EXHIBIT 2.1
CONTRIBUTION AGREEMENT
BY AND AMONG
EGLOBE, INC., EGLOBE/OASIS, INC.
OASIS RESERVATIONS SERVICES, INC.,
OUTSOURCED AUTOMATED SERVICES AND
INTEGRATED SOLUTIONS, INC. AND
EGLOBE/OASIS RESERVATIONS LLC
Dated as of the _______ day of September, 1999
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT (this "Agreement") is entered into this ___
day of September, 1999, by and among EGLOBE, INC., a Delaware corporation
("EGLOBE"); EGLOBE/OASIS, INC., a Delaware corporation ("EOI"); OASIS
RESERVATIONS SERVICES, INC., a Delaware corporation (the "Company"); OUTSOURCED
AUTOMATED SERVICES AND INTEGRATED SOLUTIONS, INC., a Delaware corporation
("OASIS"); and EGLOBE/OASIS RESERVATIONS LLC, a Delaware limited liability
company (the "LLC").
RECITALS:
A. OASIS and EOI have formed LLC for the purpose of acquiring the
outstanding shares of the Company and operating the business currently conducted
by the Company.
B. OASIS currently owns all the outstanding stock of the Company.
C. EGLOBE currently owns all of the outstanding common stock of EOI.
D. OASIS has agreed to contribute all of the outstanding shares of the
Company to the LLC in exchange for an interest in the LLC, as more fully set
forth in this Agreement.
E. EGLOBE has agreed to contribute to EOI, and EOI has agreed to
contribute to the LLC, shares of the common stock, par value $.001 per share, of
EGLOBE (the "EGLOBE Common Stock") and certain Warrants of EGLOBE ("EGLOBE
Warrants") in exchange for an interest in the LLC, as more fully set forth in
this Agreement.
NOW THEREFORE, in consideration of the mutual promises set forth in
this Agreement, the parties hereby agree as follows:
ARTICLE I
CONTRIBUTIONS TO LLC
SECTION 1.1. CONTRIBUTION OF COMPANY COMMON STOCK.
Subject to the terms and conditions of this Agreement, at the
Closing (as defined below), OASIS shall contribute and deliver to the LLC, and
the LLC shall acquire from OASIS, all of the outstanding capital stock of the
Company, consisting of 1,000 shares of common stock, par value $.01 per share
(the "Company Common Stock").
SECTION 1.2. CONTRIBUTION OF EGLOBE COMMON STOCK AND EGLOBE WARRANTS.
Subject to the terms and conditions of this Agreement, at the
Closing, EGLOBE shall contribute and deliver to EOI, and EOI shall contribute
and deliver to the LLC,
shares of EGLOBE Common Stock and the EGLOBE Warrants pursuant to the terms and
conditions of the Side Letter between the parties (the "Side Letter"), in the
form of EXHIBIT A. The EGLOBE Warrants shall be in the form of EXHIBITS X-0, X-0
AND B-3 to this Agreement. The shares of EGLOBE Common Stock and the EGLOBE
Warrants to be issued to the LLC are collectively referred to as the "EGLOBE
Securities."
SECTION 1.3. CLOSING.
Subject to the terms and conditions of this Agreement, the closing of the
transactions contemplated by this Agreement (the "Closing") will take place as
promptly as practicable after satisfaction of the latest to occur or, if
permissible, waiver of the conditions set forth in Article VII hereof (the
"Closing Date"), at the offices of EGLOBE, 0000 00xx Xxxxxx, X.X., Xxxxx 000,
Xxxxxxxxxx, XX 00000 unless another date or place is agreed to in writing by the
parties hereto.
SECTION 1.4. DELIVERIES AT CLOSING.
(a) At the Closing, OASIS shall deliver to the LLC (i)
certificates representing the Company Shares, duly endorsed or accompanied by
stock powers duly executed in blank; (ii) the minute books and stock records of
the Company; and (iii) resignations of the officers and directors of the
Company.
(b) At the Closing, EGLOBE shall deliver to EOI, and EOI shall
deliver to the LLC instruments evidencing the EGLOBE Securities.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF OASIS AND THE COMPANY
OASIS and the Company hereby jointly and severally represent and
warrant to EGLOBE, EOI and the LLC as follows:
SECTION 2.1. ORGANIZATION AND QUALIFICATION.
The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware. The Company has
the requisite power and authority to own, operate, lease and otherwise to hold
and operate its assets and properties and to carry on its business as now being
conducted and as proposed to be conducted and to perform the terms of this
Agreement and the transactions contemplated hereby. The Company is duly
qualified to conduct its business, and is in good standing in each jurisdiction
in which the character of its properties owned, operated or leased or the nature
of its activities makes such qualification necessary. The Company has no
subsidiaries or any equity interest or other investment in any person.
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SECTION 2.2. CERTIFICATE OF INCORPORATION AND BYLAWS.
The Company has heretofore delivered to EGLOBE complete and
correct copies of the certificate of incorporation and bylaws of the Company and
OASIS, each as amended to date. Such certificate of incorporation, bylaws and
other organizational or governing documents are in full force and effect.
