AGREEMENT
This Agreement (the "Agreement") is entered into as of the 19th day of
September, 1997, by and among Dispatch Management Services Corp., a Delaware
corporation and successor in interest to Dispatch Management Services LLC by
merger (the "Company"), Time Couriers LLC, a Massachusetts limited liability
company (the "Business Contribution Member"), Xxx Xxxxxxxx, Xxxxxxx Xxxxxxx,
Xxxxxxx Xxxxx, Xxxxx Xxxxxx, Xxxxxx Xxxxxxx, Xxxxxxxx Xxxxxx and Xxxxxxxxxxx
Xxxx (collectively, the "Shareholders") and [DMS Subsidiary Number ___], a
Delaware corporation that is wholly owned subsidiary of the Company (the
"Specific Company Subsidiary"). Unless defined herein, all capitalized terms
used in this Agreement shall have the meaning given them in the Operating
Agreement of Dispatch Management Services LLC dated December 1, 1996 by and
between the Members of Dispatch Management Services LLC, as amended (the
"Operating Agreement").
W I T N E S S E T H
WHEREAS, the Business Contribution Member is in the business of providing
dispatch and courier services (such business, and any other lines of business
related thereto, the "Business");
WHEREAS, the Shareholders own all of the issued and outstanding capital
stock of the Business Contribution Member;
WHEREAS, subject to the conduct of the due diligence examination to begin
following the execution of this Agreement, and further subject to the terms and
conditions set forth herein, the Business Contribution Member desires to sell to
the Company all the Business Contribution Member's right, title and interest in
and to the Assets (as defined in Section 1.2(a) below, and have the Company
assume the Assumed Liabilities (as defined in Section 1.2(b) below) for the
Purchase Price (as defined in Section 1.4 below);
WHEREAS, upon the satisfactory completion of the due diligence
examination, the delivery of the financial statements, schedules, disclosure
documents, questionnaires and other
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information required by this Agreement, and approval of the same by the Company,
the parties hereto will close in escrow pursuant to the terms and conditions set
forth herein;
WHEREAS, upon satisfaction of the conditions set forth herein, the escrow
will be terminated, and the sale of the Assets and assumption of the Assumed
Liabilities will be consummated;
WHEREAS, at Closing (as hereinafter defined) under this Agreement, the
Company will contribute to the Specific Company Subsidiary all of the Company's
right, title and interest in and to the Assets and have the Specific Company
Subsidiary assume the Assumed Liabilities, in exchange for 100% of the equity
ownership in the Specific Company Subsidiary;
WHEREAS, the Specific Company Subsidiary intends to enter into employment
agreements with [set forth names of back-office personnel being retained] (the
"Back-Office Employees"), in the form attached hereto as Exhibit A, as well as
non-competition agreements with each of the Shareholders of the Business
Contribution Member and certain employees of the Business Contribution Member
and the Specific Company Subsidiary in the form attached hereto as Exhibit B
(such employment agreements and non-competition agreements, together with all
other agreements which are entered into by the parties hereto pursuant to this
Agreement or in connection with any of the transactions contemplated hereby, the
"Related Agreements");
WHEREAS, the parties intend that at the Closing the Business Contribution
Member will change its corporate name and/or trade name, as necessary, so that
the Specific Company Subsidiary may trade under the trade name previously used
for the Business (which trade name is specifically acquired by the Specific
Company Subsidiary hereunder);
WHEREAS, the parties hereto desire to make certain representations,
warranties, covenants and agreements in connection with this Agreement.
NOW, THEREFORE, in consideration of the foregoing, the representations,
warranties, covenants and agreements herein contained, and for the sum of $10.00
paid by the Company to the Business Contribution Member and each Shareholder,
the receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
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1. Closing in Escrow
1.1. Overview. Upon execution of this Agreement, the Shareholders
and the Business Contribution Member shall be obliged to deliver to the Company,
within thirty (30) days after execution of this Agreement: (i) the audited
financial statements required pursuant to Section 1.4 below and (ii) the
agreements required pursuant to Section 3.1 below.
After approval of the same by the Company, and prior to filing the
registration statement with the Securities and Exchange Commission relating to
the initial public offering of the common stock, par value $.01 per share, of
the Company (the "Initial Public Offering"), the Company will deliver to the
Business Contribution Member and the Shareholders a disclosure document,
together with a notice (the "Notice") specifying the date by which the Business
Contribution Member and the Shareholders must execute and deliver satisfactory
representation letters in order to consummate the sale of the Assets and
assumption of the Assumed Liabilities pursuant to the terms of this Agreement.
Upon timely delivery from the Business Contribution Member and all
of the Shareholders of representation letters satisfactory to the Company, the
parties will close in escrow (the "Closing in Escrow") pursuant to the terms and
conditions of this Agreement. Such Closing in Escrow shall take place at the
offices of Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P., 0000 Xxx Xxxxxxxxx Xxxxxx,
X.X., Xxxxx 000, Xxxxxxxxxx, X.X. 00000 (or such other place as is mutually
agreed upon by the parties) within thirty (30) days (or such shorter period as
is specified in the Notice) after timely delivery of satisfactory representation
letters from the Business Contribution Member and the Shareholders.
In the event that the Business Contribution Member and/or one or
more of the Shareholders do not timely deliver satisfactory representation
letters (as determined in the sole discretion of the Company), this Agreement
will be of no further force or effect, except for any and all obligations under
Sections 3.2 (confidentiality), 1.4 (reimbursement of audit expenses) and 8.2
(effect of termination under Section 8.1), which obligations will survive
termination of this Agreement.
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1.2. Definitions.
(a) Definition of Assets. For purposes of this Agreement, the
term "Assets" shall mean and include the following assets of the Business
Contribution Member:
(i) Those agreed upon assets (including radio channels)
set forth on Exhibit C attached hereto;
(ii) All rights to the trade name "Time Couriers LLC", the
brand name "Time Couriers LLC", logos, and other Intellectual Property as
defined in Section 2.11.(d) hereinbelow, customer lists, goodwill and other
intangible assets; and
(iii) All rights, claims, and interests of the Business
Contribution Member, as of the Closing Date, under and with respect to agreed
upon contracts (the "Contracts"), as set forth on Exhibit D attached hereto.
To the extent that the assignment of the rights, claims and interests of
the Business Contribution Member under any of the Contracts requires the consent
of a third party (as set forth in Exhibit E hereto), and such third party's
consent to assignment is not secured prior to Closing hereunder, the parties
hereto shall use their best efforts to place the Specific Company Subsidiary in
a position to receive the benefits of the Business Contribution Member's rights,
claims and interest in such Contracts during the term of such Contracts. The
parties' efforts to this end shall be made in a lawful and commercially
reasonable manner.
(b) Definition of Assumed Liabilities. For purposes of this
Agreement, the term "Assumed Liabilities" shall mean and include:
(i) Those outstanding liabilities and obligations of the
Business Contribution Member, and only those liabilities and obligations, which
are set forth on Exhibit F attached hereto; and
(ii) Those liabilities and obligations of the Business
Contribution Member arising after the Closing Date under the express provisions
of the Contracts. For purposes of clarification, the Business Contribution
Member will be responsible for all taxes relating to the Business and/or the
Assets and/or the Assumed Liabilities payable or accrued for all periods up to
and including the Closing Date (whether or not such taxes were assessed before
or after the Closing Date).
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1.3. Closing in Escrow Deliveries and Other Actions.
