EXHIBIT 2.3
PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
PREMIERE TECHNOLOGIES, INC.
AND
MERCHANDISING PRODUCTIONS, INC.
Dated as of April 2, 1997
TABLE OF CONTENTS
Page
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PARTIES.................................................................... 1
PREAMBLE................................................................... 1
ARTICLE 1 - PURCHASE AND SALE.............................................. 1
1.1 Purchase and Assumption...................................... 1
1.2 Purchase Price; Payment...................................... 1
1.3 Transfer Documents........................................... 1
1.4 Time and Place of Closing.................................... 1
ARTICLE 2 - [RESERVED]..................................................... 2
ARTICLE 3 - [RESERVED]..................................................... 2
ARTICLE 4 - [RESERVED]..................................................... 2
ARTICLE 5 - REPRESENTATIONS AND WARRANTIES OF MPI.......................... 2
5.1 Organization, Standing, and Power............................ 2
5.2 Authority of MPI; No Breach By Agreement..................... 2
5.3 Title........................................................ 2
5.4 Legal Proceedings............................................ 2
ARTICLE 6 - REPRESENTATIONS AND WARRANTIES OF PREMIERE..................... 3
6.1 Organization, Standing, and Power............................ 3
6.2 Authority; No Breach By Agreement............................ 3
ARTICLE 7 - [RESERVED]..................................................... 4
ARTICLE 8 - ADDITIONAL AGREEMENTS.......................................... 4
8.1 Agreement as to Efforts to Consummate........................ 4
8.2 Investigation and Confidentiality............................ 4
8.3 Press Releases............................................... 4
ARTICLE 9 - CONDITIONS PRECEDENT TO OBLIGATIONS TO
CONSUMMATE................................................................. 5
9.1 Conditions to Obligations of Each Party...................... 5
9.2 Conditions to Obligations of Premiere........................ 5
9.3 Conditions to Obligations of MPI............................. 6
ARTICLE 10 - [RESERVED].................................................... 7
ARTICLE 11 - TERMINATION................................................... 7
11.1 Termination.................................................. 7
11.2 Effect of Termination........................................ 7
ARTICLE 12 - MISCELLANEOUS................................................. 8
12.1 Definitions.................................................. 8
12.2 Expenses..................................................... 12
12.3 Brokers and Finders.......................................... 12
12.4 Entire Agreement............................................. 12
12.5 Amendments................................................... 12
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12.6 Waivers....................................................... 12
12.7 Assignment.................................................... 13
12.8 Notices....................................................... 13
12.9 Governing Law................................................. 14
12.10 Counterparts.................................................. 14
12.11 Captions; Articles and Sections............................... 14
12.12 Interpretations............................................... 14
12.13 Enforcement of Agreement...................................... 14
12.14 Severability.................................................. 15
12.15 Survival...................................................... 15
12.16 Further Assurances............................................ 15
SIGNATURES............................................................ 15
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PURCHASE AND SALE AGREEMENT
---------------------------
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made and
entered into as of April 2, 1997, by and between PREMIERE TECHNOLOGIES, INC.
("Premiere"), a Georgia corporation; and MERCHANDISING PRODUCTIONS, INC.
("MPI"), a Delaware corporation and wholly-owned subsidiary of AMWAY CORPORATION
("Amway"), a Michigan corporation
PREAMBLE
--------
This Agreement provides for the acquisition by Premiere or a wholly
owned subsidiary thereof of the limited partner interests held by MPI in Voice-
Tel Network Limited Partnership ("VTNLP"), a Delaware limited partnership.
Certain terms used in this Agreement are defined in Section 12.1 of
this Agreement.
NOW, THEREFORE, in consideration of the above and the mutual
warranties, representations, covenants, and agreements set forth herein, the
parties agree as follows:
ARTICLE 1
PURCHASE AND SALE
1.1 PURCHASE AND ASSUMPTION. Subject to the terms and conditions of
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this Agreement, on the Closing Date, Premiere, or a direct or indirect wholly-
owned Subsidiary of Premiere, will purchase from MPI, and MPI will sell, grant,
convey, assign, transfer and deliver to Premiere or its direct or indirect
wholly-owned Subsidiary, the limited partnership interest held by MPI in VTNLP
(the "Partner Interest"), free and clear of all Liens, and Premiere or its
wholly owned subsidiary shall assume and perform from and after the Closing Date
all obligations of MPI in its capacity as a limited partner arising from and
after the Closing Date.