Neither the Company nor OASIS is in violation of any of the provisions of its
certificate of incorporation or bylaws or other organizational or governing
document.
SECTION 2.3. CAPITALIZATION.
(a) The authorized capital stock of the Company consists of
one thousand (1,000) shares of Company Common Stock, of which one thousand
(1,000) shares are issued and outstanding. All of the issued and outstanding
shares of Company Common Stock are owned beneficially and of record by OASIS
free and clear of all Encumbrances There are no options, warrants or other
rights, agreements, arrangements or commitments of any character relating to the
issued or unissued capital stock of the Company or obligating the Company to
issue or sell any shares of capital stock of, or other equity interests in, the
Company, including any securities directly or indirectly convertible into or
exercisable or exchangeable for any capital stock or other equity securities of
the Company. There are no outstanding obligations of the Company to repurchase,
redeem or otherwise acquire any shares of its capital stock or make any
investment (in the form of a loan, capital contribution or otherwise) in any
other person. All of the issued and outstanding shares of Company Common Stock
have been duly authorized and validly issued in accordance with applicable laws
and are fully paid and nonassessable and not subject to preemptive rights. No
shares of capital stock of the Company have been reserved for any purpose.
(b) Except as set forth in Schedule 2.3, the Company has no
outstanding indebtedness for borrowed money, except for operating expenses
incurred in the ordinary course of business.
SECTION 2.4. NET WORKING CAPITAL.
The Net Working Capital of the Company as of July 31, 1999 was
$(21,825). Since July 31, 1999, there has not been any material change in the
Company's Net Working Capital, other than normal recurring damages arising in
the ordinary cause of business. For purposes of this Section 2.4, the Net
Working Capital of the Company shall be calculated in accordance with Schedule
2.4 to this Agreement.
SECTION 2.5. AUTHORITY.
The execution and delivery of this Agreement by the Company
and the consummation by the Company of the transactions contemplated hereby have
been duly and validly authorized by all necessary corporate (including
stockholder) action and no other corporate proceedings on the part of the
Company are necessary to authorize this Agreement
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or to consummate the transactions contemplated hereby. This Agreement has been
duly executed and delivered by the Company and, assuming the due authorization,
execution and delivery by the other parties, constitutes a legal, valid and
binding obligation of the Company, enforceable in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws of general applicability
relating to or affecting creditors' rights generally and by the application of
general principles of equity.
SECTION 2.6. NO CONFLICT; REQUIRED FILINGS AND CONSENTS.
(a) Except as set forth in Schedule 2.6, the execution and
delivery of this Agreement by the Company does not, and the performance by the
Company of its obligations under this Agreement will not, (i) conflict with or
violate the certificate of incorporation or bylaws of the Company, (ii) conflict
with or violate any Law to which the Company is bound or by which any of the
Assets is subject, or (iii) result in any breach of or constitute a default (or
an event which with notice or lapse of time or both would become a default)
under any material note, bond, mortgage, indenture, contract, agreement, lease,
license, permit, franchise or other instrument or obligation to which the
Company is a party or by which the Company is bound or by which any of the
Assets is subject.
(b) Except as set forth in Schedule 2.6, the execution and
delivery of this Agreement by the Company does not, and the performance of this
Agreement by the Company will not, require any consent, approval, authorization
or permit of, or filing with or notification to, any Government Entity.
SECTION 2.7. FINANCIAL STATEMENTS.
(a) The Company has prepared and furnished to EGLOBE (a) an
audited balance sheet of the Company as of December 31, 1998, and the audited
statement of income and cash flows for the period from June 1, 1998 (inception)
through December 31, 1998 and (b) the unaudited balance sheet of the Company as
of June 30, 1999 (the "Financial Statements Date"), and the unaudited statement
of income and cash flows for the six months then ended. The financial statements
referred to in this Section 2.7 and other financial statements of the Company
provided to EGLOBE pursuant to this Agreement (the "Financial Statements")
present fairly, in all material respects, the financial condition of the Company
as of the respective dates and the results of operations and cash flows for the
respective periods indicated and have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis throughout the
periods involved (except that such unaudited statements do not contain all
required footnotes and are subject to normal recurring year-end adjustments).
(b) Since the Financial Statements Date, the Company has
incurred no liabilities, contingent or absolute, matured or unmatured, known or
unknown, except for liabilities incurred in the ordinary course of business,
those liabilities described on Schedule 2.7 and those liabilities, if any, which
would not have a Company Material Adverse Effect.
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SECTION 2.8. ACCOUNTS RECEIVABLE.
The accounts receivable of the Company shown on Schedule 2.8,
if any, or thereafter acquired by the Company, have been collected or are bona
fide, arose in the ordinary course of business, and to the Company's and OASIS's
knowledge, are not subject to any disputes or offsets.
SECTION 2.9. OWNERSHIP AND CONDITION OF THE ASSETS.