(a) Deliveries at Closing in Escrow. In addition to the
execution and delivery of documents as and when otherwise required by the terms
of this Agreement, at the Closing in Escrow the Company and the Business
Contribution Member and/or the Shareholders shall, as appropriate, enter into,
execute and deliver to the law firm of Akin, Gump, Strauss, Xxxxx & Xxxx,
L.L.P., as escrow agent: (i) a xxxx of sale, (ii) an instrument of assignment
and assumption (the form and substance of which shall be reasonably acceptable
to the Company), and (iii) any other instruments of conveyance or transfer which
may be necessary in the sole discretion of the Company, including, without
limitation, any instruments of assignment in connection with the Intellectual
Property and the Contracts, each in form and substance reasonably acceptable to
the Company, pursuant to which the Business Contribution Member and/or the
Shareholders shall convey, assign, transfer and deliver to the Company all
right, title and interest in, to and under the Assets, free and clear of any and
all Encumbrances (as defined in Section 2.3(a) below), and the Company shall
assume the Assumed Liabilities from the Business Contribution Member. At the
Closing in Escrow, the Business Contribution Member shall also cause to be
delivered the opinion of its counsel as to such matters as counsel to the
Company may reasonably require, including but not limited to such counsel's
opinion that: the Business Contribution Member is in good standing; the Business
Contribution Member is authorized to conduct its business in each jurisdiction
in which it is doing business; the Business Contribution Member and the
Shareholders have full power to enter into and perform their respective
obligations under this Agreement, as well the Related Agreements to which they
are a party; this Agreement, and the Related Agreements to which the Business
Contribution Member and/or the Shareholders are a party, constitute legal, valid
and binding obligations of the Business Contribution Member and the
Shareholders, respectively, enforceable in accordance with their respective
terms (except as enforcement may be limited by bankruptcy, insolvency and other
similar laws affecting the enforcement of creditor's rights, and principles of
equity); and neither the Business Contribution Member nor any of the
Shareholders is threatened with or affected by any actions, proceedings or
investigations wherein an unfavorable decision, ruling or finding could have a
materially adverse effect on the financial condition or operation of the
Business
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and/or the Assets, or could prevent, enjoin or otherwise affect the transactions
contemplated by this Agreement.
(b) Further Actions. On and after the Closing in Escrow, the
parties hereto shall enter into, execute and deliver such other and further
agreements, documents and instruments, as any of them may reasonably request,
for the purpose of effectuating the transactions contemplated by this Agreement.
Without limiting the foregoing, the Business Contribution Member and/or the
Shareholders shall take whatever steps are necessary (such as filings with the
United States Patent and Trademark Office) to transfer the Intellectual Property
to the Specific Company Subsidiary.
(c) Consummation of Sale. Upon Closing in Escrow, subject to
the terms and conditions of this Agreement, the Company will be obligated to
purchase the Assets, and assume the Assumed Liabilities, and the Business
Contribution Member will be obliged to sell the Assets, subject to the Assumed
Liabilities, at the purchase price specified in Section 1.4 below, on the
Closing Date specified in Section 1.5 below.
1.4. Purchase Price. The purchase price for the Assets, subject to
downward adjustment for the full amount of the Assumed Liabilities as listed on
Exhibit F attached hereto (the "Purchase Price"), shall be $100,000 (the
"Initial Purchase Price") plus the amount required to be paid to the
Shareholders following the full eight-quarter period as set forth in this
Section 1.4.
The parties hereto agree to allocate the Purchase Price to the
Assets in accordance with the manner set forth on Schedule 1.4 attached hereto
and in accordance with the applicable provisions of Section 1060 of the Code
(the "Price Allocation"). Accordingly, each party to this Agreement shall adopt
and utilize such Price Allocation for purposes of all tax returns filed by them
and shall not voluntarily take any position inconsistent therewith in connection
with any examination of any tax return, any refund claim, any litigation
proceeding or otherwise. Each of the Company and the Business Contribution
Member shall file on a timely basis a Form 8594 in accordance with the
requirements of Section 1060 of the Code and the provisions of this Section 1.4.
In the event that the Price Allocation is disputed by an taxing authority, the
party receiving
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notice of the dispute shall promptly notify the other parties hereto of such
dispute and the parties hereto shall consult with each other concerning
resolution of the dispute.
Unless the Company gives the Shareholders and the Business
Contribution Member written notice to the contrary, the Shareholders and the
Business Contribution Member shall deliver to the Company, within thirty (30)
days after execution of this Agreement: (i) audited financial statements of the
Business, including balance sheets dated as of December 31, 1994, 1995 and 1996,
and income statements and cash flow statements for each of the three twelve
month periods ended on such dates; (ii) unaudited financial statements of the
Business, including a balance sheet dated as of June 30, 1996, and an income
statement and cash flow statement for the twelve month period ended on June 30,
1996; and (iii) unaudited, reviewed financial statements of the Business,
including a balance sheet dated as of June 30, 1997 and an income statement and
a cash flow statement for the six month period ended June 30, 1997. In the event
that the closing of the Initial Public Offering has not occurred on or before
November 12, 1997, but does occur on or before December 12, 1997, then in that
event, in lieu of the unaudited, reviewed financial statements of the Business
for the six month period ended June 30, 1997, the Shareholders and the Business
Contribution Member shall deliver to the Company, within thirty days after
written request from the Company: (i) an updated set of audited financial
statements of the Business, including a balance sheet dated as of June 30, 1997,
and income statements and cash flow statements for the six month period ended
June 30, 1997; (ii) unaudited financial statements for the Business, including a
balance sheet dated as of September 30, 1996, and an income statement and cash
flow statement for the twelve month period ended on September 30, 1996; and
(iii) unaudited, reviewed financial statements of the Business, including a
balance sheet dated as of September 30, 1997 and income statements and cash flow
statements for the three month period ended September 30, 1997. In the event
that the closing of the Initial Public Offering has not occurred on or before
December 12, 1997, then upon written request from the Company given on or before
March 1, 1998, the Shareholders and the Business Contribution Member shall
deliver to the Company, within thirty days after written request from the
Company, such additional audited and/or unaudited, reviewed financial statements
of the Business as the Company may reasonably request.
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All of the financial statements referred to in this Section 1.4
shall be prepared (or reviewed, as the case may be) by Price Waterhouse LLP. The
cost of providing all of the financial statements required by this Section 1.4,
within the prescribed time limits, shall be the sole responsibility of the
Business Contribution Member, provided that the Company will, upon the request
of the Business Contribution Member, advance such costs on behalf of the
Business Contribution Member. In the event that the Business Contribution Member
and/or one or more of the Shareholders do not timely deliver satisfactory
shareholder representation letters and complete the Closing in Escrow, the
Business Contribution Member and the Shareholders shall be jointly and severally
responsible for immediately refunding to the Company any such advanced costs; in
the event that all such representation letters are satisfactory and are timely
received, and the Closing in Escrow is completed, the Business Contribution
Member and the Shareholders shall be relieved of their obligation to refund to
the Company any such advanced costs.
The Company shall pay the Initial Purchase Price in (restricted)
stock of the Company (the "Company Stock") at the Closing. The number of shares
of Company Stock to be issued as payment of the Initial Purchase Price shall
equal $100,000 divided by the Initial Public Offering price per share as set
forth on the cover page of the Prospectus relating to the Initial Public
Offering (adjusted for stock splits, if any). The Shareholders acknowledge that
the sale of the Company Stock shall be restricted for a period of time by virtue
of a "lock-up" agreement which may be imposed by the Company, and the
Shareholders shall execute such a "lock-up" agreement, as may be required by the
Company, by which the sale of the Company Stock is restricted (perhaps
prohibited) for a period of two years from the date of the consummation of the
Initial Public Offering.
Within 30 days following the end of the eighth full fiscal quarter
immediately following the Initial Public Offering (such eight-quarter period is
referred to herein as the "Eight Quarter Period"), the Company agrees to issue
to the Shareholders the number of shares of Common Stock equal to $700,000
divided by the Initial Public Offering price per share (adjusted for stock
splits, if any), provided that the average monthly revenues of the Business
Contribution Member for such fiscal quarter was at least $100,000. If the
average monthly revenues of the
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Business Contribution Member for such fiscal quarter were less than $100,000,
the Company shall issue to the Shareholders the number of shares of Common Stock
equal to (a) the average monthly revenues of the Business Contribution Member
for such fiscal quarter divided by $100,000, multiplied by (b) $700,000 divided
by the Initial Public Offering price per share (adjusted for stock splits, if
any). In addition to the foregoing, if the average monthly revenues of the
Business Contribution Member for such fiscal quarter are greater than $100,000,
the Company shall issue to the Shareholders the number of shares of Common
Stock, calculated on the basis of the fair market value of such stock on the
last business day of such quarter, equal to (x) the average monthly revenues of
the Business Contribution Member for such fiscal quarter less $100,000,
multiplied by (y) seven.