1.2 PURCHASE PRICE; PAYMENT. In consideration for the Partner
-----------------------
Interest, Premiere will pay to MPI on the Closing Date, Nine Million Two Hundred
Thousand Dollars ($9,200,000) (the "Purchase Price") in cash, by wire transfer
of immediately available funds to a bank account designated in writing by MPI.
1.3 TRANSFER DOCUMENTS. At the Closing, against payment of the
------------------
Purchase Price, MPI shall execute and deliver to Premiere or its direct or
indirect wholly-owned Subsidiary, such instrument or instruments of transfer or
assignment as Premiere shall reasonably request to convey to Premiere or its
Subsidiary the Partner Interest free and clear of all Liens.
1.4 TIME AND PLACE OF CLOSING. The closing of the transactions
-------------------------
contemplated hereby (the "Closing") will take place at such time and on such
date as the Parties, acting through
their authorized officers, may mutually agree. The Closing shall be held at the
offices of Xxxxxx & Bird LLP, Atlanta, Georgia, or at such other location as may
be mutually agreed upon by the Parties.
ARTICLE 2
[RESERVED]
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ARTICLE 3
[RESERVED]
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ARTICLE 4
[RESERVED]
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ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF MPI
-------------------------------------
MPI hereby represents and warrants to Premiere as follows:
5.1 ORGANIZATION, STANDING, AND POWER. MPI is a corporation duly
---------------------------------
organized, validly existing, and in good standing under the Laws of the State of
Delaware, and has the corporate power and authority to carry on its business as
now conducted and to own, lease and operate its Assets. A true, complete and
correct copy of the VTNLP partnership agreement, as currently in effect, is
attached hereto as Schedule 5.1.
5.2 AUTHORITY OF MPI; NO BREACH BY AGREEMENT. MPI has the corporate
----------------------------------------
power and authority necessary to execute, deliver, and perform its obligations
under this Agreement and to consummate the transactions contemplated hereby. The
execution, delivery, and performance of this Agreement and the consummation of
the transactions contemplated herein have been duly and validly authorized by
all necessary corporate action in respect thereof on the part of MPI. This
Agreement represents a legal, valid, and binding obligation of MPI, enforceable
against MPI in accordance with its terms (except in all cases as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, receivership, conservatorship, moratorium, or similar Laws
affecting the enforcement of creditors' rights generally and except that the
availability of the equitable remedy of specific performance or injunctive
relief is subject to the discretion of the court before which any proceeding may
be brought).
5.3 TITLE. MPI has good and marketable title to the Partner
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Interest, free and clear of all Liens.
5.4 LEGAL PROCEEDINGS. There is no Litigation instituted or pending,
-----------------
or, to the Knowledge of MPI, threatened (or unasserted but considered probable
of assertion and which if
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asserted would have at least a reasonable probability of an unfavorable outcome)
against MPI or any Affiliate of MPI that could have a material adverse effect on
the Partner Interest or the ability of MPI to consummate the transaction
contemplated hereby, or against the Partner Interest, nor are there any Orders
of any Regulatory Authorities, other governmental authorities, or arbitrators
outstanding against MPI or any Affiliate of MPI that could have a material
adverse effect on the Partner Interest or the ability of MPI to consummate the
transaction contemplated hereby.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF PREMIERE
------------------------------------------
Premiere hereby represents and warrants to MPI as follows:
6.1 Organization, Standing, and Power. Premiere is a corporation
---------------------------------
duly organized, validly existing, and in good standing under the Laws of the
State of Georgia, and has the corporate power and authority to carry on its
business as now conducted and to own, lease and operate its Assets. Premiere is
duly qualified or licensed to transact business as a foreign corporation in good
standing in the States of the United States and foreign jurisdictions where the
character of its Assets or the nature or conduct of its business requires it to
be so qualified or licensed, except for such jurisdictions in which the failure
to be so qualified or licensed is not reasonably likely to have, individually or
in the aggregate, a Premiere Material Adverse Effect.
6.2 AUTHORITY; NO BREACH BY AGREEMENT.
---------------------------------
(a) Premiere has the corporate power and authority necessary to
execute, deliver and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby. The execution, delivery
and performance of this Agreement and the consummation of the
transactions contemplated herein have been duly and validly authorized
by all necessary corporate action in respect thereof on the part of
Premiere. This Agreement represents a legal, valid, and binding
obligation of Premiere, enforceable against Premiere in accordance with
its terms (except in all cases as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, receivership,
conservatorship, moratorium, or similar Laws affecting the enforcement
of creditors' rights generally and except that the availability of the
equitable remedy of specific performance or injunctive relief is subject
to the discretion of the court before which any proceeding may be
brought).
