The Investor understands that the Shares and the Warrant have not
been registered under the Securities Act by reason of reliance upon certain
exemptions therefrom and that the reliance of the Company on such exemptions is
predicated upon among other things, the bona fide nature of the Investor's
investment intent as expressed herein.
Section 3.5 INVESTMENT RISK. The Investor (a) understands that the
purchase of the Shares and the Warrant represents a speculative and high risk
investment and that there are no assurances that the Company will be profitable
or have revenues in the future, (b) is aware of and has investigated the
Company's business, management and financial condition, and (c) has had access
to such other information about the Company as the Investor has deemed necessary
or desirable to reach an informed and knowledgeable decision to acquire the
Shares and the Warrant.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants, except as
otherwise set forth in the Company Disclosure Schedule attached hereto, that:
Section 4.1 ORGANIZATION AND QUALIFICATION. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of California and has full corporate power and authority to conduct
its business as presently conducted and as proposed to be conducted by it and to
enter into and perform this Agreement and to carry out the transactions
contemplated by this Agreement. The Company is duly qualified and in good
standing to do business as a foreign corporation in each jurisdiction where the
failure to be so qualified would have a material adverse effect on the business,
prospects, assets or condition (financial or otherwise) of the Company (a
"MATERIAL ADVERSE EFFECT"). The Company has furnished to the Investor true and
complete copies of its Articles of Incorporation and Bylaws, each as amended to
date and currently in effect.
Section 4.2 ISSUANCE, SALE AND DELIVERY OF SHARES AND WARRANT. The
Shares and Warrant to be purchased by the Investor from the Company have been
duly authorized for issuance and sale and, when the Shares are issued and
delivered by the Company and paid for by the Investor, and when Shares are
issued and delivered upon exercise of the Warrant, all such Shares, will be
validly issued and fully paid and nonassessable, free and clear of all Liens and
not issued in violation of any preemptive rights.
Section 4.3 AUTHORIZATION. Each of the Transaction Documents has been
duly authorized, executed and delivered by, and, assuming due authorization,
execution and delivery by the Investor, is a valid and binding agreement of the
Company, enforceable in accordance with its terms, except as the enforcement
hereof may be limited by bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws relating to or affecting the rights
and remedies of creditors or by general equitable principles (regardless of
whether such enforcement is considered in a proceeding in equity or at law).
Section 4.4 CAPITALIZATION. The authorized capital stock of the Company
consists of 50,000,000 shares of Common Stock, no par value per share and
25,000,000 shares of preferred stock, no par value per share (the "Preferred
Stock"). As of the date of this Agreement, there were (i) 25,733,250 shares of
Common Stock
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issued and outstanding, (ii) 6,065,391 outstanding options to purchase shares of
Common Stock pursuant to the Company's 1999 Equity Incentive Plan and (iii)
2,900,000 shares of Common Stock reserved for future issuances of options by the
Company (the shares issuable pursuant to (ii) and (iii), the "RESERVED
SECURITIES"). All of the outstanding shares of capital stock of the Company are
duly authorized, validly issued, fully paid and nonassessable and are not now in
violation of or subject to any preemptive rights. Except as set forth above or
in Schedule 4.4, and except for the transactions contemplated hereby, (i) there
are not authorized, issued, reserved for issuance or outstanding (A) any shares
of capital stock or other voting securities of the Company, (B) any securities
convertible into or exchangeable or exercisable for shares of capital stock or
other voting securities of the Company or any obligation of the Company to issue
any capital stock, partnership interests or other voting securities, or (C) any
warrants, calls, options or other rights to acquire from the Company, or any
obligation of the Company to issue, any capital stock, voting securities or
securities convertible into or exchangeable or exercisable for capital stock or
voting securities of the Company, (ii) there are no outstanding obligations of
the Company to repurchase, redeem or otherwise acquire any such securities or to
issue, deliver or sell, or cause to be issued, delivered or sold, any such
securities, (iii) the consummation of the transactions contemplated hereby will
not result in any anti-dilution type adjustment to any such securities and (iv)
the Company has not granted to any Person any registration rights with respect
to any shares of capital stock or other voting securities of the Company.