At the request of the Shareholders made to the Company in writing at
any time after the first full fiscal quarter following the Initial Public
Offering, the Company shall make one or more loans to the Shareholders in an
aggregate amount equal to up to 50% of the Available Amount. For purposes of
this Section, "Available Amount" shall mean, at the time of the loan request,
(a) the highest average monthly revenues (but not exceeding $100,000) of the
Business Contribution Member in any full fiscal quarter in the Eight Quarter
Period divided by $100,000 multiplied by (b) $700,000 divided by the Initial
Public Offering price per share multiplied by the current value per share of the
Company Stock (adjusted for stock splits, if any) as reported on NASDAQ at the
date of the loan (the "Stock Value"). Said loan by the Company to the
Shareholder (the "Shareholder Loan") shall bear interest at a rate of seven
percent (7%) per annum, and shall be secured by all of the Company Stock paid as
part of the Delayed Purchase Price at the time such Company Stock is issued to
the Shareholders. The collateral security agreement evidencing the
collateralization of the Shareholder Loan with the Company Stock shall be on
such terms as are reasonably acceptable to the Company, which terms shall
include, but shall not be limited to, the retention of all of the Company Stock
by the Company until full repayment of the Shareholder Loan (including accrued
interest) and a requirement that at any time the Available Amount falls below
200% of the loan amount outstanding with the Shareholders, the Shareholders (x)
provide additional collateral to secure the Shareholder loan or (y) repay a
sufficient portion of the Shareholder loan. The Shareholder shall have the right
to
9
prepay the Shareholder Loan (plus accrued interest) at any time without penalty.
The Shareholder Loan shall mature as of the fourth anniversary of the
consummation of the Initial Public Offering. In the event that the Shareholder
Loan (including accrued interest) is not repaid in full upon maturity, the
Company shall enjoy all rights of a secured party under the Uniform Commercial
Code then in effect in the State of New York.
1.5. Time and Place of Closing. Unless this Agreement shall have
been terminated and the transactions herein contemplated shall have been
abandoned pursuant to Section 8.1., and subject to the satisfaction or waiver of
the conditions set forth in Section 7, the purchase and sale of the Assets,
subject to the Assumed Liabilities, pursuant to this Agreement (the "Closing")
shall take place at the offices of Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.,
0000 Xxx Xxxxxxxxx Xxxxxx, X.X., Xxxxx 000, Xxxxxxxxxx, X.X. 00000,
contemporaneously with the closing of the Reorganization Event unless the
Initial Public Offering unless the Initial Public Offering does not occur by
March 31, 1998, in which case this Agreement shall be rendered null and void, or
unless another date, time or place is agreed to in writing by the parties hereto
(the day on which the Closing takes place being the "Closing Date").
At the Closing: (i) Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P. shall
deliver to the Company the xxxx of sale, instruments of assignment and
assumption, transfer documents, and other documents and materials theretofore
held in escrow from the Closing in Escrow; (ii) the Business Contribution Member
and the Shareholders shall deliver to the Company updated certificates, dated
the Closing Date, required pursuant to Sections 7.2(a) and 7.2(b) below, and an
updated opinion of counsel as referred to in Section 1.3(a) above; and (iii) the
Company shall deliver the Initial Purchase Price to the Business Contribution
Member, which shall be payable to the Business Contribution Member pursuant to
the terms of Section 1.4 above, and with the Company Stock collateralized
against the Business Contribution Member Loan being delivered to the Company as
appropriate). At Closing, Company, Business Contribution Member, Shareholders
and Specific Company Subsidiary shall also take all additional steps as may be
necessary or appropriate to deliver the Assets to the Specific Company
Subsidiary, have the Specific Company Subsidiary assume the Assumed Liabilities,
and put the Specific Company Subsidiary in physical possession and operating
control of the Business and all of the Assets.
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2. Representations, Warranties and Covenants of the Business
Contribution Member and the Shareholders.
The Business Contribution Member and the Shareholders hereby jointly
and severally represent, warrant and covenant to the Company as follows:
2.1. Organization, Standing and Power. The Business Contribution
Member is a Limited Liability Corporation ("LLC") duly organized, validly
existing and in good standing under the laws of the State of Massachusettes, and
has all requisite corporate power and authority to own, lease and operate its
properties (including, without limitation, the Assets) and to carry on its
business as now being conducted (including, without limitation, the Business).
The Business Contribution Member is duly qualified and in good standing to
conduct business in each jurisdiction in which the business it is conducting
(including, without limitation, the Business), or the operation, ownership or
leasing of its properties (including, without limitation, the Assets), makes
such qualification necessary.
2.2. Authority and Enforceability.
(a) Matters Relating to the Business Contribution Member. The
Business Contribution Member has all requisite corporate power and authority to
execute and deliver this Agreement and each of the Related Agreements to which
it is a party and to perform fully its obligations hereunder and thereunder. The
execution and delivery of this Agreement, the Related Agreements and the
consummation of the transactions contemplated hereby and thereby have been duly
authorized by all necessary corporate action on the part of the Business
Contribution Member. This Agreement and each of the Related Agreements to which
the Business Contribution Member is a party has been duly executed and delivered
by the Business Contribution Member, and this Agreement and each of the Related
Agreements to which the Business Contribution Member is a party constitute the
legal, valid and binding obligations of the Business Contribution Member,
enforceable against the Business Contribution Member in accordance with their
respective terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights and remedies generally and subject, as to enforceability, to
general principles of equity (regardless of whether enforceability is considered
in a proceeding at law or in equity).
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(b) Matters Relating to the Shareholders. The Shareholders
have all requisite legal right, power and authority to enter into this Agreement
and each of the Related Agreements to which they are a party and to agree to the
transactions contemplated hereby and thereby and to perform all of their
respective obligations hereunder and thereunder. This Agreement and each of the
Related Agreements to which any of the Shareholders are a party constitute the
legal, valid and binding obligations of the Shareholders, enforceable against
the Shareholders in accordance with their respective terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights and remedies
generally and subject, as to enforceability, to general principles of equity
(regardless of whether enforceability is considered in a proceeding at law or in
equity).
2.3. Title to Assets; Condition.
(a) The Business Contribution Member owns beneficially and of
record, and has good and marketable title to, the Assets, free and clear of any
Encumbrances. For purposes of this Agreement, the term "Encumbrances" shall mean
restrictions, conditions, covenants, liens, easements, charges, encroachments or
any other matter affecting fee simple title (other than the Assumed
Liabilities).
(b) Upon consummation of the transactions contemplated at the
Closing, the Company will acquire good and marketable title to the Assets, free
and clear of any Encumbrances. All tangible assets conveyed hereunder are in
good working condition and repair, except for reasonable wear and tear.
2.4. Sufficiency of Assets. The Assets include substantially all the
assets and properties used or employed by the Business Contribution Member in
the Business as presently conducted. Immediately after giving effect to the
transfer of the Assets at Closing by the Business Contribution Member, and the
consummation of the other transactions contemplated pursuant to this Agreement
to be effected at the Closing, the Company will (i) have all right, title, and
interest in and to, or will have a valid right to use, without liability to
third party(ies), the Assets; and (ii) have all assets, rights, Back-Office
Employees, subcontractors and other persons and items which are reasonably
necessary to carry on the business and operations of the
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Business after the Closing Date in substantially the same manner as presently
conducted by the Business Contribution Member.
2.5. No Violations Resulting From Transactions. The execution and
delivery by the Business Contribution Member and the Shareholders of this
Agreement and each of the Related Agreements to which they are, respectively, a
party, and the consummation of the transactions contemplated hereby and thereby
by each of the Business Contribution Member and the Shareholders will not (a)
conflict with or violate any provision of the articles or certificate of
incorporation or by-laws of the Business Contribution Member, (b) except as set
forth in Exhibit E, require any consent, waiver, approval, authorization or
permit of, or filing with or notification to, any third party, (c) result in or
constitute a default, or require any consent or approval of or notice to any
person or entity, or result in the creation of an Encumbrance, under or pursuant
to (i) any of the Contracts, or (ii) any other material agreements to which the
Business Contribution Member and/or any of the Shareholders are a party, or (d)
violate any law applicable to the Business Contribution Member or any of the
Shareholders or by which any of the Assets is bound.