(b) Neither the execution and delivery of this Agreement by
Premiere, nor the consummation by Premiere of the transactions
contemplated hereby, nor compliance by Premiere with any of the
provisions hereof, will (i) conflict with or result in a breach of any
provision of Premiere's Articles of Incorporation or Bylaws or any
resolution adopted by the board of directors or shareholders of Premiere
or any of its Subsidiaries, or (ii) constitute or result in a Default
under, or require any Consent pursuant to, or result in the creation of
any Lien on any Asset of any Premiere Entity under, any Contract or
Permit of any Premiere Entity, where such Default or Lien, or any
failure to obtain such Consent, is reasonably likely to have,
individually or in the aggregate, a Premiere Material Adverse Effect,
or,
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(iii) subject to receipt of the requisite Consents referred to in
Section 9.1(b), constitute or result in a Default under, or require any
Consent pursuant to, any Law or Order applicable to any Premiere Entity
or any of their respective material Assets.
ARTICLE 7
[RESERVED]
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ARTICLE 8
ADDITIONAL AGREEMENTS
---------------------
8.1 AGREEMENT AS TO EFFORTS TO CONSUMMATE. Subject to the terms and
---------------------------------------
conditions of this Agreement, each Party agrees to use, and to cause its
Subsidiaries to use, its 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 under applicable Laws to consummate and make effective, as soon as
reasonably practicable after the date of this Agreement, the transactions
contemplated by this Agreement, including using its reasonable efforts to lift
or rescind any Order adversely affecting its ability to consummate the
transactions contemplated herein and to cause to be satisfied the conditions
referred to in Article 9; provided, that nothing herein shall preclude either
Party from exercising its rights under this Agreement. Each Party shall use, and
shall cause each of its Subsidiaries to use, its reasonable efforts to obtain
all Consents necessary or desirable for the consummation of the transactions
contemplated by this Agreement.
8.2 INVESTIGATION AND CONFIDENTIALITY.
---------------------------------
(a) Prior to the Closing Date, each Party shall keep the other
Party advised of all material developments relevant to the consummation
of the transactions contemplated.
(b) Each Party shall, and shall cause its advisers and agents
to, maintain the confidentiality of all confidential information
furnished to it by the other Party concerning its and its Subsidiaries'
businesses, operations, and financial positions and shall not use such
information for any purpose except in furtherance of the transactions
contemplated by this Agreement. If this Agreement is terminated prior to
the Effective Time, each Party shall promptly return or certify the
destruction of all documents and copies thereof, and all work papers
containing confidential information received from the other Party.
8.3 PRESS RELEASES. Prior to the Closing Date, MPI and Premiere
---------------
shall consult with each other as to the form and substance of any press release
or other public disclosure materially related to this Agreement or any other
transaction contemplated hereby; provided, that nothing in this Section 8.3
shall be deemed to prohibit any Party from making any disclosure which its
outside counsel deems necessary or advisable in order to satisfy such Party's
disclosure obligations imposed by Law.
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ARTICLE 9
CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE
-------------------------------------------------
9.1 CONDITIONS TO OBLIGATIONS OF EACH PARTY. The respective
---------------------------------------
obligations of each Party to perform this Agreement and consummate the
transactions contemplated hereby are subject to the satisfaction of the
following conditions, unless waived by both Parties pursuant to Section 12.6:
(a) [RESERVED]
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(b) [RESERVED]
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(c) LEGAL PROCEEDINGS. No court or governmental or regulatory
-----------------
authority of competent jurisdiction shall have enacted, issued,
promulgated, enforced or entered any Law or Order (whether temporary,
preliminary or permanent) or taken any other action which prohibits,
restricts or makes illegal consummation of the transactions contemplated
by this Agreement.
(d) VTE/VTN MERGERS. Sub and VTE shall have consummated the
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VTE Merger, and Sub II and VTN shall have consummated the VTN Merger.
(e) MUTUAL RELEASES. MPI, on the one hand, and VTE, VTN and
---------------
VTNLP, on the other, shall have executed mutual releases reasonably
satisfactory to MPI, on the one hand, and VTE, VTN and VTNLP, on the
other; provided, however, that MPI shall not be required to release any
claims arising under the Amway Reseller Agreement.