The Company is the sole and exclusive legal and equitable
owner of and has good and marketable title to the Assets listed on Schedule 2.9
to this Agreement and such Assets are free and clear of all Encumbrances except
as indicated on Schedule 2.7. No Person or Government Entity has an option to
purchase, right of first refusal or other similar right with respect to all or
any part of the Assets. All of the personal property of the Company used in the
operation of its business is in good working order and repair, ordinary wear and
tear excepted, and is suitable and adequate for the uses for which it is
intended or is being used.
SECTION 2.10. LEASES.
Schedule 2.10 lists and briefly describes all Material Leases
under which the Company is lessee or lessor of any Asset, or holds, manages or
operates any Asset owned by any third party, or under which any Asset owned by
the Company is held, operated or managed by a third party. The Company is the
owner and holder of all leasehold estates purported to be granted to the Company
by the Material Leases described in Schedule 2.10, free and clear of all
Encumbrances. Each such Material Lease is in full force and effect and
constitutes a legal, valid and binding obligation of, and is legally enforceable
against, the respective parties thereto and grants the leasehold estate it
purports to grant free and clear of all Encumbrances. The Company has performed
in all material respects all obligations thereunder required to be performed by
the Company to date. No party is in default in any material respect under any
Material Lease, and to the Company's and OASIS's knowledge, there has not
occurred any event which (whether with or without notice, lapse of time or the
happening or occurrence of any other event) would constitute such a default.
SECTION 2.11. MATERIAL CONTRACTS.
Schedule 2.11 lists all Material Contracts to which the
Company is a party or by which the Company is bound, and the Company has
delivered to EGLOBE true and correct copies of all such agreements. Each such
Material Contract is in full force and effect and constitutes a legal, valid and
binding obligation of, and is legally enforceable against, the respective
parties thereto. The Company has performed in all material respects all the
obligations thereunder required to be performed by the Company to date. No party
is in default in any material respect under any of the Material Contracts, and
there has not occurred any event which (whether with or without notice, lapse of
time or the happening or occurrence of any other event) would constitute such a
default.
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SECTION 2.12. LEASEHOLD INTERESTS.
Schedule 2.12 contains a list and brief description of all
interests in real estate owned by the Company, which interests consist
exclusively of leasehold interests (collectively, the "Leasehold Interests").
The Leasehold Interests described in Schedule 2.12 constitutes all real property
interests necessary to conduct the business and operations of the Company as now
conducted. The Company is not aware of any easement or other real property
interest, other than those described in Schedule 2.12, that is required, or that
has been asserted by a Government Entity or other person to be required, to
conduct the business and operations of the Company. Except as noted in Schedule
2.12, the Company has delivered to EGLOBE true and complete copies of all leases
and other instruments pertaining to the Leasehold Interests (including any and
all amendments and other modifications of such instruments). All Leasehold
Interests (including the improvements thereon) (i) are in good condition and
repair consistent with their present use, (ii) are available to the Company for
immediate use in the conduct of the Company's business and operations, and (iii)
to the knowledge of the Company and OASIS, comply in all material respects with
all applicable building or zoning codes and the regulations of any Government
Entity having jurisdiction over such Leasehold Interests.
SECTION 2.13. ENVIRONMENTAL MATTERS.
(a) The Company has complied in all material respects and is
in material compliance with all Environmental Laws. The Company has no fixed
assets, owned or leased. There are no pending or, to the knowledge of the
Company and OASIS, threatened actions, suits, claims, legal proceedings or other
proceedings against the Company based on, and the Company has not directly or
indirectly received any notice of any complaint, order, directive, citation,
notice of responsibility, notice of potential responsibility, or information
request from any Government Entity or any other Person arising out of or
attributable to: (i) the current or past presence at any part of the Leasehold
Interests of Hazardous Materials (as defined below) or any substances that pose
a hazard to human health or an impediment to working conditions; (ii) the
current or past release or threatened release into the environment from the
Leasehold Interests (including, without limitation, into any storm drain, sewer,
septic system or publicly owned treatment works) of any Hazardous Materials or
any substances that pose a hazard to human health or an impediment to working
conditions; (iii) the off-site disposal of Hazardous Materials originating on or
from the Leasehold Interests; (iv) any operations or procedures of the Company
which do not conform to requirements of the Environmental Laws; or (v) any
violation of Environmental Laws at any part of the Leasehold Interests or
otherwise arising from the Company's activities involving Hazardous Materials.
(b) As used herein, these terms shall have the following
meanings:
(i) "Environmental Laws" means all applicable foreign,
federal, state and local laws (including the common law), rules, requirements
and regulations relating to pollution, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or subsurface
strata) or protection of human health as it relates to the environment
including, without limitation, laws and regulations relating to releases of
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Hazardous Materials, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials or relating to management of asbestos in buildings.
(ii) "Hazardous Materials" means wastes, substances, or
materials (whether solids, liquids or gases) that are deemed hazardous, toxic,
pollutants, or contaminants, including without limitation, substances defined as
"hazardous substances", "toxic substances", "radioactive materials", or other
similar designations in, or otherwise subject to regulation under, any
Environmental Laws.