2.6. Compliance with Laws.
(a) The Business Contribution Member is, and at all times
during the past three years has been, in material compliance with all laws
applicable to the Business Contribution Member or to the conduct of the business
or operations of the Business Contribution Member or the Business or the use of
its properties (including any leased properties) and assets (including, without
limitation, the Assets); and
(b) The Business Contribution Member has not received, and
does not know of the issuance or threatened issuance by any governmental entity,
of any notices of violation or alleged violation of any law applicable to the
Business Contribution Member or the Business. The Business Contribution Member
has provided the Company with true and complete copies of (i) all injunctions,
judgments, orders or consent or similar decrees or agreements of any
governmental entity to which the Business Contribution Member or the Business is
currently subject (or which the Business Contribution Member or the Business was
subject to during the previous three years) or which are otherwise applicable to
the Business
13
Contribution Member or the Assets or to the conduct of the Business, and (ii)
all correspondence from the date hereof with respect to any of the matters
referred to in clause (b) or clause (i) of this Section 2.6. Neither the
Business Contribution Member nor any of the Shareholders is aware of any
proposed legislation or law which is reasonably expected to be enacted and
which, if so enacted, could reasonably be expected to have a material adverse
effect on either the Business or the Business Contribution Member.
2.7. Litigation. There is no action, suit, claim, investigation or
proceeding, whether at law or in equity (each, a "Legal Proceeding"), pending
or, to the knowledge of the Business Contribution Member and/or any of the
Shareholders, threatened that questions the validity of this Agreement or the
Related Agreements or any action taken or to be taken by the Business
Contribution Member or any of the Shareholders in connection with the
consummation of the transactions contemplated hereby or thereby or which seeks
to prohibit, enjoin or otherwise challenge any of the transactions contemplated
hereby or thereby. Exhibit H sets forth an accurate and complete list, and a
brief description (setting forth the names of the parties involved, the court or
other governmental or mediating entity involved, the relief sought and the
substantive allegations and the status thereof), of each Legal Proceeding
pending or, to the knowledge of the Business Contribution Member and/or any of
the Shareholders, threatened against or affecting the Business Contribution
Member, the Business or any of the Assets. To the knowledge of the Business
Contribution Member and/or any of the Shareholders, no event has occurred and no
circumstance, matter or set of facts exist which would constitute a valid basis
for the assertion by any third party of any claim or Legal Proceeding, other
than those listed on Exhibit H. Except as set forth in Exhibit H, there is no
outstanding or, to the knowledge of the Business Contribution Member and/or any
of the Shareholders, threatened judgment, injunction, order or consent or
similar decree or agreement (including, without limitation, any consent or
similar decree or agreement with any governmental entity) against, affecting or
naming the Business Contribution Member, the Business or any of the Assets.
2.8. Financial Advisors.
(a) Except as set forth on Exhibit I attached hereto, no
person or entity has acted directly or indirectly as a broker, finder or
financial advisor for or to the Business
14
Contribution Member and/or any of the Shareholders in connection with the
negotiations relating to or the transactions contemplated by this Agreement or
the Related Agreements; and
(b) Except as set forth on Exhibit I attached hereto, no
person or entity is entitled to any fee or commission or like payment, or
expense reimbursement, in respect thereof based in any way on agreements,
arrangements or understandings made by or on behalf of the Business Contribution
Member and/or any of the Shareholders. Such fees, commissions, like payments or
expense reimbursements as are described on Exhibit I attached hereto shall
remain liabilities and expenses of the Business Contribution Member and/or the
Shareholders exclusively, and are specifically excluded from the Assumed
Liabilities contemplated by this Agreement.
2.9. Financial Statements; Receivables. Attached hereto as Exhibit J
are true, correct and complete copies of the most recent unaudited financial
statements for the Business which, together with the financial statements
(including the notes and exhibits thereto), to be delivered to the Company
pursuant to Section 1.4 herein (the "Financial Statements") were and will be
prepared in accordance with the books and records of the Business, are and will
be complete and correct in all material respects, have and will have been
prepared in accordance with U.S. generally accepted accounting principles
("GAAP"), applied consistently with the past practices of the Business, except
where otherwise specifically noted therein, and present and will present fairly
in all material respects the financial position, results of operations and
changes in financial position or cash flows, whichever is applicable, of the
Business as at the dates and for the periods indicated (subject, in the case of
the unaudited financial statements, to normal year-end audit adjustments).
Without limiting the foregoing, no undisclosed liabilities or obligations of any
nature (whether known or unknown, or absolute, accrued, contingent or otherwise)
shall exist as at Closing in Escrow or the Closing not reflected in the
Business's most recently dated balance sheet supplied to the Company. The
Business Contribution Member has paid all federal, state and local income,
profits, franchises, sales, use, occupation, property, excise and payroll taxes,
and all license fees and other charges imposed upon it, and has timely filed all
tax returns and related documents required to be filed with any governmental
authority. There are no outstanding or proposed statements of deficiency in tax
payments to any federal, state, local or
15
foreign government with respect to the Business Contribution Member for any tax
period. As of the dates such Financial Statements were and will be prepared, all
accounts receivable reflected on the Financial Statements (i) have and will have
arisen from bona fide transactions in the ordinary course of the Business
Contribution Member's business, consistent with its past practices, and (ii) are
good and collectible at the aggregate recorded amounts thereof, net of any
applicable reserves for returns or doubtful accounts which are reflected in such
Financial Statements (such reserves, the "Reserves"); such Reserves are adequate
and reasonable and were established in accordance with GAAP.
2.10. Absence of Certain Developments.
(a) There has been no event, condition or state of facts of
any character that has had or is reasonably likely to have a material adverse
effect on the Assets or the Business.
(b) The Business Contribution Member has not entered into any
transaction or contract, or conducted its business, other than in the ordinary
course consistent with past practice.
2.11. Intellectual Property.
(a) List of Intellectual Property; Sufficiency. Exhibit K sets
forth a list of all Intellectual Property (as defined in Section 2.11.(d)
hereinbelow) which is owned by the Business Contribution Member, licensed by the
Business Contribution Member, licensed to the Business Contribution Member, or
otherwise used or able to be used in the Business (other than commonly-used
computer software which is generally available to the public and the use rights
to which were legally acquired by the Business Contribution Member either for
free or through established retail facilities) and indicates, with respect to
each item of Intellectual Property listed thereon, the owner thereof and, if
applicable, the name of the licensor and licensee thereof and the terms of such
license or other contract relating thereto. The Business Contribution Member
owns or has the lawful right to use all Intellectual Property as currently used
or as necessary for the conduct of the Business as now conducted. After Closing,
the Specific Company Subsidiary will have the right to use all of the
Intellectual Property as currently used or as necessary for the conduct of the
Business as now conducted.
16
(b) Title; Validity; Pending Applications; Infringements, Etc.
(i) Except for Intellectual Property licensed to the
Business Contribution Member, the Business Contribution Member has full legal
and beneficial ownership (free and clear of any and all Encumbrances) of all of
the Intellectual Property , and neither the Business Contribution Member nor any
of the Shareholders have received any notice or claim (whether written, oral or
otherwise) challenging the Business Contribution Member's ownership or rights in
such Intellectual Property or suggesting that any other entity has any claim of
legal or beneficial ownership with respect thereto; the Business Contribution
Member has all legal and other rights required to transfer the ownership of the
Intellectual Property to the Company at the Closing as contemplated hereby;
(ii) All of the Intellectual Property is legally valid and
enforceable without any qualification, limitation or restriction on its use, and
neither the Business Contribution Member nor any of the Shareholders has
received any notice or claim (whether written oral or otherwise) challenging the
validity or enforceability of any such Intellectual Property;
(iii) Neither the use of any of the Intellectual Property
nor any other Intellectual Property used by the Business Contribution Member
will conflict with, infringe upon, violate or interfere with or constitute an
appropriation of any right, title or interest held by any other person or
entity, and there have been no claims made with respect thereto;
(iv) No other person or entity is infringing in any
respect on any part of the Intellectual Property. The Business Contribution
Member has not conducted its business (including, without limitation, the
Business), and has not used or enforced (or failed to use or enforce) any
Intellectual Property, in a manner that would result in the abandonment,
cancellation or unenforceability of any item of Intellectual Property, and the
Business Contribution Member has not taken or failed to take any action that
would result in the forfeiture or relinquishment of any Intellectual Property
used in the conduct of its business as now conducted (including, without
limitation, the Business);
(v) Except as set forth in Exhibit K, the Business
Contribution Member has no liability or obligations to any third parties
incident to the Intellectual Property
17
used or able to be used by the Business Contribution Member in the conduct of
its business (including, without limitation, the Business) as heretofore
conducted; and
(vi) The Business Contribution Member has timely met all
of its obligations to any third parties incident to the Intellectual Property
used or able to be used by the Business Contribution Member in the conduct of
its business (including, without limitation, the Business) as heretofore
conducted, and such obligations have been and will be correctly and adequately
disclosed in the Financial Statements.