9.2 CONDITIONS TO OBLIGATIONS OF PREMIERE. The obligations of
-------------------------------------
Premiere to perform this Agreement and consummate the transactions contemplated
hereby are subject to the satisfaction of the following conditions, unless
waived by Premiere pursuant to Section 12.6(a):
(a) REPRESENTATIONS AND WARRANTIES. For purposes of this
------------------------------
Section 9.2(a), the accuracy of the representations and warranties of
MPI set forth in this Agreement shall be assessed as of the date of this
Agreement and as of the Closing Date with the same effect as though all
such representations and warranties had been made on and as of the
Closing Date (provided that representations and warranties which are
confined to a specified date shall speak only as of such date). All
other representations and warranties of MPI contained in this Agreement
or any agreement, certificate or instrument entered into or delivered in
connection herewith shall be true and correct in all material respects.
(b) PERFORMANCE OF AGREEMENTS AND COVENANTS. Each and all of
---------------------------------------
the agreements and covenants of MPI to be performed and complied with
pursuant to this Agreement and the other agreements contemplated hereby
prior to the Closing Date shall have been duly performed and complied
with in all material respects.
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(c) CERTIFICATES. MPI shall have delivered to Premiere (i) a
------------
certificate, dated as of the Closing Date and signed on its behalf by
its chief executive officer and its chief financial officer, to the
effect that the conditions set forth in Section 9.1 as relates to MPI
and in Section 9.2(a) and 9.2(b) have been satisfied and (ii) certified
copies of resolutions duly adopted by MPI's Board of Directors
evidencing the taking of all corporate action necessary to authorize the
execution, delivery and performance of this Agreement, and the
consummation of the transactions contemplated hereby, all in such
reasonable detail as Premiere and its counsel shall request.
(d) OPINIONS OF COUNSEL. Premiere shall have received an
-------------------
opinion of counsel to MPI, dated as of the Closing, containing customary
opinions relating to organization, authority and enforceability.
9.3 CONDITIONS TO OBLIGATIONS OF MPI. The obligations of MPI to
--------------------------------
perform this Agreement and consummate the transactions contemplated hereby are
subject to the satisfaction of the following conditions, unless waived by MPI
pursuant to Section 12.6(b):
(a) REPRESENTATIONS AND WARRANTIES. For purposes of this
------------------------------
Section 9.3(a), the accuracy of the representations and warranties of
Premiere set forth in this Agreement shall be assessed as of the date of
this Agreement and as of the Closing Date with the same effect as though
all such representations and warranties had been made on and as of the
Effective Time (provided that representations and warranties which are
confined to a specified date shall speak only as of such date). The
representations and warranties of Premiere set forth in this Agreement
shall be true and correct in all material respects.
(b) PERFORMANCE OF AGREEMENTS AND COVENANTS. Each and all of
---------------------------------------
the agreements and covenants of Premiere to be performed and complied
with pursuant to this Agreement and the other agreements contemplated
hereby prior to the Closing Date shall have been duly performed and
complied with in all material respects.
(c) CERTIFICATES. Premiere shall have delivered to MPI (i) a
------------
certificate, dated as of the Effective Time and signed on its behalf by
its chief executive officer and its chief financial officer, to the
effect that the conditions set forth in Section 9.1 as relates to
Premiere and in Section 9.3(a) and 9.3(b) have been satisfied, and (ii)
certified copies of resolutions duly adopted by Premiere's Board of
Directors evidencing the taking of all corporate action necessary to
authorize the execution, delivery and performance of this Agreement, and
the consummation of the transactions contemplated hereby, all in such
reasonable detail as MPI and its counsel shall request.
(d) OPINION OF COUNSEL. MPI shall have received an opinion of
------------------
Xxxxxx & Bird LLP, counsel to Premiere, dated as of the Closing Date,
containing customary opinions relating to organization, authority and
enforceability..
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ARTICLE 10
[RESERVED]
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ARTICLE 11
TERMINATION
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11.1 TERMINATION. Notwithstanding any other provision of this
-----------
Agreement, this Agreement may be terminated at any time prior to the Closing
Date:
(a) By mutual consent of Premiere and MPI; or
(b) By either Party (provided that the terminating Party is
not then in material breach of any representation, warranty, covenant,
or other agreement contained in this Agreement) in the event of a
material breach by the other Party of any representation or warranty
contained in this Agreement which cannot be or has not been cured within
30 days after the giving of written notice to the breaching Party of
such breach; or
(c) By either Party (provided that the terminating Party is
not then in material breach of any representation, warranty, covenant,
or other agreement contained in this Agreement) in the event of a
material breach by the other Party of any covenant or agreement
contained in this Agreement which cannot be or has not been cured within
30 days after the giving of written notice to the breaching Party of
such breach; or
(d) By either Party (provided that the terminating Party is
not then in material breach of any representation, warranty, covenant,
or other agreement contained in this Agreement relating to Consents of
Regulatory Authority in the event any Consent of any Regulatory
Authority required for consummation of the transactions contemplated
hereby shall have been denied by final nonappealable action of such
authority or if any action taken by such authority is not appealed
within the time limit for appeal; or
(e) By either Party in the event that the Closing shall not
have occurred by June 30, 1997, if the failure to consummate the
transactions contemplated hereby on or before such date is not caused by
any breach of this Agreement by the Party electing to terminate pursuant
to this Section 11.1(e); or
(f) By either Party (provided that the terminating Party is
not then in material breach of any representation, warranty, covenant,
or other agreement contained in this Agreement) in the event that any of
the conditions precedent to the obligations of such Party to consummate
the transactions contemplated hereby cannot be satisfied or fulfilled,
or have not been waived in writing, by the date specified in Section
11.1(e).