SECTION 2.14. LITIGATION.
Except as described on Schedule 2.14, there is no action,
suit, investigation, claim, arbitration or litigation pending or, to the
knowledge of the Company and OASIS, threatened against or involving the Company,
the Assets or the business and operations of the Company, at law or in equity,
or before or by any court, arbitrator or Government Entity. Except as described
on Schedule 2.14, the Company is not operating under or subject to any judgment,
writ, order, injunction, award or decree of any court, judge, justice or
magistrate, including any bankruptcy court or judge, or any order of or by any
Government Entity.
SECTION 2.15. COMPLIANCE WITH LAWS; LICENSES AND PERMITS.
The Company has complied and is in compliance in all material
respects with all laws, ordinances, regulations, awards, orders, judgments,
decrees and injunctions applicable to the Company, the Assets and the Company's
business and operations, including all federal, state and local laws,
ordinances, regulations and orders pertaining to employment or labor, safety,
health, environmental protection, zoning and other matters. The Company has
obtained and holds all permits, licenses and approvals (none of which has been
modified or rescinded and all of which are in full force and effect) from all
Governmental Entities necessary to conduct the business and operations of the
Company as now conducted and to own, use and maintain the Assets.
SECTION 2.16. INTELLECTUAL PROPERTY.
(a) The Company owns, or is licensed or otherwise possesses
all necessary rights to use all patents, trademarks, trade names, service marks,
copyrights and any applications therefor, maskworks, net lists, schematics,
technology, know-how, trade secrets, inventory, ideas, algorithms, processes,
computer software programs and applications (in both source code and object code
form), and tangible or intangible proprietary information or material
("Intellectual Property") that are used or marketed in the business of the
Company as presently conducted.
(b) Schedule 2.16 lists all (i) patents, registered and
unregistered trademarks, trade names and service marks, registered and
unregistered copyrights, and maskworks, included in the Intellectual Property,
including the jurisdictions in which each such
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Intellectual Property right has been issued or registered or in which any
application for such issuance and registration has been filed, (ii) licenses,
sublicenses and other agreements as to which the Company is a party and pursuant
to which any person is authorized to use any Intellectual Property, and (iii)
licenses, sublicenses and other agreements as to which the Company is a party
and pursuant to which the Company is authorized to use any third party patents,
trademarks or copyrights, including software ("Third Party Intellectual Property
Rights") which are incorporated, or form a part of, any Company product.
(c) To the knowledge of the Company and OASIS, there is no
unauthorized use, disclosure, infringement or misappropriation of any
Intellectual Property rights of the Company, any trade secret material to the
Company, or any Intellectual Property right of any third party to the extent
licensed by or through the Company, by any third party, including any employee
or former employee of the Company. Except as set forth in Schedule 2.16, the
Company has not entered into any agreement to indemnify any other person against
any charge of infringement of any Intellectual Property. Except as set forth in
Schedule 2.16, there are no royalties, fees or other payments payable by the
Company to any person by reason of the ownership, use, sale or disposition of
Intellectual Property.
(d) The Company is not, nor will it be as a result of the
execution and delivery of this Agreement or the performance of it obligations
under this Agreement, in breach of any license, sublicense or other agreement
relating to the Intellectual Property or Third Party Intellectual Property
Rights.
(e) The Company (i) has not been served with process, and is
not aware that any Person is intending to serve process on the Company, in any
suit, action or proceeding which involves a claim of infringement of any
patents, trademarks, service marks, copyrights or violation of any trade secret
or other proprietary right of any third party and (ii) has not brought any
action, suit or proceeding for infringement of Intellectual Property or breach
of any license or agreement involving Intellectual Property against any third
party. To the knowledge of the Company, the business of the Company as presently
conducted does not infringe any patent, trademark, service xxxx, copyright,
trade secret or other propriety right of any third party.
SECTION 2.17. TAXES AND ASSESSMENTS.
(a) Except as described on Schedule 2.17, the Company has paid
or reserved for all Taxes, due and payable for or with respect to all periods up
to and including the date hereof (without regard to whether or not such Taxes
are or were disputed), whether or not shown on any Tax Return.
(b) The Company has filed on a timely basis all Tax Returns
that it was required to file except for Tax Returns for the year which includes
the Closing Date. All such Tax Returns were accurate and complete in all
material respects. Except as described on Schedule 2.17, the Company is not the
beneficiary of any extension of time within which to file any Tax Return. No
claim that has not been resolved has ever been made by an authority in a
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jurisdiction where the Company does not file Tax Returns that it is or may be
subject to taxation by that jurisdiction. The Company has not given any
currently effective waiver of any statute of limitations in respect of Taxes or
agreed to any currently effective extension of time with respect to a Tax
assessment or deficiency. There are no security interests on any of the assets
of the Company that arose in connection with any failure (or alleged failure) to
pay any Tax.
(c) The Company has withheld and paid all Taxes required to
have been withheld and paid in connection with amounts paid or owing to any
employee, independent contractor, creditor, stockholder or other third party
except for such withholding or payments to be made at or before Closing.