Schedule 4.4 sets forth the complete and accurate share register of the Company
as of the date hereof.
Section 4.5 SUBSIDIARIES, ETC. The Company has no Subsidiaries and does
not own or control, directly or indirectly, any shares of capital stock of any
other corporation or any interest in any partnership, joint venture or other
non-corporate business enterprise.
Section 4.6 CONSENTS AND APPROVALS; NO VIOLATIONS. (a) Except as set
forth in Schedule 4.6(a), neither the execution and delivery of this Agreement
nor the performance by the Company of its obligations hereunder will (i)
conflict with or result in any breach of an provision of the Articles of
Incorporation or Bylaws of the Company, (ii) result in a violation or breach of,
or default (or give rise to any right of termination, cancellation or
acceleration) or result in the creation of any Lien or require any consent of
another party under any of the terms, conditions or provisions of any note,
mortgage, letter of credit, other evidence of indebtedness, guarantee, license,
lease or agreement or similar instrument or obligation to which the Company is a
party or by which it or any of its assets may be bound or (iii) assuming that
the filings, registrations, notifications, authorizations, consents and
approvals referred to
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in subsection (b) below have been obtained or made, as the case may be, violate
any order, injunction, decree, statute, rule or regulation of any Governmental
Authority to which the Company is subject, excluding from the foregoing clauses
(ii) and (iii) such requirements, defaults, breaches, rights or violations that
would not individually, or in the aggregate, have a Material Adverse Effect on
the Company.
(b) No consent, approval, order or authorization of, or
registration, qualification, designation, declaration or filing with, or
notification to, any Governmental Authority is required on the part of the
Company in connection with the execution and delivery of this Agreement or the
transactions contemplated hereby, except for filings, if any, required under the
HSR Act and such filings as shall have been made prior to and shall be effective
on and as of the Closing.
Section 4.7 LITIGATION. There is no action, suit or administrative
proceeding, or governmental inquiry or investigation pending or, to the
knowledge of the Company, threatened against or involving the Company (or any of
its stockholders, officers or directors in connection with the business or
affairs of the Company), before any court, arbitrator or administrative or
governmental body, United States or foreign which (i) are criminal in nature or
(ii) are of any other nature and which, if adversely determined, present a
reasonable risk of having a Material Adverse Effect on the Company. As of the
date of this Agreement, there are no such actions, suits or administrative
proceedings, or governmental inquiries or investigations pending or, to the
knowledge of the Company, threatened challenging the validity or propriety of
the transactions contemplated by this Agreement. The Company is not subject to
any judgments, decrees, injunctions, or order of any court which have had or
present a reasonable risk of having a Material Adverse Effect on the Company.
Section 4.8 PERMITS. The Company possesses such valid and current
certificates, authorizations or permits issued by the appropriate state, federal
or foreign regulatory agencies or bodies necessary to conduct its business, and
the Company has not received any notice of proceedings relating to the
revocation or modification of, or non-compliance with, any such certificate,
authorization or permit which, individually or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, could reasonably be expected to
result in a Material Adverse Effect.
Section 4.9 FINANCIAL STATEMENTS. The Company has previously furnished
to the Investor the unaudited consolidated balance sheet of the Company and the
related statement of operations and cash flow as of April 30, 1999 (the
"Financial Statements"). The Financial Statements have been prepared from the
books and
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records of the Company and fairly present, in all material respects, the
financial position of the Company as of the respective dates thereof and the
results of operations of the Company for the fiscal years then ended and have
been prepared (including the notes thereto) in conformity with generally
accepted accounting principles ("GAAP") applied on a consistent basis, except as
otherwise noted therein.
Section 4.10 TAXES. (a) The Company has duly and timely filed all Tax
Returns required to be filed by it (except for the Tax Return for the year ended
1998 for which the Company has been granted an extension to file), and all such
Tax Returns are true, complete and correct. Except to the extent adequately
reserved for in accordance with generally accepted accounting principles and
reflected on the Company's Financial Statements, all Taxes due and payable by
the Company have been timely paid in full except where failure to so pay could
not, individually or in the aggregate, reasonably be expected to result in a
Material Adverse Effect. The Financial Statements reflect an adequate accrual or
reserve for all Taxes payable by the Company for all taxable periods and
portions thereof through the date of such Financial Statements.