11.2 EFFECT OF TERMINATION. In the event of the termination and
---------------------
abandonment of this Agreement pursuant to Section 11.1, this Agreement shall
become void and have no effect, except that (i) the provisions of this Section
11.2 and Article 12 and Section 8.6(b) shall survive any such
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termination and abandonment, and (ii) a termination pursuant to Sections
11.1(b), 11.1(c) or 11.1(f) shall not relieve the breaching Party from Liability
for an uncured willful breach of a representation or warranty or any breach of
any covenant or agreement contained in this Agreement, nor release the other
Party for any liability for any breach of any covenant or agreement contained in
this Agreement.
ARTICLE 12
MISCELLANEOUS
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12.1 DEFINITIONS.
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(a) Except as otherwise provided herein, the capitalized terms
set forth below shall have the following meanings:
"AFFILIATE" of a Person shall mean: (i) any other Person
directly, or indirectly through one or more intermediaries, controlling,
controlled by or under common control with such Person; (ii) any
officer, director, partner, employer, or direct or indirect beneficial
owner of any 10% or greater equity or voting interest of such Person; or
(iii) any other Person for which a Person described in clause (ii) acts
in any such capacity.
"AGREEMENT" shall mean this Purchase and Sale Agreement,
including the Exhibits delivered pursuant hereto and incorporated herein
by reference.
"AMWAY" shall mean Amway Corporation, a Michigan
corporation and the sole stockholder of MPI.
"AMWAY RESELLER AGREEMENT" shall mean the Services and
Reseller Agreement dated September 28, `1990, between Amway and
Voice-Tel Enterpises, Inc., as amended by First Amendment to Service and
Reseller Agreement dated March 19, 1996 and Second Amendment to Service
and Reseller Agreement dated June 25, 1996.
"ASSETS" of a Person shall mean all of the assets, properties,
businesses and rights of such Person of every kind, nature, character
and description, whether real, personal or mixed, tangible or
intangible, accrued or contingent, or otherwise relating to or utilized
in such Person's business, directly or indirectly, in whole or in part,
whether or not carried on the books and records of such Person, and
whether or not owned in the name of such Person or any Affiliate of such
Person and wherever located.
"CLOSING DATE" shall mean the date on which the Closing occurs.
"CONSENT" shall mean any consent, approval, authorization,
clearance, exemption, waiver, or similar affirmation by any Person
pursuant to any Contract, Law, Order, or Permit.
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"CONTRACT" shall mean any written or oral agreement, arrangement,
authorization, commitment, contract, indenture, instrument, lease,
obligation, plan, practice, restriction, understanding, or undertaking
of any kind or character, or other document to which any Person is a
party or that is binding on any Person or its capital stock, Assets or
business.
"DEFAULT" shall mean (i) any breach or violation of, default
under, contravention of, or conflict with, any Contract, Law, Order, or
Permit, (ii) any occurrence of any event that with the passage of time
or the giving of notice or both would constitute a breach or violation
of, default under, contravention of, or conflict with, any Contract,
Law, Order, or Permit, or (iii) any occurrence of any event that with or
without the passage of time or the giving of notice would give rise to a
right of any Person to exercise any remedy or obtain any relief under,
terminate or revoke, suspend, cancel, or modify or change the current
terms of, or renegotiate, or to accelerate the maturity or performance
of, or to increase or impose any Liability under, any Contract, Law,
Order, or Permit.
"EQUITY RIGHTS" shall mean all arrangements, calls, commitments,
Contracts, options, rights to subscribe to, scrip, understandings,
warrants, or other binding obligations of any character whatsoever
relating to, or securities or rights convertible into or exchangeable
for, shares of the capital stock of a Person or by which a Person is or
may be bound to issue additional shares of its capital stock or other
Equity Rights.