(c) Protection and Maintenance of Intellectual Property.
(i) The Business Contribution Member has taken all
reasonable steps to (x) protect the Business Contribution Member's rights to the
Intellectual Property, and (y) to prevent the unauthorized use by any other
person or entity; and
(ii) The Business Contribution Member shall use all
reasonable efforts to maintain, or cause to be maintained, the Intellectual
Property in full force and effect through the Closing and, without limitation,
has renewed or has made, and will make within any applicable renewal period
ending on or prior to the Closing Date, application to renew all of the
Intellectual Property subject to expiration on or prior to the Closing Date.
Neither the Business Contribution Member nor any of the Shareholders has granted
to any other Person or entity any rights or permissions to use any of the
Intellectual Property.
(d) Definition of Intellectual Property. For purposes of this
Agreement, the term "Intellectual Property" means any patent, copyright,
trademark, trade name, service xxxx, service name, brand xxxx, brand name, logo,
corporate name, Internet domain name or industrial design, any registrations
thereof and pending applications therefor (to the extent applicable), any other
intellectual property right (including, without limitation, any know-how, trade
secret, trade right, formula, conditional or proprietary report or information,
customer or membership list, any marketing data, and any computer program,
software, database or data right), and license or other contract (including
without limitation license(s) to use specific telephone numbers and/or radio
channels/frequencies) relating to any of the foregoing, and any goodwill
associated with any business owning, holding or using any of the foregoing.
18
2.12. Insurance. The Business Contribution Member currently
maintains, and as of the Closing in Escrow and the Closing Date will maintain,
valid insurance policies, which polices provide adequate coverage, within terms
of scope and amount of coverage, for the Assets and the operations conducted by
the Business. From and after Closing, the Specific Company Subsidiary will be
solely responsible for the insurance set forth in Exhibit L. In the event that
such insurance-related Assumed Liabilities as appear on Exhibit L hereto are
unable to be assumed by the Specific Company Subsidiary directly from and after
Closing, the Business Contribution Member hereby agrees to keep such insurance
policy(ies) as are reflected by such Assumed Liabilities in full force and
effect for 60 days after Closing, at the Specific Company Subsidiary's expense,
to allow the Specific Company Subsidiary to arrange its own such insurance
policy(ies). There are no pending material claims against such insurance by the
Business Contribution Member as to which the applicable insurers have denied
coverage. In addition, there exist no material claims under such insurance that
have not been properly filed by the Business Contribution Member. During the
past two years, the Business Contribution Member has not been refused any
insurance coverage by any insurer from which the Business Contribution Member
has sought coverage.
2.13. Contracts. Each of the Contracts (i) is valid and enforceable
in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting creditors' rights and
remedies generally and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a proceeding at law or in
equity); (ii) no Default (as defined below) exists under any Contract either by
the Business Contribution Member or by any other party thereto; (iii) neither
the Business Contribution Member nor any of the Shareholders is aware of the
assertion by any third party of any claim of Default or breach under any of the
Contracts; and (iv) neither the Business Contribution Member nor any of the
Shareholders is aware of any present intention on the part of any significant
customer or supplier or other business partner of the Business Contribution
Member to either (x) terminate or significantly change its existing business
relationship with the Business Contribution Member either now or in the
foreseeable future, or (y) fail to renew or extend its existing business
relationship with the Business Contribution Member at the end of the term of
19
any existing contractual arrangement such entity may have with the Business
Contribution Member. For purposes of this Agreement, the term "Default" means,
with respect to any Contract, (x) any breach of or default under such Contract,
(y) any event, other than the normal passage of time, which would (either with
or without notice or lapse of time or both) give rise to any right of
termination, cancellation or acceleration or any obligation to repay with
respect to such Contract, or (z) any event, other than the normal passage of
time, which would result in either a significant increase in the obligations or
liabilities of, or a loss of any significant benefit of, the party in question
under such Contract.
2.14. Misrepresentation. Neither this Agreement (including the
Exhibits hereto) or any Related Agreement or any information supplied to the
Company by or on behalf of the Business Contribution Member or any of the
Shareholders in connection with this Agreement, the Related Agreements or the
transactions contemplated hereby or thereby contains or will contain any untrue
statement of a material fact or omits or will omit to state a material fact
necessary to make the statement contained herein or therein, in light of the
circumstances under which they were made, not misleading. Neither the Business
Contribution Member nor any of the Shareholders knows of any facts which are
reasonably likely to cause a material adverse effect on the Assets or the
Business.
3. Additional Representations, Warranties and Covenants of the Business
Contribution Member.
3.1. Non-Competition and Other Covenants of the Business
Contribution Member, the Shareholders, and Certain Employees
of the Business Contribution Member
Each of the Shareholders, the Business Contribution Member,
and certain employees of the Business Contribution Member noted on Exhibit B
attached hereto, shall have, at the Closing in Escrow, entered into agreements,
the form of which is attached to this Agreement as Exhibit B.
3.2. Confidentiality. The Business Contribution Member and the
Shareholders shall abide by the terms of the Confidentiality Agreement between
the Business Contribution Member and the Company (or the Company's predecessor,
Dispatch Management Services LLC) executed on August 12, 1997. The Business
Contribution Member, the Shareholders, and the
20
Specific Company Subsidiary each acknowledge and agree that the Company shall
have the right to disclose certain information concerning the Specific Company
Subsidiary, the Assets and/or the Business to third parties (which third parties
will in turn be bound by an agreement similar to the Confidentiality Agreement),
for such general corporate purposes as includes but is not limited to obtaining
financing and/or underwriting, and for general marketing purposes.
4. Representations and Warranties of the Company
The Company represents and warrants to the Business Contribution
Member and the Shareholders as follows:
4.1. Organization, Standing and Power. The Company is duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite power and authority to own, lease and operate its
properties and to carry on its business as now being conducted. The Company is
duly qualified and in good standing to conduct business in each jurisdiction in
which the business it is conducting, or the operation, ownership or leasing of
its properties, makes such qualification necessary.
4.2. Authority and Enforceability. The Company has all requisite
power and authority to execute and deliver this Agreement and each of the
Related Agreements to which it is a party and to perform fully its obligations
hereunder and thereunder. The execution and delivery of this Agreement and each
of the Related Agreements to which it is a party and the consummation of the
transactions contemplated hereby and thereby have been duly authorized by all
necessary action on the part of the Company. This Agreement and each of the
Related Agreements to which it is a party have been duly executed and delivered
by the Company, and constitute the legal, valid and binding obligations of the
Company enforceable against the Company in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights and remedies
generally and subject, as to enforceability, to general principles of equity
(regardless of whether enforceability is considered in a proceeding at law or in
equity).
4.3. No Violations Resulting From Transactions. The execution and
delivery by the Company of this Agreement and each of the Related Agreements to
which it is a party and the consummation of the transactions contemplated hereby
and thereby by the Company, will not
21
(a) conflict with or violate any provision of the Certificate of Incorporation
or By-laws of the Company; (b) except as set forth on Exhibit E, require any
consent, waiver, approval, authorization or permission of, or filing with or
notification to, any third party; (c) result in or constitute a default, or
require any consent or approval of or notice to any person or entity under or
pursuant to any of the contracts to which the Company is a party; or (d) violate
any applicable laws.