(b) The Company has complied in all material respects with all
applicable Laws relating to the payment and withholding of Taxes (including,
without limitation, the withholding of Taxes pursuant to Sections 1441 and 1442
of the Code or similar provisions under any applicable foreign Laws) and have,
within the time and in the manner prescribed by applicable Laws, withheld from
employee wages all amounts required to be so withheld under all applicable Laws
other than those amounts that are not material, and have, within the time and
manner prescribed by applicable Laws, paid over to the proper Governmental
Authority all amounts so withheld.
(c) Except as set forth on Schedule 4.10, (i) no deficiencies
for any Taxes have been proposed, asserted or assessed (either in writing or
orally) against the Company, (ii) no Governmental Authority is conducting or
proposing to conduct an audit with respect to Taxes or any Tax Returns of the
Company, (iii) no extension or waiver of the statute of limitations with respect
to Taxes or any Tax Return has been granted by the Company, which remains in
effect, other than an extension resulting from the filing of a Tax Return after
its original due date in the ordinary course of business, (iv) the Company is
not a party to any agreement or arrangement to allocate, share or indemnify
another party for Taxes other than those agreements entered into in the ordinary
course of business, (v) there are no Liens for material Taxes upon the assets of
the Company, except for Liens for Taxes not yet due , (vi) no jurisdiction where
the Company does not file a Tax Return has asserted or
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otherwise made a claim that the Company is required to file a Tax Return for
such jurisdiction, (vii) no power of attorney has been granted by or with
respect to the Company with respect to any matter relating to Taxes, and (viii)
neither the Company nor any of its shareholders has ever filed (a) an election
pursuant to Section 1362 of the Code that the Company be treated as an S
corporation or (b) a consent pursuant to Section 341(f) of the Code relating to
collapsible corporations.
Section 4.11 ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as set forth
in Schedule 4.11, or as a result of the transactions contemplated by this
Agreement, since April 30, 1999, there have been no changes, events or
circumstances, which individually or in the aggregate has had or could
reasonably be expected to have a Material Adverse Effect.
Section 4.12 NO UNDISCLOSED LIABILITIES. Except as set forth in
Schedule 4.12, and except as to matters which, individually or in the aggregate
could not reasonably be expected to have a Material Adverse Effect, the Company
does not have, directly or indirectly, any liabilities or obligations, whether
accrued, absolute or contingent, other than (i) liabilities and obligations that
are reflected, accrued or reserved for or disclosed in the balance sheet of the
Company as of April 30, 1999 (or the notes thereto) and (ii) obligations
incurred in the ordinary course of business and consistent with past practice
since April 30, 1999.
Section 4.13 SECURITIES ACT COMPLIANCE. Assuming the accuracy of and
compliance with the representations, warranties and agreements of the Investor
set forth herein, it is not necessary in connection with the offer, sale and
delivery of the Shares or Warrant to the Investor in the manner contemplated by
this Agreement to register the Shares or Warrant under the Securities Act.
Section 4.14 FULL DISCLOSURE. The Company knows of no information or
facts that, individually or in the aggregate, have had or could reasonably be
expected to have a Material Adverse Effect which has not been disclosed to the
Investor in this Agreement, the exhibits hereto, or other written materials
furnished to the Investor. No representation or warranty by the Company in this
Agreement and no statement contained in any exhibit, disclosure schedule, or
certificate contemplated by this Agreement, when read together, contains or will
contain any materially untrue statement of material fact or omits or will omit
to state any material fact necessary, in light of the circumstances under which
it was made, in order to make the statements herein or therein not misleading.