"EXHIBITS" A through B, inclusive, shall mean the Exhibits so
marked, copies of which are attached to this Agreement. Such Exhibits
are hereby incorporated by reference herein and made a part hereof, and
may be referred to in this Agreement and any other related instrument or
document without being attached hereto.
"KNOWLEDGE" as used with respect to a Person (including
references to such Person being aware of a particular matter) shall mean
the personal knowledge after due inquiry of those facts that are known
or should reasonably have been known after due inquiry and, as used with
respect to a Person that is a corporation or other business entity,
after due inquiry by the chairman, president, chief financial officer,
chief accounting officer, chief operating officer, general counsel, any
assistant or deputy general counsel, or any senior, executive or other
vice president of such Person and the knowledge of any such persons
obtained or which would have been obtained from a reasonable
investigation.
"LAW" shall mean any code, law (including common law), ordinance,
regulation, reporting or licensing requirement, rule, or statute
applicable to a Person or its Assets, Liabilities, or business,
including those promulgated, interpreted or enforced by any Regulatory
Authority.
"LIABILITY" shall mean any direct or indirect, primary or
secondary, liability, indebtedness, obligation, penalty, cost or expense
(including costs of investigation, collection and defense), claim,
deficiency, guaranty or endorsement of or by any Person (other than
endorsements of notes, bills, checks, and drafts presented for
collection or
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deposit in the ordinary course of business) of any type, whether
accrued, absolute or contingent, liquidated or unliquidated, matured or
unmatured, or otherwise.
"LIEN" shall mean any conditional sale agreement, default of
title, easement, encroachment, encumbrance, hypothecation, infringement,
lien, mortgage, pledge, reservation, restriction, security interest,
title retention or other security arrangement, or any adverse right or
interest, charge, or claim of any nature whatsoever of, on, or with
respect to any property or property interest, other than (i) Liens for
current property Taxes not yet due and payable, and (iii) Liens which do
not materially impair the use of or title to the Assets subject to such
Lien.
"LITIGATION" shall mean any action, arbitration, cause of action,
claim, complaint, criminal prosecution, governmental or other
examination or investigation, hearing, administrative or other
proceeding relating to or affecting a Party, its business, its Assets
(including Contracts related to it), or the transactions contemplated by
this Agreement.
"ORDER" shall mean any administrative decision or award, decree,
injunction, judgment, order, quasi-judicial decision or award, ruling,
or writ of any federal, state, local or foreign or other court,
arbitrator, mediator, tribunal, administrative agency, or Regulatory
Authority.
"PARTY" shall mean either MPI or Premiere, and "PARTIES" shall
mean both MPI and Premiere.
"PERMIT" shall mean any federal, state, local, and foreign
governmental approval, authorization, certificate, easement, filing,
franchise, license, notice, permit, or right to which any Person is a
party or that is or may be binding upon or inure to the benefit of any
Person or its securities, Assets, or business.
"PERSON" shall mean a natural person or any legal, commercial or
governmental entity, such as, but not limited to, a corporation, general
partnership, joint venture, limited partnership, limited liability
company, trust, business association, group acting in concert, or any
person acting in a representative capacity.
"PREMIERE MATERIAL ADVERSE EFFECT" shall mean an event, change or
occurrence which, individually or together with any other event, change
or occurrence, has a material adverse impact on (i) the financial
position, business, or results of operations of Premiere and its
Subsidiaries, taken as a whole, or (ii) the ability of Premiere to
perform its obligations under this Agreement or to consummate the Merger
or the other transactions contemplated by this Agreement, provided that
"Material Adverse Effect" shall not be deemed to include the impact of
(a) changes in Laws of general applicability or interpretations thereof
by courts or governmental authorities, (b) changes in generally accepted
accounting principles, (c) actions and omissions of Premiere (or any of
its Subsidiaries) taken with the prior informed written Consent of MPI
in contemplation of the transactions contemplated hereby, and (d) the
direct effects of compliance with this
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Agreement on the operating performance of Premiere, including expenses
incurred by Premiere in consummating the transactions contemplated by
this Agreement.
"REGULATORY AUTHORITIES" shall mean, collectively, the SEC, the
NASD, the Federal Trade Commission, the United States Department of
Justice, and all other federal, state, county, local or other
governmental or regulatory agencies, authorities (including self-
regulatory authorities), instrumentalities, commissions, boards or
bodies having jurisdiction over the Parties and their respective
Subsidiaries.
"VTE MERGER" shall mean the merger of PTEK Merger Corporation
with and into VTE pursuant to the VTE Merger Agreement.