4.4. Compliance with Laws.
(a) The Company is, and at all times since its inception has
been, in material compliance with all applicable laws; and
(b) The Company has not received, and does not know of the
issuance or threatened issuance by any governmental entity of, any notices of
violation or alleged violation of any applicable law. The Business Contribution
Member has been provided with true and complete copies of (i) all injunctions,
judgments, orders or consent or similar decrees or agreements of any
governmental entity to which the Company is currently subject (or to which the
Company was subject since its inception), and (ii) all correspondence through
the date hereof with respect to any of the matters referred to in clause (b) or
clause (i) of this Section 4.4.
4.5. Litigation. There is no Legal Proceeding pending or, to the
knowledge of the Company, threatened that questions the validity of this
Agreement or the Related Agreements or any action taken or to be taken by the
Company in connection with the consummation of the transactions contemplated
hereby or thereby or which seeks to prohibit, enjoin or otherwise challenge any
of the transactions contemplated hereby or thereby. Exhibit H sets forth an
accurate and complete list, and a brief description (setting forth the names of
the parties involved, the court or other governmental or mediating entity
involved, the relief sought and the substantive allegations and the status
thereof), of each Legal Proceeding pending or, to the knowledge of the Company,
threatened against or affecting the Company. To the knowledge of the Company, no
event has occurred and no circumstance, matter or set of facts exist which would
constitute a valid basis for the assertion by any third party of any claim or
Legal Proceeding, other than those listed on Exhibit H. Except as set forth in
Exhibit H, there is no outstanding or, to the knowledge of the Company,
threatened, judgment, injunction, order or
22
consent or similar decree or agreement (including, without limitation, any
consent or similar decree or agreement with any governmental entity) against,
affecting or naming the Company.
4.6. Default. The Company is not in material default of any of its
obligations, contracts, or commitments in any respect, or in breach of any
negative or affirmative covenants placed on it by its creditors, and the Company
has not been notified of any such defaults or breaches.
4.7. Misrepresentation. Neither this Agreement (including the
Exhibits hereto) or any Related Agreement or any information supplied to the
Business Contribution Member by or on behalf of the Company in connection with
this Agreement, the Related Agreements or the transactions contemplated hereby
or thereby contains or will contain any untrue statement of a material fact or
omits or will omit to state a material fact necessary to make the statement
contained herein or therein, in light of the circumstances under which they were
made, not misleading.
5. Covenants Relating to Conduct of Business
During the period from the date of this Agreement and continuing
until the Closing Date, the Business Contribution Member and the Shareholders,
jointly and severally, covenant and agree that (except as expressly contemplated
or permitted by this Agreement, or to the extent that the Company shall
otherwise consent in writing):
5.1. Conduct of the Business Until the Closing Date. The Business
Contribution Member shall be obligated to:
(a) conduct the Business only in the ordinary course,
consistent with past practice;
(b) use its best efforts to (i) preserve the present business
operations, organization (including, without limitation, management and the
sales force) and goodwill of the Business and (ii) preserve the present
relationship of the Business Contribution Member with Persons having business
dealings with the Business Contribution Member;
(c) comply with all laws and with all contractual and other
obligations applicable to the Business Contribution Member;
(d) not subject any of the Assets to any Encumbrance;
23
(e) not acquire any material properties or assets and not
sell, assign, transfer, convey, lease or otherwise dispose of any of the
material properties of the Business (including but not limited to the Assets);
(f) promptly notify the Company of (i) the occurrence of any
matter which may have a material adverse effect on the Business or the Assets,
and (ii) any Legal Proceeding commenced by or against the Business Contribution
Member or any Legal Proceeding commenced or threatened relating to the
transactions contemplated by this Agreement; and
(g) not agree to do anything prohibited by this Agreement or
anything which would make any of the representations and warranties of the
Business Contribution Member or the Shareholders in this Agreement or the
Related Agreements untrue or incorrect in any material respect.
6. Additional Agreements and Representations.
6.1. Change of Name. At the Closing, the Business Contribution
Member shall take all steps necessary to change its corporate name and/or trade
name to a name not confusingly similar to the trade name being conveyed
hereunder and to be utilized post-Closing by the Specific Company Subsidiary.
6.2. Access to Information. The Business Contribution Member agrees
that, prior to the Closing Date, the Company shall be entitled (at its sole
expense), through its officers, employees and representatives (including,
without limitation, its legal advisors and accountants), to make such
investigation of the properties, businesses and operations and financial
condition of the Business and the Business Contribution Member and examination
of its books and records as the Company may reasonably request, and to make
extracts and copies of such books and records. Any such investigation and
examination shall be conducted during regular business hours and under
reasonable circumstances, and the Business Contribution Member shall cooperate
fully therein. In order that the Company may have full opportunity to make such
physical, business, accounting and legal review, examination or investigation as
it may reasonably request of the affairs of the Business and the Business
Contribution Member, each of the Business Contribution Member and the
Shareholders shall use their respective best efforts to
24
cause the Business Contribution Member's officers, employees, consultants,
agents, accountants, attorneys and other representatives to cooperate fully with
such Company representatives in connection with such review and examination.
6.3. Non-solicitation Pending Closing. After execution of this
Agreement, and through the Closing Date, neither the Business Contribution
Member nor any of the Shareholders shall pursue, initiate, encourage or engage
in any negotiations or discussions with any third parties concerning the sale of
the Business, the Assets, or any part thereof or concerning the terms and
conditions of this Agreement.
6.4. Additional Agreements. Each of the parties hereto agrees to use
their respective best efforts to (i) take, or cause to be taken, all appropriate
action, and to do, or cause to be done, all things necessary, proper or
advisable under applicable laws and regulations to consummate and make effective
the transactions contemplated by this Agreement and the Related Agreements, (ii)
obtain all licenses, permits, consents, approvals, authorizations,
qualifications and orders of governmental entities, third parties and parties to
Contracts with the Business Contribution Member as are necessary for
consummation of the transactions contemplated by this Agreement and the Related
Agreements, and (iii) fulfill all conditions precedent applicable to such party
pursuant to this Agreement and the Related Agreements. In case at any time after
the Closing Date any further action is necessary or desirable to carry out the
purposes of this Agreement or the Related Agreements, each party hereto shall
use their respective best efforts to take or cause to be taken all such
necessary action.
6.5. Notification of Certain Matters. The Business Contribution
Member and the Shareholders shall give prompt notice to the Company of (a) any
notice of, or other communication relating to, a default under any contract
material to the financial condition, properties, business operations, or results
of operations of the Business and/or the Business Contribution Member to which
it is a party or is subject, (b) any notice or other communication from any
third party alleging that the consent of such third party is or may be required
in connection with the transactions contemplated by this Agreement or any of the
Related Agreements, or (c) any material adverse change in the properties
(including but not limited to the Assets), business operations, results of
operations, financial condition or prospects of the
25
Business, other than changes resulting from general economic conditions. In
addition, the Business Contribution Member and the Shareholders shall be
required to update the schedules and other information supplied pursuant to this
Agreement at such time as the information contained therein changes in any
material respect.
6.6 Working Capital as of the Closing Date. The Shareholders and the
Business Contribution Member shall ensure that the Assets, less the Assumed
Liabilities, includes at least $0 working capital (defined as the excess of
current (liquid) assets over current liabilities) as of the Closing Date.
For purposes of determining whether the required working capital
existed as of the Closing Date, the Company will cause to be prepared, promptly
following the Closing, a balance sheet setting forth the Assets and Assumed
Liabilities as of the Closing Date. Such balance sheet shall be prepared in
accordance with GAAP, consistent with past practices of the Business
Contribution Member, and shall include full accrual of all tax liabilities of
the Business Contribution Member as of the Closing Date (including but not
limited to, accrued tax liabilities as if the tax year ended on the Closing
Date). In the event that less than the prescribed $0 working capital existed as
of the Closing Date, as determined by such balance sheet, the Shareholders
and/or the Business Contribution Member shall forthwith pay the Company an
amount equal to the difference between the actual working capital as of the
Closing Date and $0 working capital (the "Shortfall"). If the Shareholders
and/or the Business Contribution Member do not pay the Shortfall to the Company
within five (5) days after demand, then, in addition to all other remedies which
the Company may have, the Company may deduct the amount of the Shortfall from
any of the obligations of the Company to the Shareholders or the Business
Contribution Member (including, but not limited to, the Earn-Out to which the
Business Contribution Member may be entitled thereafter).