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Section 4.15 YEAR 2000 COMPLIANCE. All software, whether embedded or
otherwise, owned, used, held for use or licensed for use by the Company is Year
2000 Compliant or is reasonably expected to be Year 2000 Compliant. As used in
this Agreement, "YEAR 2000 COMPLIANT" shall mean that software has the ability
to consistently and accurately handle date and time information before, on and
after January 1, 2000, without a material loss of functionality, including but
not limited to accepting date and time input, providing date and time output,
performing calculations on dates or portions of dates and comparing, sequencing,
storing and displaying dates (including all leap year considerations). The
"off-the-shelf" and "shrink-wrapped" software used by the Company states that
the software (x) provides data of any type that includes date information or
which is otherwise derived from, dependent on or related to date information
("Date Data") to the Company, (y) processes in any way Date Data for the
Company or (z) otherwise provides any material product or service to the Company
that is dependent on Year 2000 Compliance, that all of such entity's Date Data
and related software and systems that are used for, or on behalf of, the Company
are Year 2000 Compliant.
Section 4.16 INTELLECTUAL PROPERTY.
(a) As used herein, the term "Intellectual Property" means all
trademarks, service marks, trade names, Internet domain names, designs, logos,
slogans and general intangibles of like nature, together with goodwill,
registrations and applications relating to the foregoing; registered and
unregistered patents, copyrights (including registrations and applications for
any of the foregoing); computer programs, including any and all software
implementations of algorithms, models and methodologies whether in source code
or object code form, databases and compilations, including any and all data and
collections of data, all documentation, including user manuals and training
materials, related to any of the foregoing and the content and information
contained on any Web site (collectively, "Software"); confidential information,
technology, know-how, inventions, processes, formulae, algorithms, models and
methodologies (such confidential items, collectively "Trade Secrets") held for
use or used in the business of the Company as conducted as of Closing or as
presently contemplated to be conducted and any licenses to use any of the
foregoing.
(b) Schedule 4.16 (b) sets forth, for all Intellectual
Property owned by the Company, a complete and accurate list, of all U.S., state
and foreign: (i) patents and patent applications; (ii) trademark and service
xxxx registrations
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(including Internet domain name registrations), trademark and service xxxx
applications and material unregistered trademarks and service marks; and (iii)
copyright registrations, copyright applications and material unregistered
copyrights. The Company currently is listed in the records of the appropriate
U.S., state or foreign agency as the sole owner of record for each application
and registration listed on Schedule 4.16(b).
(c) Schedule 4.16(c) lists all Software which is owned by the
Company ("Proprietary Software"), and all agreements granting or obtaining any
right to use or practice any rights under any Intellectual Property, excluding
"shrink-wrapped" or "off-the-shelf" software, to which the Company is a party
or otherwise bound, as licensee or licensor thereunder, including, without
limitation, license agreements, settlement agreements and covenants not to xxx
(collectively, the "License Agreements").
(d) Except as set forth in Schedule 4.16(d):
(i) the Company owns or possesses adequate licenses
or other legal rights to all Intellectual Property, free and clear of all liens
or other encumbrances;
(ii) to the extent any Intellectual Property is
capable of registration, all Intellectual Property owned or to the best of the
Company's knowledge used by the Company has been duly maintained, is valid and
subsisting, in full force and effect and has not been cancelled, expired or
abandoned;
(iii) the Company has not received written notice
from any third party regarding any actual or potential infringement by the
Company of any intellectual property of such third party, and the Company has no
knowledge of any reasonable basis for such a claim against the Company;
(iv) the Company has not received written notice from
any third party regarding any assertion or claim challenging the validity of any
Intellectual Property owned or used by the Company and the Company has no
knowledge of any reasonable basis for such a claim;
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(v) the Company has not licensed or sublicensed its
rights in any Intellectual Property, or received or been granted any such
rights, other than pursuant to the License Agreements;
(vi) to the best of the Company's knowledge no third
party is misappropriating, infringing, diluting or violating any Intellectual
Property owned by the Company;
(vii) the License Agreements contain binding
obligations of the Company, enforceable in accordance with their terms, and to
the best of the Company's knowledge there exists no event or condition which
will result in a violation or breach of, or constitute a default by the Company
or the other party thereto, under any such License Agreement;
(viii) the Company takes all reasonable measures to
protect the confidentiality of its Trade Secrets including requesting third
parties having access thereto to execute written nondisclosure agreements. To
the best of the Company's knowledge, no Trade Secret of the Company has been
disclosed or authorized to be disclosed to any third party other than pursuant
to a written nondisclosure agreement that adequately protects the Company's
proprietary interests in and to such Trade Secrets;
(ix) the consummation of the transactions
contemplated hereby will not result in the loss or impairment of the Company
rights to own or use any of the Intellectual Property, nor will such
consummation require the consent of any third party in respect of any
Intellectual Property; and
(x) all Proprietary Software set forth in Schedule
4.16(c), was either developed (a) by employees of the Company within the scope
of their employment; (b) by independent contractors as "works-made-for-hire," as
that term is defined under Section 101 of the United States Copyright Act, 17
U.S.C. ss. 101, pursuant to written agreement; or (c) by third parties who have
assigned all of their rights therein to the Company pursuant to written
agreement. No former or present employees, officers or directors of the Company
retain any rights of ownership or use of the Proprietary Software, and no
employees or third parties who have developed or participated in the development
of the Proprietary Software have any claims to any moral rights therein.