(d) Neither the Company, including any director, officer or
employee responsible for tax matters of the Company, or OASIS, including any
director, officer or employee responsible for tax matters of OASIS, is aware of
any facts or circumstances which could give rise to a reasonable expectation
that any authority may assess any additional Taxes for any period for which Tax
Returns have been filed. There is no dispute or claim concerning any liability
for Taxes of the Company either (i) claimed or raised by any authority in
writing or (ii) as to which such Company has knowledge based upon personal
contact with any agent of such authority. The Company has delivered to EGLOBE
correct and complete copies of all federal income Tax Returns, examination
reports, and statements of deficiencies assessed against or agreed to by any of
the Companies since December 31, 1995. Schedule 2.17 sets forth a complete and
accurate list of Company Tax Returns filed with respect to the taxable periods
of the Company ended on or after December 31, 1995; indicates those Company Tax
Returns that have been audited; and indicates those Company Tax Returns that
currently are the subject of an audit.
(e) The unpaid Taxes of the Company (i) did not, as of the
date of the most recent audited financial statements of the Companies furnished
to EGLOBE on or prior to the date hereof pursuant to Section 2.7, exceed the
reserve for Tax Liability (as opposed to any reserve for deferred Taxes
established to reflect timing differences between book and Tax income) set forth
on the face of the such financial statements, and (ii) do not exceed that
reserve as adjusted for the passage of time through the Closing Date in
accordance with the past custom and practice of the Company in filing its
Company Tax Returns.
(f) The Company has not filed a consent under Section 341(f)
of the Code concerning collapsible corporations. The Company has not made any
payment, is not obligated to make any payment and is not a party to any
agreement that under certain circumstances could obligate it to make any
payments that will not be deductible under Section 280G of the Code. Except as
set forth on Schedule 2.17, the Company has disclosed on its federal income
Company Tax Returns all positions taken therein that could reasonably be
expected to give rise to a substantial understatement of federal income Tax
within the meaning of Section 6662 of the Code. Except as set forth on Schedule
2.17, the Company is not a party to any Tax allocation or sharing agreement. The
Company has not been a member of Affiliated Group filing a consolidated federal
income Tax Return other than a group the common parent of which is OASIS. The
Company has no Liability for the Taxes of any Person
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(other than the Company) under Treas. Reg. Section 1.1502-6 (or any similar
provision of state, local, or foreign law), as a transferee or successor, by
contract or otherwise.
(g) Section 2.17 sets forth the following information with
respect to the Company as of the date hereof: (i) the federal income tax basis
of the Company in its assets; and (ii) the amount of any net operating loss
carryover, net capital loss carryover, unused investment, foreign tax or other
credit, or excess charitable contribution allocable to the Company.
(h) Each Affiliated Group has filed all income Tax Returns
that it was required to file for each taxable period during which the Company
was a member of group. All such Tax Returns were correct and complete in all
respects. All income Taxes owed by any Affiliated Group (whether or not shown on
any Tax Return) have been paid for each taxable period during which the Company
was a member of the group.
(i) OASIS, including any director, officer or employee
responsible for tax matters of OASIS or any of its Subsidiaries, is not aware
that any authority intends to assess any additional income Taxes against any
Affiliated Group for any taxable period during which the Company was a member of
the group. There is no dispute or claim concerning any income Tax Liability of
any Affiliated Group for any taxable period during which the Company was a
member of the group either (A) claimed or raised by any authority in writing or
(B) as to which OASIS, including any director, officer or employee responsible
for tax matters of OASIS or any of its Subsidiaries, has knowledge based upon
personal contact with any agent of such authority. Except as disclosed at
Schedule 2.17, no Affiliated Group has waived any statute of limitations in
respect of any income Taxes or agreed to any extension of time with respect to
an income Tax assessment or deficiency for any taxable period during which the
Company was a member of the group.
SECTION 2.18. EMPLOYMENT MATTERS.
(a) Neither the Company nor any Employee Benefit Plan
maintained by the Company or to which the Company has or has had the obligation
to contribute in respect of any current or former Company employees is in
violation of any provisions of Law (including without limitation, if such
Employee Benefit Plan is intended by the Company to satisfy the requirements for
tax qualification described in Section 401 of the Code, the Code and the
requirements for tax qualification described in Section 401 thereof); no
reportable event, within the meaning of ERISA, ' 4043(c)(1), (2), (3), (5), (6),
(7) or (10), has occurred and is continuing with respect to any such Employee
Benefit Plan and no prohibited transaction, within the meaning of Title I of
ERISA, has occurred with respect to any such Employee Benefit Plan. No Employee
Benefit Plan maintained by the Company is a Multiemployer Plan (as such term is
defined in ERISA), is subject to Title IV of ERISA or provides post-retirement
medical, life insurance or other benefits except to the extent required to
comply with the health care continuation coverage requirements of ERISA and the
Code. Except as set forth in Schedule 2.18, the Company does not (i) maintain
and has never maintained any Employee Benefit Plan or Other Arrangement, (ii) is
or ever has been a party to any Employee Benefit Plan
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or Other Arrangement or (iii) have obligations under any Employee Benefit Plan
or Other Arrangement.