In the event that the Business Contribution Member shall notify the
Company in writing within five days after demand is made by the Company for
payment of the Shortfall of its decision to dispute the amount of the Shortfall,
the Company shall forthwith instruct Price Waterhouse LLP to audit the balance
sheet of the Business as of the Closing Date, and to calculate the working
capital therein in accordance with GAAP. Price Waterhouse LLP shall
26
then determine the amount of the Shortfall as set out in this paragraph 6.6,
whose decision shall be final and binding on the parties hereto. The Business
Contribution Member shall forthwith pay to the Company the amount of such
Shortfall, together with fifty percent (50%) of the cost of the audit conducted
by Price Waterhouse LLP. In the event Price Waterhouse LLP determines the
Shortfall to have been zero, the entire cost of such audit shall be borne by the
Company.
7. Conditions Precedent.
7.1. Conditions to Obligations of All Parties. The respective
obligations of each party under this Agreement shall be subject to the
satisfaction prior to the Closing in Escrow Date and the Closing Date of the
following conditions:
(a) Governmental Approvals. All authorizations, consents,
orders or approvals of, or declarations or filings with, or expirations of
waiting periods imposed by, any governmental entity, requisite to the
transactions contemplated hereby, shall have been filed, occurred or have been
obtained, as the case may be.
(b) No Injunctions or Restraints. No temporary restraining
order, preliminary or permanent injunction or other order issued by any court of
competent jurisdiction or other legal restraint or prohibition preventing the
consummation of the transactions contemplated by this Agreement shall be in
effect; provided that prior to invoking this condition, each party shall use
their best efforts to have any such order, injunction, legal restraint or
prohibition vacated.
7.2. Conditions to Obligations of the Company. The obligations of
the Company to effect the transactions contemplated by this Agreement are
subject to the satisfaction of the following conditions (which are for the
exclusive benefit of the Company, any or all of which may be waived in whole or
in part by the Company):
(a) Representations and Warranties. The representations and
warranties of the Business Contribution Member and the Shareholders set forth in
this Agreement (with regard to any supplements or updates thereto) shall be true
and correct in all respects as of the date of this Agreement and (except to the
extent such representations and warranties speak as of a specified, earlier
date) as of the Closing in Escrow Date and the Closing Date as though made on
and as of the Closing in Escrow Date and the Closing Date, respectively,
27
except as otherwise contemplated by this Agreement, and the Company shall have
received a certificate from the Shareholders and the Business Contribution
Member (signed by a senior executive officer of the Business Contribution
Member) certifying to such effect.
(b) Performance of Obligations. The Business Contribution
Member and the Shareholders shall each have performed all obligations required
to be performed by each such party under this Agreement at or prior to the
Closing in Escrow Date and the Closing Date, respectively, and the Company shall
have received a certificate from the Shareholders and the Business Contribution
Member (signed by a senior executive officer of the Business Contribution
Member) certifying to such effect.
(c) No Material Adverse Change. Since the date of this
Agreement, there shall have been no change, occurrence or circumstance resulting
in, or which could reasonably likely result in, individually or in the
aggregate, a material adverse effect on the Assets or the Business.
(d) Contractual Consents. The Business Contribution Member
and/or the Shareholders shall have given all notices to, and obtained all
consents, approvals or authorizations of or from, any individual, corporation or
other party which may be necessary to permit the consummation of the
transactions contemplated hereby (including, without limitation, any consents
required under the Contracts, or which may be required to permit the change of
ownership of any of the Assets).
(e) Related Agreements. Each of the Related Agreements to
which the Business Contribution Member and/or the Shareholders are a party shall
have been duly executed and delivered by such party. In addition, the Related
Agreements shall have been entered into by the respective parties thereto.
7.3. Conditions to Obligations of the Business Contribution Member
and the Shareholders. The obligations of the Business Contribution Member and
the Shareholders to effect the transactions contemplated by this Agreement are
subject to the satisfaction of the following conditions (which are for the
exclusive benefit of the Business Contribution Member and the Shareholders), any
or all of which may be waived in whole or in part by the Business Contribution
Member or the Shareholders.
28
(a) Representations and Warranties. The representations and
warranties of the Company set forth in this Agreement shall be true and correct
in all respects as of the date of this Agreement and (except to the extent such
representations and warranties speak as of a specified, earlier date) as of the
Closing in Escrow Date and the Closing Date as though made on and as of the
Closing in Escrow Date and the Closing Date, respectively, except as otherwise
contemplated by this Agreement.
(b) Performance of Obligations. The Company shall have
performed all obligations required to be performed by it under this Agreement at
or prior to the Closing in Escrow Date and the Closing Date, respectively.
(c) Related Agreements. Each of the Related Agreements shall
have been duly executed and delivered by the parties thereto.
8. Termination.
8.1 Termination. This Agreement may be terminated at any time prior
to the Closing:
(a) by mutual written consent of the Company and the Business
Contribution Member;
(b) by either the Company or the Business Contribution Member,
if the closing of the Initial Public Offering does not occur by March 31, 1998;
(c) by the Company in the event that the Anti-Dilution Rights
set forth in Section 10(a) of the Plan and Agreement of Merger of Dispatch
Management Services LLC, Kiwi Express Software, L.L.C., and Dispatch Management
Services Corp., dated as of September 8, 1997, are not preserved; or
(d) by the Company in the event that the Business Contribution
Member and/or any of the Shareholders do not timely deliver representation
letters satisfactory to the Company.
8.2. Effect of Termination Under Section 8.1. In the event of
termination of this Agreement by either the Company or the Business Contribution
Member as provided in Section 8.1, this Agreement shall forthwith become void
and there shall be no liability or obligation on the part of any party hereto or
any of its respective Affiliates, officers, directors or
29
shareholders except (i) for the obligation of the Business Contribution Member
and the Shareholders to refund to the Company the audit expenses as set forth in
Section 1.4 of this Agreement; (ii) for any and all obligations under the
confidentiality provisions contained in Section 3.2 of this Agreement; and (iii)
to the extent that such termination results from the willful breach by a party
hereto of any of its representations or warranties, or of any of its covenants
or agreements, as set forth in this Agreement. In the event that termination
results from the willful breach by a party hereto of any of its representations
or warranties, or of any of its covenants or agreements, as set forth in this
Agreement, the breaching party shall be liable to the non-breaching party for
all direct damages (but not indirect or consequential damages) incurred as a
result of such willful breach.
9. Indemnification.
9.1. Indemnification.
(a) Indemnification by the Business Contribution Member and
the Shareholders. The Business Contribution Member and the Shareholders each
hereby agrees to jointly and severally indemnify, defend and hold harmless the
Company, the Specific Company Subsidiary, and their respective officers,
directors, employees and agents (collectively, the "Indemnitee") from and
against and in respect of any and all Losses (as defined below) to the extent
resulting from, arising out of, relating to, imposed upon or incurred by the
Indemnitee by reason of: (i) the conduct of the Business prior to the Closing
Date (but only to the extent that the amount of such Loss was not a stated
liability on the Business Contribution Member's most recently dated balance
sheet delivered to the Company, (ii) any inaccuracy in or breach of any of the
Business Contribution Member's and/or any of the Shareholders' representations,
warranties, covenants or agreements contained in this Agreement, the Related
Agreements or in any other agreement or document entered into or delivered on or
after the date hereof in connection with this Agreement or any of the
transactions contemplated hereby and thereby, (ii) any liability or obligation
of the Business Contribution Member and/or any of the Shareholders other than an
Assumed Liability, and (iii) any non-compliance with any notice requirement, if
any, which may be contained in the Uniform Commercial Code as adopted by the
State of Massachusetts, relating to bulk sales. Provided, however, the
indemnification by the Business Contribution Member
30
and/or the Shareholders under this Section 9.1.(a) shall include direct damages
only (and not indirect or consequential damages). For purposes of this
Agreement, the term "Losses" means any and all deficiencies, judgments,
settlements, demands, claims, actions or causes of action, assessments,
liabilities, losses, damages (whether direct, indirect or consequential),
interest, fines, penalties, costs and expenses (including, without limitation,
reasonable legal, accounting and other costs and expenses incurred in connection
with investigating, defending, settling or satisfying any and all demands,
claims actions, causes of action, suits, proceedings, assessments, judgments or
appeals, and in seeking indemnification therefor).