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Section 4.17 XXXXX AGREEMENT. The Company has entered into a letter
agreement with Xxxxx X. Xxxxx dated as of March 5, 1999, as amended on May 20,
1999, which provides that Xx. Xxxxx is entitled to receive an option for 750,000
shares of Common Stock at an exercise price of $0.25 per share and an additional
option for 100,000 shares of Common Stock at an exercise price of $0.25 per
share in the event that the Investor exercises the Warrant. Except for the
options referred to in the preceding sentence, no warrants, options or other
securities convertible into shares of common stock have been issued, or are
issuable, to Xx. Xxxxx in connection with such letter agreement, as amended.
ARTICLE V
SURVIVAL; INDEMNIFICATION
Section 5.1 SURVIVAL PERIODS. All representations, warranties and
agreements of the parties contained in this Agreement shall survive the Closing
and shall apply with respect to claims asserted in writing prior to the first
anniversary of the date of this Agreement; PROVIDED, HOWEVER, that the
representations contained in Section 4.10 shall survive until the expiration of
the applicable statute of limitations and the representations contained in
Section 4.2 and 4.4 shall survive indefinitely. The agreements contained in this
Article V shall survive the Closing in accordance with their respective terms
and the agreements contained in Article VI shall survive the Closing
indefinitely.
Section 5.2 INDEMNIFICATION. Subject to the other provisions of this
Article V, from and after the Closing:
(a) The Company shall indemnify and hold harmless the Investor
and each of the Investor's Affiliates and their respective partners, directors,
officers, employees, representatives and agents and their respective successors
and assigns ("REPRESENTATIVES" and, together with the Investor, the "INVESTOR
GROUP") from and against any costs or expenses (including reasonable attorneys'
fees), judgments, fines, losses, claims and damages (collectively, "DAMAGES")
incurred or suffered by the members of the Investor Group which arise out of or
are the result of any breach of any representation or warranty made by the
Company under this Agreement.
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(b) The Company's obligations to indemnify the Investor Group
pursuant to Section 5.2(a) hereof with respect to a breach of a representation
or warranty made by the Company under this Agreement, are subject to the
following additional limitations:
(i) No Claim shall be made against the Company hereunder
unless the aggregate amount of Investor Group Damages claimed under Section
5.2(a) hereof exceeds $50,000 on a cumulative basis, it being understood that if
such threshold is met, then all Investor Group Damages may be claimed.
(ii) The aggregate indemnification obligations of the Company
under Section 5.2(a) hereof will not exceed the Purchase Price.
(iii) The Company shall be obligated to indemnify the Investor
Group only for those claims giving rise to Investor Group Damages as to which
the Investor Group has given the Company written notice thereof prior to the end
of the relevant indemnity period specified in Section 5.1. Any written notice
delivered by the Investor Group to the Company with respect to Investor Group
Damages shall set forth with as much specificity as is reasonably practicable
the basis of the claim for Investor Group Damages and, to the extent reasonably
practicable, a reasonable estimate of the amount thereof.