(b) There are no collective bargaining agreements applicable
to any Company employees and the Company has no duty to bargain with any labor
organization with respect to any such persons. There is not pending any demand
for recognition or any other request or demand from a labor organization for
representative status with respect to any persons employed by the Company.
(c) Schedule 2.18 contains a true and complete list of names,
positions and rates of compensation of all employees of the Company. With
respect to any persons employed by the Company, to the Company's and OASIS'
knowledge, the Company is in compliance with all Laws respecting employment
conditions and practices, has withheld all amounts required by any applicable
Laws to be withheld from wages or any Taxes or penalties for failure to comply
with any of the foregoing.
(d) With respect to any Persons employed by the Company, (i)
the Company has not engaged in any unfair labor practice within the meaning of
the National Labor Relations Act and has not violated any legal requirement
prohibiting discrimination on the basis of race, color, national origin, sex,
religion, age, marital status, or handicap in its employment conditions or
practices; and (ii) there are no pending or, to the knowledge of the Company and
OASIS, threatened unfair labor practice charges or discrimination complaints
relating to race, color, national origin, sex, religion, age, marital status, or
handicap against the Company before any Government Entity nor, to the knowledge
of the Company and OASIS, does any basis therefor exist.
(e) No Employee Benefit Plan or Other Arrangement,
individually or collectively, provides for any payment by the Company to any
employee or independent contractor that is not deductible under Section
162(a)(1) or 404 of the Code or that is an "excess parachute payment" pursuant
to Section 280G of the Code.
SECTION 2.19. TRANSACTIONS WITH RELATED PARTIES.
Except as set forth in Schedule 2.19, to the knowledge of the
Company, neither any present or former officer, director, stockholder or Person
known by the Company to be an affiliate of the Company, nor any Person known by
the Company to be an affiliate of any such Person, is currently a party to any
transaction or agreement with the Company, including, without limitation, any
agreement providing for the employment of, furnishing of services by, rental of
Assets from or to, or otherwise requiring payments to, any such officer,
director, stockholder or affiliate. Schedule 2.19 sets forth all amounts
currently owed by the Company to OASIS or any affiliate of the Company
(including amounts charged for administrative, purchasing, data access,
licensing, financial or other services).
SECTION 2.20. INSURANCE.
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The Company has made available to EGLOBE copies of all
policies of title, property, fire, casualty, liability, life, workmen's
compensation, libel and slander, and other forms of insurance of any kind
relating to the Assets or the business and operations of the Company. All such
policies: (a) are in full force and effect; (b) are sufficient for compliance by
the Company with all requirements of applicable Law and of all licenses,
franchises and other agreements to which the Company is a party; (c) are valid,
outstanding, and enforceable policies; and (d) insure against risks of the kind
customarily insured against and in amounts customarily carried by corporations
similarly situated and provide adequate insurance coverage for the Assets and
the business and operations of the Company.
SECTION 2.21. VOTING REQUIREMENTS.
The affirmative vote of the holder of a majority of all
outstanding shares of the Company Common Stock to adopt this Agreement (the
"Company Stockholder Approval"), which such Company Stockholder Approval has
been obtained, is the only vote of the holders of any class or series of the
Company's capital stock necessary to approve and adopt this Agreement and the
transactions contemplated hereby.
SECTION 2.22. BROKERS.
Except as set forth on Schedule 2.22, no broker, finder or
investment banker is entitled to any brokerage, finder's or other fee or
commission in connection with the transactions contemplated by this Agreement
based upon arrangements made by or on behalf of the Company.
SECTION 2.23. COMPLIANCE WITH FOREIGN CORRUPT PRACTICES ACT.
The Company represents and warrants that it is not in
violation of the Foreign Corrupt Practices Act of 1977, as amended, which
prohibits businesses and businesspeople from providing any payment or gratuity
to foreign officials in exchange or obtaining or retaining business.
SECTION 2.24. DISCLOSURE.
No representations or warranties by the Company or OASIS in
this Agreement and no statement or information contained in the Schedules hereto
or any certificate furnished or to be furnished by the Company or OASIS to
EGLOBE pursuant to the provisions of this Agreement (taken collectively),
contains or will contain any untrue statement of a material fact or omits or
will omit to state any material fact necessary, in light of the circumstances
under which it was made, in order to make the statements herein or therein not
misleading.
SECTION 2.25. NO STOCK TRADING OR SHORT POSITIONS.
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The Company and OASIS represent and warrant that neither the
Company, OASIS, nor any affiliate or officer if the Company or OASIS has traded,
directly or indirectly, and, in particular, has taken a short position, in the
common stock of EGLOBE subsequent to the signing of a certain letter of intent
in connection with this transaction on June 25, 1999.
SECTION 2.26. YEAR 2000.