(b) Indemnification by the Company. The Company hereby agrees
to indemnify, defend and hold harmless the Business Contribution Member and/or
the Shareholders from and against and in respect of any and all Losses resulting
from, arising out of, relating to, imposed upon or incurred by the Business
Contribution Member and/or the Shareholders by reason of (i) any inaccuracy in
or breach of any of the Company's representations, warranties, covenants or
agreements contained in this Agreement or in any other agreement or document
entered into or delivered by the Company on or after the date hereof in
connection with this Agreement or any of the transactions contemplated hereby
and/or thereby; or (ii) any failure to discharge the Assumed Liabilities as
required by their terms. Provided, however, the indemnification by the Company
under this Section 9.1.(b) shall include direct damages only (and not indirect
or consequential damages) and shall be limited in the aggregate to the Purchase
Price.
9.2. Notice. If any claims in respect of Losses shall be asserted
against any party hereto or any of their respective successors in respect of
which such entity proposes to demand indemnification from any of the other
parties hereto under Section 9.1 hereof, the party seeking such indemnification
shall notify the other such parties in a reasonably prompt manner; provided that
failure to give such reasonably prompt notice shall not release, waive or
otherwise affect any party's obligations with respect thereto except to the
extent such party can demonstrate it was actually and materially prejudiced as a
result thereof.
31
10. General Provisions.
10.1. Survival of Representations, Warranties and Agreements. The
representations, warranties and agreements in this Agreement shall survive the
Closing.
10.2. Notices. Any notice or communication required or permitted
hereunder shall be in writing and either delivered personally or telecopied or
sent by overnight courier, or by certified or registered mail, postage prepaid,
and shall be deemed to be given, dated and received when so delivered personally
or by courier or telecopied, or, if mailed, five business days after the date of
mailing to the following address or telecopy number, or to such other address or
addresses as such Person may subsequently designate by written notice given
hereunder:
(a) if to Company, to:
Dispatch Management Services Corp.
00 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx, Chief Executive Officer
(b) if to the Business Contribution Member or the
Shareholders, to:
Time Couriers LLC
_____________________________
_____________________________
_____________________________
10.3. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be considered an original and all of which
shall be considered one and the same agreement and shall become effective when
two or more counterparts have been signed by each of the parties and delivered
to the other parties, it being understood that all parties need not sign the
same counterpart.
10.4. Entire Agreement; No Third Party Beneficiaries. This Agreement
(together with the Related Agreements and any other documents and instruments
referred to herein) constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereto and is not
32
intended to confer upon any Person other than the parties hereto any rights or
remedies hereunder. Subject to applicable law, this Agreement may be amended,
modified or supplemented only by written agreement of all parties hereto with
respect to any of the terms contained herein, and each party hereto agrees to be
bound by any such amendment, modification or supplement.
10.5. Governing Law. This Agreement shall be governed and construed
in accordance with the laws of the State of New York, without giving effect to
the principles of conflicts of law thereof.
10.6. Severability. If any term or other provision of this Agreement
is invalid, illegal or unenforceable, all other provisions of this Agreement
shall remain in full force and effect so long as the economic or legal substance
of the transactions contemplated hereby is not affected in any manner materially
averse to any party. In the event that the enforceability of any non-competition
or similar covenants contained herein or in any Related Agreement is called into
question as the result of time, geographical or other applicable limitations
specified in such covenants, such time, geographical or other applicable
limitations shall be deemed modified to the minimum extent necessary to render
the applicable provisions of such covenants enforceable.
10.7. Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other parties.
10.8. Specific Performance. The parties hereto acknowledge that
irreparable damage would result if any of the covenants of this Agreement were
not specifically enforced, and they therefore consent that the rights and
obligations of the parties under this Agreement may be enforced by a decree of
specific performance issued by a court of competent jurisdiction. Such remedy
shall, however, not be exclusive and shall be in addition to any other remedies
which any party may have under this Agreement or otherwise. Without limiting the
foregoing, the Business Contribution Member and the Shareholders acknowledge
that the failure to comply with any of the provisions of Sections 3.1, 3.2. and
6.3 hereof will result in irreparable harm for which there is no adequate remedy
at law and that the Company and/or the Specific Company Subsidiary shall be
entitled, without the necessity of proving actual damages, to injunctive relief
33
in addition to damages and all other remedies which may otherwise be available
to the Company and/or the Specific Company Subsidiary.
10.9. Fees and Expenses. All costs and expenses, including but not
limited to all fees and expenses of attorneys, lenders, financial advisers and
accountants, in connection with the negotiation, execution and delivery of this
Agreement, the Related Agreements and the consummation of the transactions
contemplated hereby and thereby, shall be paid by the party incurring such costs
and expenses.
10.10. Arbitration. Other than the Company's right to institute
legal action for a breach of the confidentiality, non-competition and
non-solicitation covenants set forth in Sections 3.1, 3.2 and 6.3 hereinabove,
any issue, controversy, dispute or claim arising out of or relating to this
Agreement or its alleged breach that cannot be resolved by mutual agreement
shall be resolved exclusively by arbitration by a single arbitrator in either
the District of Columbia or New York City, at the option of the Company, in
accordance with the commercial arbitration rules of the American Arbitration
Association ("AAA") and judgment on the award rendered by the arbitrator may be
entered by any court having jurisdiction thereof. It is acknowledged by the
Business Contribution Member and the Shareholders that money damages are
inadequate to compensate the Company and/or the Specific Company Subsidiary for
a breach of the terms of this Agreement, and that the Company and/or the
Specific Company Subsidiary shall be entitled to specific performance of the
terms of this Agreement. The arbitrator may enter a default decision against any
party who fails to participate in the proceeding. The decision of the arbitrator
shall be final, conclusive, binding and non-appealable. The losing party shall
pay all costs and expenses of arbitration.
The arbitrator shall be selected by consent of the parties, if possible.
If the parties fail to reach agreement upon appointment of the arbitrator within
ten days after a demand for arbitration is made, the arbitrator shall be
selected from a list of proposed arbitrators submitted by AAA. The selection
process shall be that which is set forth in the AAA commercial arbitration rules
then prevailing, except that (1) the number of preemptory strikes shall not be
limited, and (2) if the parties fail to select the arbitrator from three lists,
AAA shall have the power to make an
34
appointment. If an arbitrator should die, withdraw, or otherwise become
incapable of serving, a replacement shall be selected and appointed in a like
manner.
10.11. Disclosure to Third Parties. The Company shall have the right
to disclose to third parties, in whatever manner the Company may determine, the
fact that this Agreement has been executed, the names of the parties to this
Agreement and the terms hereof.
35
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
or on behalf of each of the parties hereto as of the date first above written.
"COMPANY"
Attest: DISPATCH MANAGEMENT SERVICES CORP.
By: /s/ Xxxxx Xxxxxxxxx
------------------------- -------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Chief Executive Officer
"BUSINESS CONTRIBUTION MEMBER"
Attest: TIME COURIERS LLC
By:
------------------------- -------------------------------------
Name:
Title:
"SPECIFIC COMPANY SUBSIDIARY"
Attest: -----------------------------------------
By: /s/ Xxxxx Xxxxxxxxx
------------------------- -------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Chief Executive Officer
36
"SHAREHOLDERS"
/s/ Xxx Xxxxxxxx
-------------------------- -----------------------------------------
Witness: Xxx Xxxxxxxx
/s/ Xxxxxxx Xxxxxxx
-------------------------- -----------------------------------------
Witness: Xxxxxxx Xxxxxxx
/s/ Xxxxxxx Xxxxx
-------------------------- -----------------------------------------
Witness: Xxxxxxx Xxxxx
/s/ Xxxxx Xxxxxx
-------------------------- -----------------------------------------
Witness: Xxxxx Xxxxxx
/s/ Xxxxxx Xxxxxxx
-------------------------- -----------------------------------------
Witness: Xxxxxx Xxxxxxx
/s/ Xxxxxxxx Xxxxxx
-------------------------- -----------------------------------------
Witness: Xxxxxxxx Xxxxxx
/s/ Xxxxxxxxxxx Xxxx
-------------------------- -----------------------------------------
Witness: Xxxxxxxxxxx Xxxx
37