(iv) The Company's indemnity obligations hereunder with
respect to Investor Group Damages shall be calculated net of (i.e. after
deducting) any federal, state, and/or local income tax benefits, any insurance
proceeds and any third party payments by virtue of indemnification or
subrogation actually received by the Investor Group with respect to the subject
matter of a claim.
(c) The Investor shall indemnify and hold harmless the
Company, each of its Representatives and their respective successors and assigns
of any of the foregoing (collectively, the "COMPANY GROUP") from and against any
Damages incurred by the members of the Company Group which arise out of or are
the result of any breach of any representation or warranty made by the Investor
under this Agreement.
(d) The Investor's obligations to indemnify the Company Group
pursuant to Section 5.2(c) hereof with respect to a breach of a representation
or warranty made by the Investor under this Agreement, are subject to the
following additional limitations:
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(i) The Investor shall be obligated to indemnify the Company
Group only for those claims giving rise to Company Group Damages as to which the
Company Group has given the Investor written notice thereof prior to the end of
the relevant indemnity period. Any written notice delivered by the Company Group
to the Investor with respect to Company Group Damages shall set forth with as
much specificity as is reasonably practicable the basis of the claim for Company
Group Damages and, to the extent reasonably practicable, a reasonable estimate
of the amount thereof.
(ii) The Investor's indemnity obligations hereunder with
respect to Company Group Damages shall be calculated net of (i.e. after
deducting) any federal, state and/or local income tax benefits, any insurance
proceeds or third party payments by virtue of indemnification or subrogation
actually received by the Company Group with respect to the subject matter of a
claim.
(e) Subject to the limitations set forth in Section 5.2(b)
hereof, the Company hereby agrees, to indemnify, defend and hold harmless the
Investor Group, on an after-tax basis, from and against all claims, demands,
actions, causes of actions and Losses suffered or incurred by, or asserted
against, the Investor Group relating to or arising from any Taxes in respect of,
or measured by the income or gross receipts of any such entities for any period
prior to the Closing Date, including any penalties or interest with respect to
such Taxes.
The indemnity under this Section 5.2(e) shall survive
the Closing and continue in full force and effect until the expiration of the
applicable statutes of limitations.
Section 5.3 GENERAL PROCEDURES; THIRD PARTY CLAIMS.
(a) The members of the Investor Group, on the one hand, and
the members of Company Group, on the other hand, as the case may be, are
sometimes referred to herein individually as an "INDEMNIFIED PARTY" and
collectively as the "INDEMNIFIED PARTIES." All claims for indemnification by any
Indemnified Party hereunder shall be asserted and resolved as set forth in this
Section 5.3.
(b) In the event that any claim or demand by a Third Party for
which the Investor or the Company, as the case may be (an "INDEMNIFYING PARTY"),
may be
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liable to any Indemnified Party hereunder (a "CLAIM") is asserted against or
sought to be collected from any Indemnified Party by a Third Party, such
Indemnified Party shall as promptly as practicable notify the Indemnifying Party
in writing of such Claim and the amount or the estimated amount thereof to the
extent then feasible (which estimate shall not be conclusive of the final amount
of such Claim) (the "CLAIM NOTICE"); provided that failure to so notify an
Indemnifying Party shall not relieve it from liability except to the extent that
the Indemnifying Party is actually prejudiced by such failure to give notice.
The Indemnifying Party shall have thirty days from the personal delivery or
mailing of the Claim Notice (the "NOTICE PERIOD") to notify the Indemnified
Party (a) whether or not the Indemnifying Party disputes the liability of the
Indemnifying Party to the Indemnified Party hereunder with respect to such Claim
and (b) whether or not it desires to defend the Indemnified Party against such
Claim. All costs and expenses incurred by the Indemnifying Party in defending
such Claim and all costs incurred by the Indemnified Party during the Notice
Period shall be a liability of, and shall be paid by, the Indemnifying Party.