To the knowledge of OASIS and the Company, the computer software
utilized by the Company in the operation of its business is capable of correctly
processing data between and within the twentieth and twenty-first centuries.
ARTICLE III
ADDITIONAL REPRESENTATIONS AND WARRANTIES OF OASIS
OASIS hereby represents and warrants to EGLOBE, EOI and the LLC as
follows:
SECTION 3.1. TITLE TO COMPANY SHARES.
OASIS is and as of the Closing Date will be the sole legal,
beneficial and record owner of the Company Shares, which consist and will
consist of one thousand (1,000) shares of Company Common Stock. OASIS has and as
of the Closing Date will have good, valid and marketable title to the Company
Shares, free and clear of all Encumbrances, except such restrictions on the
transfer of such shares as may be applicable under federal and state securities
laws, with full right and lawful authority to contribute the Company Shares to
the LLC pursuant to this Agreement. Immediately following the Closing Date, the
LLC will acquire good, valid and marketable title thereto, free and clear of all
Encumbrances, except such restrictions on the transfer of such shares as may be
applicable under federal and state securities laws.
SECTION 3.2. AUTHORITY AND CAPACITY.
OASIS has full legal right, capacity, power and authority to
execute and deliver this Agreement and all other documents, instruments,
certificates and agreements executed or to be executed by it pursuant hereto,
and to consummate the transactions contemplated hereby and thereby.
SECTION 3.3. ABSENCE OF VIOLATION.
The execution, delivery and performance by OASIS of this
Agreement and all other documents, instruments, certificates and agreements
contemplated hereby to which it is a party, the fulfillment of and the
compliance with the respective terms and provisions hereof and thereof, and the
consummation of the transactions contemplated hereby and thereby, do not and
will not (a) conflict with, or violate any provision of, any Laws having
applicability
13
to it; or (b) conflict with, or result in any breach of, or constitute a default
under, any agreement to which it is a party.
14
SECTION 3.4. RESTRICTIONS AND CONSENTS.
There are no agreements, Laws or other restrictions of any
kind to which OASIS is party or subject that would prevent or restrict the
execution, delivery or performance of this Agreement by OASIS.
SECTION 3.5. BINDING OBLIGATION.
This Agreement constitutes, and each document, instrument,
certificate and agreement to be executed by OASIS pursuant hereto, when executed
and delivered in accordance with the provisions hereof, shall constitute, a
valid and binding obligation of it, enforceable in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws of general applicability
relating to or affecting creditors' rights generally and by the application of
general principles of equity.
SECTION 3.6. NO REGISTRATION UNDER THE SECURITIES ACT.
OASIS understands that the shares of EGLOBE Common Stock to be
contributed to the LLC under this Agreement have not been registered under the
Securities Act of 1933, as amended (the "Securities Act"), in reliance upon
exemptions contained in the Securities Act or interpretations thereof, and such
shares of EGLOBE Common Stock cannot be offered for sale, sold or otherwise
transferred unless such shares are so registered or qualify for an exemption
from registration under the Securities Act.
SECTION 3.7. ACQUISITION FOR INVESTMENT.
The shares of EGLOBE Common Stock to be issued to the LLC
under this Agreement are being (or will be) acquired by the LLC in good faith
solely for the account of the LLC or OASIS, as the case may be (and its direct
and indirect beneficiaries), for investment and not with a view toward resale or
other distribution within the meaning of the Securities Act. Such shares will
not be offered for sale, sold or otherwise transferred by the LLC or OASIS, as
the case may be, without either registration or exemption from registration
under the Securities Act.
SECTION 3.8. EVALUATION OF MERITS AND RISKS OF INVESTMENT.
OASIS has such knowledge and experience in financial and
business matters that OASIS is capable of evaluating the merits and risks of an
investment in the shares of EGLOBE Common Stock. Oasis understands and is able
to bear any economic risks associated with any such investment. OASIS is an
"accredited investor," as that term is defined in Regulation D promulgated under
the Securities Act. OASIS confirms that EGLOBE has made available to OASIS and
its representatives and agents the opportunity to ask questions of the officers
and management employees of EGLOBE about the business and financial condition of
EGLOBE as OASIS or its representatives have requested.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF EGLOBE AND EOI
EGLOBE and EOI hereby jointly and severally represent and warrant to
OASIS, the Company and the LLC as follows:
SECTION 4.1. ORGANIZATION AND QUALIFICATION.
EGLOBE and EOI are each corporations duly organized, validly
existing and in good standing under the laws of the State of Delaware. EGLOBE
and EOI each have the requisite power and authority to own, lease and operate
their assets and properties, to carry on their business as now being conducted
and to perform the terms of this Agreement and the transactions contemplated
hereby. EGLOBE and EOI are each duly qualified to conduct their business, and
are in good standing, in each jurisdiction where the ownership or leasing of
their properties or the nature of their activities in connection with the
conduct of their business makes such qualification necessary.
SECTION 4.2. CERTIFICATE OF INCORPORATION AND BYLAWS.