"VTE MERGER AGREEMENT" shall mean the Agreement and Plan of
Merger of even data herewith among Premiere, Sub and VTE.
"MPI MATERIAL ADVERSE EFFECT" shall mean an event, change or
occurrence which, individually or together with another event, change or
occurrence, has a material adverse impact on (i) the financial position,
business, or results of operations of MPI and its Subsidiaries, taken as
a whole, or (ii) the ability of MPI to perform its obligations under
this Agreement or to consummate the transactions contemplated by this
Agreement, provided that "MPI Material Adverse Effect: shall not be
deemed to include the impact of (a) changes in Laws of general
applicability or interpretations thereof by courts or governmental
authorities, (b) changes in generally accepted accounting principles,
(c) actions and omissions of MPI (or any of its Subsdiaries) taken with
the prior and informed written Consent of Premiere in contemplation of
the transactions contemplated hereby, and (d) the direct effects of
compliance with this Agreement on the operating performance of MPI,
including expenses incurred by MPI in consummating the transactions
contemplated by this Agreement.
"VTN" shall mean VTN, Inc., an Ohio corporation and the sole
general partner of VTNLP.
"VTNLP" shall mean Voice-Tel Network Limited Partnership, a
Delaware limited partnership.
"VTN MERGER" shall mean the merger of PTEK Merger Corporation II
("Sub II") with and into VTN pursuant to the VTN Merger Agreement.
"VTN MERGER AGREEMENT" shall mean the Agreement and Plan of
Merger of even date herewith among Premiere, Sub II and VTN.
(b) The terms set forth below shall have the meanings ascribed
thereto in the referenced sections:
Closing Section 1.2
Premiere SEC Reports Section 6.5(a)
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(c) Any singular term in this Agreement shall be deemed to
include the plural, and any plural term the singular. Whenever the words
"include," "includes" or "including" are used in this Agreement, they shall be
deemed followed by the words "without limitation."
12.2 EXPENSES.
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(a) Except as otherwise provided in this Section 12.2, each of
the Parties shall bear and pay all direct costs and expenses incurred by it or
on its behalf in connection with the transactions contemplated hereunder,
including filing, registration and application fees, printing fees, and fees and
expenses of its own financial or other consultants, investment bankers,
accountants, and counsel.
(b) Nothing contained in this Section 12.2 shall constitute or
shall be deemed to constitute liquidated damages for the willful breach by a
Party of the terms of this Agreement or otherwise limit the rights of the
nonbreaching Party.
12.3 BROKERS AND FINDERS. Except for Xxxxxxxxx, Xxxxxxxx & Company as
-------------------
to Premiere, each of the Parties represents and warrants that neither it nor any
of its officers, directors, employees, or Affiliates has employed any broker or
finder or incurred any Liability for any financial advisory fees, investment
bankers' fees, brokerage fees, commissions, or finders' fees in connection with
this Agreement or the transactions contemplated hereby. In the event of a claim
by any broker or finder based upon his or its representing or being retained by
or allegedly representing or being retained by MPI or by Premiere, each of MPI
and Premiere, as the case may be, agrees to indemnify and hold the other Party
harmless of and from any Liability in respect of any such claim.
12.4 AGREEMENT. Except as otherwise expressly provided herein, this
---------
Agreement (including the documents and instruments referred to herein)
constitutes the entire agreement between the Parties with respect to the
transactions contemplated hereunder and supersedes all prior arrangements or
understandings with respect thereto, written or oral. Nothing in this Agreement
expressed or implied, is intended to confer upon any Person, other than the
Parties or their respective successors, any rights, remedies, obligations, or
liabilities under or by reason of this Agreement.
12.5 AMENDMENTS. To the extent permitted by Law, this Agreement may
----------
be amended by a subsequent writing signed by each of the Parties upon the
approval of each of the Parties.
12.6 WAIVERS.
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(a) Prior to or at the Closing Date, Premiere, acting through
its Board of Directors, chief executive officer or other authorized officer,
shall have the right to waive any Default in the performance of any term of this
Agreement by MPI, to waive or extend the time for the compliance or fulfillment
by MPI of any and all of its obligations under this Agreement, and to waive any
or all of the conditions precedent to the obligations of Premiere under this
Agreement,
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except any condition which, if not satisfied, would result in the violation of
any Law. No such waiver shall be effective unless in writing signed by a duly
authorized officer of Premiere.