Except as hereinafter provided, in the event that the Indemnifying Party
notifies the Indemnified Party in writing within the Notice Period that it
acknowledges its indemnification obligation and desires to defend the
Indemnified Party against such Claim, the Indemnifying Party shall, at its sole
cost and expense, have the right to defend the Indemnified Party by appropriate
proceedings and shall have the sole power to direct and control such defense;
provided, that if the settlement or compromise of a claim does not include an
unconditional release of the Indemnified Party, then the Indemnifying Party
shall not settle or compromise any claim without the written consent of the
Indemnified Party. If any Indemnified Party desires to participate in any such
defense it may do so at its sole cost and expense unless, in the reasonable
judgment of the Indemnified Party, it is advisable to be represented by separate
counsel because a conflict or potential conflict exists between the Indemnifying
Party and the Indemnified Party which makes representation of both parties
inappropriate, in which case the reasonable fees of counsel for the Indemnified
Party shall be paid by the Indemnifying Party. The Indemnifying Party may, with
the consent of the Indemnified Party (which consent shall not be unreasonably
withheld), settle or compromise any action or consent to the entry of any
judgment that includes as a term thereof the delivery by the claimant or
plaintiff to the Indemnified Party of a duly executed written unconditional
release of the Indemnified Party from all liability in respect of such action.
Notwithstanding the foregoing, the Indemnified Party shall have the sole right
to defend, settle, or compromise any Claim with respect to which it has agreed
in writing to waive its right to indemnification pursuant to this Agreement.
Notwithstanding the foregoing, the Indemnified Party, during the period the
Indemnifying Party is determining
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whether to elect to assume the defense of a matter covered by this Section 5.3,
may take such reasonable actions as it deems necessary to preserve any and all
rights with respect to the matter, without such actions being construed as a
waiver of the Indemnified Party's rights to defense and indemnification pursuant
to this Agreement. If the Indemnifying Party elects not to defend the
Indemnified Party against such Claim, then the amount of any such Claim, or, if
the same be contested by the Indemnified Party, then that portion thereof as to
which such defense is unsuccessful (and the reasonable costs and expenses
pertaining to such defense) shall be the liability of the Indemnifying Party
hereunder. To the extent the Indemnifying Party shall direct, control, or
participate in the defense or settlement of any third-party claim or demand, the
Indemnified Party will give the Indemnifying Party and its counsel access to,
during normal business hours, the relevant business records and other documents,
and shall permit them to consult with the employees and counsel of the
Indemnified Party. The parties hereto shall each render to each other such
assistance as may reasonably be requested in order to ensure the proper and
adequate defense of any such claim or proceeding.
ARTICLE VI
MISCELLANEOUS
Section 6.1 BROKERS. Except as set forth on Schedule 6.1, each party
represents and warrants to the other that it has dealt with no broker, finder or
other Person (collectively, "BROKER") with respect to this Agreement or the
transactions contemplated hereby and that no Broker is entitled to a commission
as a result of this transaction.
Section 6.2 COMPLETE AGREEMENT. This Agreement (including the documents
and instruments referred to herein or executed concurrently herewith) represents
the entire agreement between the Investor and the Company covering everything
agreed upon or understood in this transaction and all other prior agreements,
written or oral, including any prior subscription agreements or letters, are
merged into this Agreement. There are no oral promises, conditions,
representations, understandings, interpretations or terms of any kind as
conditions or inducements to the execution hereof or in effect between the
parties.
Section 6.3 PARTIAL INVALIDITY. If any term, covenant or condition of
this Agreement is held to be invalid or unenforceable in any respect, such
invalidity or
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unenforceability shall not affect any other provision hereof, and this Agreement
shall be construed as if such invalid or unenforceable provision had never been
contained herein.
Section 6.4 MISCELLANEOUS. (a) All headings and sections of this
Agreement are inserted for convenience only and do not form part of this
Agreement or limit, expand or otherwise alter the meaning of any provisions
hereof.
(b) This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
shall constitute one and the same agreement. Facsimile signatures shall be
deemed effective execution of this Agreement and may be relied upon as such by
the other party.
(c) The provisions of this Agreement are intended to be for
the sole benefit of the parties hereto and their respective successors and
permitted assigns, and none of the provisions of this Agreement are intended to
be, nor shall they be construed to be, for the benefit of any Third Party.