(b) Prior to or at the Closing Date, MPI, acting through its
Board of Directors, chief executive officer or other authorized officer, shall
have the right to waive any Default in the performance of any term of this
Agreement by Premiere, to waive or extend the time for the compliance or
fulfillment by Premiere of any and all of its obligations under this Agreement,
and to waive any or all of the conditions precedent to the obligations of MPI
under this Agreement, except any condition which, if not satisfied, would result
in the violation of any Law. No such waiver shall be effective unless in writing
signed by a duly authorized officer of MPI.
(c) The failure of any Party at any time or times to require
performance of any provision hereof shall in no manner affect the right of such
Party at a later time to enforce the same or any other provision of this
Agreement. No waiver of any condition or of the breach of any term contained in
this Agreement in one or more instances shall be deemed to be or construed as a
further or continuing waiver of such condition or breach or a waiver of any
other condition or of the breach of any other term of this Agreement.
12.7 ASSIGNMENT. Except as expressly contemplated hereby, neither
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this Agreement nor any of the rights, interests or obligations hereunder shall
be assigned by any Party hereto (whether by operation of Law or otherwise)
without the prior written consent of the other Party. Subject to the preceding
sentence, this Agreement will be binding upon, inure to the benefit of and be
enforceable by the Parties and their respective successors and assigns.
12.8 NOTICES. All notices or other communications which are required
-------
or permitted hereunder shall be in writing and sufficient if delivered by hand,
by facsimile transmission, by registered or certified mail, postage pre-paid, or
by courier or overnight carrier, to the persons at the addresses set forth below
(or at such other address as may be provided hereunder), and shall be deemed to
have been delivered as of the date so delivered:
MPI: c/o Amway Corporation
0000 Xxxxxx Xxxxxx Xxxx
Xxx, Xxxxxxxx 00000-0000
Attention: Xxx Xxxxxxx
Copy to Counsel: Xxxxx, Day, Xxxxxx & Xxxxx
North Point
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
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Premiere: Premiere Technologies, Inc.
The Xxxxx Xxxxxxxx, Xxxxx 000
0000 Xxxxxxxxx Xxxx, XX
Xxxxxxx, Xxxxxxx 00000
Telecopy Number: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, President
Copy to Counsel: Xxxxxx & Bird LLP
One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Telecopy Number: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
12.9 GOVERNING LAW. This Agreement shall be governed by and
-------------
construed in accordance with the Laws of the State of Georgia, without regard to
any applicable conflicts of Laws.
12.10 COUNTERPARTS. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
12.11 CAPTIONS; ARTICLES AND SECTIONS. The captions contained in this
-------------------------------
Agreement are for reference purposes only and are not part of this Agreement.
Unless otherwise indicated, all references to particular Articles or Sections
shall mean and refer to the referenced Articles and Sections of this Agreement.
12.12 INTERPRETATIONS. Neither this Agreement nor any uncertainty or
---------------
ambiguity herein shall be construed or resolved against any party, whether under
any rule of construction or otherwise. No party to this Agreement shall be
considered the draftsman. The parties acknowledge and agree that this Agreement
has been reviewed, negotiated, and accepted by all parties and their attorneys
and shall be construed and interpreted according to the ordinary meaning of the
words used so as fairly to accomplish the purposes and intentions of all parties
hereto.
12.13 ENFORCEMENT OF AGREEMENT. The Parties hereto agree that
------------------------
irreparable damage would occur in the event that any of the provisions of this
Agreement was not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that the Parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any court of the United
States or any state having jurisdiction, this being in addition to any other
remedy to which they are entitled at law or in equity.
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12.14 SEVERABILITY. Any term or provision of this Agreement which is
------------
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
12.15 SURVIVAL. All representations, warranties and agreements
--------
contained in this Agreement or in any certificate delivered pursuant to this
Agreement shall survive the Closing notwithstanding any investigation conducted
with respect thereto or any knowledge acquired as to the accuracy or inaccuracy
of any such representation or warranty.
12.16 FURTHER ASSURANCES. MPI will, at any time and from time to time
after the Closing Date, upon the request of Premiere, do, execute, acknowledge
and deliver, or will cause to be done, executed, acknowledged and delivered, all
such further acts, deeds, assignments, transfers, conveyances, powers of
attorney, receipts, acknowledgments, acceptances and assurances as may be
reasonably required to procure for Premiere any and all of the rights to the
Partner Interest purchased by Premiere hereunder.
IN WITNESS WHEREOF, each of the each of the other Parties has caused
this Agreement to be executed on its behalf by its duly authorized officers as
of the day and year first above written.
PREMIERE TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------
Its: Senior Vice President
MARKETING PRODUCTIONS, INC.
By: /s/ Xxx Xxxxxxx
-----------------------------
Its: Authorized Agent
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