Section 6.5 GOVERNING LAW; CONSENT TO JURISDICTION. THIS AGREEMENT
SHALL BE GOVERNED BY THE LAWS OF NEW YORK (REGARDLESS OF THE LAWS THAT MIGHT BE
APPLICABLE UNDER PRINCIPLES OF CONFLICTS OF LAW) AS TO ALL MATTERS, INCLUDING
BUT NOT LIMITED TO MATTERS OF VALIDITY, CONSTRUCTION, EFFECT AND PERFORMANCE.
Each of the parties hereto irrevocably and unconditionally submits to the
non-exclusive jurisdiction of The United States District Court for the Southern
District of New York or, if such court will not accept jurisdiction, the Supreme
Court of the State of New York or any court of competent civil jurisdiction
sitting in New York County, New York. In any action, suit or other proceeding,
each of the parties hereto irrevocably and unconditionally waives and agrees not
to assert by way of motion, as a defense or otherwise any claims that it is not
subject to the jurisdiction of the above courts, that such action or suit is
brought in an inconvenient forum or that the venue of such action, suit or other
proceeding is improper. Each of the parties hereto also agrees that any final
and unappealable judgment against a party hereto in connection with any action,
suit or other proceeding shall be conclusive and binding on such party and that
such award or judgment may be enforced in any court of competent jurisdiction,
either within or outside of the United States. A certified or exemplified copy
of such award or judgment shall be conclusive evidence of the fact and amount of
such award or judgment. THE PARTIES HERETO, HAVING CAREFULLY
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CONSIDERED THE ISSUE, AND HAVING SOUGHT AND OBTAINED THE ADVICE OF COUNSEL,
KNOWINGLY, INTENTIONALLY AND IRREVOCABLY WAIVE ANY RIGHT TO TRIAL BY JURY WITH
RESPECT TO ANY CLAIM OR PROCEEDING RELATED TO OR ARISING OUT OF THIS AGREEMENT
AND ANY OTHER AGREEMENT DELIVERED IN CONNECTION HEREWITH.
Section 6.6 EXPENSES. Each of the parties hereto shall bear its own
expenses (including fees and disbursements of its counsel, accountants and other
experts); PROVIDED, HOWEVER, THAT, if the transactions contemplated by this
Agreement are consummated, all costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby shall be paid by the
Company, including reasonable documented out-of-pocket expenses of the Investor.
Section 6.7 NOTICES. All notices and other communications required or
permitted to be given hereunder shall be in writing and shall be given by
personal delivery, by telegram, by United States registered or certified mail
(postage prepaid, return receipt requested) addressed as hereinafter provided or
via telephonic facsimile transmission. Notice shall be sent and deemed given
when (a) if personally delivered, then upon receipt by the receiving party, or
(b) if mailed, then three (3) days after being postmarked, or (c) if delivered
to a telegraph company office, then upon receipt by the receiving party of the
telegraph notice, or (d) if sent via telephonic facsimile transmission, then
upon receipt by a designated facsimile receiving device in the office of the
receiving party.
Any party listed below may change its address hereunder by notice to
the other party listed below. Until further notice, notice and other
communications hereunder shall be addressed to the parties listed below as
follows:
If to the Investor: Precision Response Corporation
0000 XX 000xx Xxxxxx
Xxxxx, XX 00000
Attention: General Counsel
Fax: (000) 000-0000
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With a copy to: Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxx, Esq.
Fax: (000) 000-0000
If to the Company to: Global Reservation Systems, Inc.
0000 Xxxxxxxxx Xxx
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxx
Fax: (000) 000-0000
With a copy to: Xxxxxxx Xxxxx & Xxxxx
Xxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx Won, Esq.
Fax: (000) 000-0000
Section 6.8 ASSIGNMENT. Neither this Agreement nor any rights which may
accrue to the Investor hereunder may be transferred or assigned without the
prior written consent of the Company.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the day first written above.
GLOBAL RESERVATION SYSTEMS, INC.
By: /s/ Xxxx X. Xxxxx
---------------------------------
Name: Xxxx X. Xxxxx
Title: President
PRECISION RESPONSE CORPORATION
By: /s/ Xxxx X. X'Xxxx
---------------------------------
Name: Xxxx X. X'Xxxx
Title: Executive Vice President
and Chief Financial Officer