EGLOBE and EOI each have herewith delivered to the Company,
complete and correct copies of their certificate of incorporation and the
bylaws, each as amended to date. Such certificates of incorporation and bylaws
are in full force and effect. Neither EGLOBE nor EOI is in violation of any of
the provisions of its certificate of incorporation or bylaws or other
organizational or governing document.
SECTION 4.3. CAPITALIZATION.
The authorized capital stock of EGLOBE consists of: (i) one
hundred million (100,000,000) shares of EGLOBE Common Stock of which 22,443,541
shares are issued and outstanding on the date of execution of this Agreement;
and (ii) ten million (10,000,000) shares of preferred stock, par value $.001 per
share, of which: (a) five hundred thousand (500,000) shares of Series B
Convertible Preferred Stock are authorized, of which no shares are issued and
outstanding; (b) two hundred (200) shares of 8% Series C Cumulative Convertible
Preferred Stock are authorized, of which no shares are issued and outstanding;
(c) one hundred twenty-five (125) shares of 8% Series D Cumulative Convertible
Preferred Stock are authorized, of which fifty (50) shares are issued and
outstanding; (d) one hundred twenty-five (125) shares of 8% Series E Cumulative
Convertible Redeemable Preferred Stock are authorized, of which fifty (50)
shares are issued and outstanding; (e) 2,020,000 shares of Series F Convertible
Preferred Stock are authorized, of which 1,010,000 shares are issued and
outstanding; (f) 1 share of 6% Series G Cumulative Convertible Redeemable
Preferred Stock is authorized, of which no shares are issued and outstanding;
(g) 500,000 shares of Series M Convertible Preferred Stock is authorized, issued
and outstanding; (h) 400,000 shares of Series
16
I Convertible Preferred Stock is authorized issued and outstanding; and (i) 30
shares of 5% Series G Cumulative Convertible Preferred Stock is authorized,
issued and outstanding. EGLOBE is presently proposing to issue 5% Series J
Cumulative Convertible Preferred Stock as prepayment of $4.0 million under the
$20.0 million secured note agreement. Except as set forth in Schedule 4.3, there
are no options, warrants or other rights, agreements, arrangements or
commitments of any character relating to the issued or unissued capital stock of
EGLOBE or obligating EGLOBE to issue or sell any shares of capital stock of, or
other equity interests in EGLOBE, including any securities directly or
indirectly convertible into or exercisable or exchangeable for any capital stock
or other equity securities of EGLOBE. Except as set forth in Schedule 4.3, there
are no outstanding obligations of EGLOBE to repurchase, redeem or otherwise
acquire any shares of its capital stock or make any investment (in the form of a
loan, capital contribution or otherwise) in any other person.
SECTION 4.4. EGLOBE SECURITIES.
The EGLOBE Securities to be issued pursuant to the terms of
this Agreement, shall, when issued, be duly authorized, validly issued, fully
paid and non-assessable and free from any Encumbrances.
SECTION 4.5. AUTHORITY.
Except for the approval of the Executive Committee of EGLOBE's
Board of Directors, the execution and delivery of this Agreement by EGLOBE and
the consummation by EGLOBE and EOI of the transactions contemplated hereby have
been duly and validly authorized by all necessary corporate action and no other
corporate proceedings on the part of EGLOBE or EOI are necessary to authorize
this Agreement or to consummate the transactions contemplated hereby. This
Agreement has been duly executed and delivered by EGLOBE and EOI and, assuming
the due authorization, execution and delivery by the other parties, constitutes
a legal, valid and binding obligation of EGLOBE and EOI, enforceable in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws of
general applicability relating to or affecting creditors' rights generally and
by the application of general principles of equity.
SECTION 4.6. NO CONFLICT; REQUIRED FILINGS AND CONSENTS.
(a) Except as set forth in Schedule 4.6, the execution and
delivery of this Agreement by EGLOBE and EOI do not, and the performance by
EGLOBE and EOI of their obligations under this Agreement will not, (i) conflict
with or violate the certificate of incorporation or bylaws of EGLOBE and EOI,
(ii) conflict with or violate any Law applicable to EGLOBE or its assets and
properties, or (iii) result in any breach of or constitute a default under any
note, bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which EGLOBE and EOI are parties
or by which EGLOBE and EOI are bound, or by which any of their properties or
assets is subject.
17
(b) Except as set forth in Schedule 4.6, the execution and
delivery of this Agreement by EGLOBE and EOI do not, and the performance of this
Agreement by EGLOBE and EOI will not, require any consent, approval,
authorization or permit of, or filing with or notification to, any Government
Entity.
SECTION 4.7. FINANCIAL STATEMENTS.
The balance sheets of EGLOBE as of December 31, 1998 and, June
30, 1999, and the statements of income and cash flows for the fiscal year ended
December 31, 1998 and the six months ended June 30, 1999 fairly present, in all
material respects, the financial condition of EGLOBE as of the respective dates
and the results of operations and cash flows for the respective periods
indicated and have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis. Except as reflected in the
audited balance sheet of EGLOBE as of June 30, 1999 (the "EGLOBE Balance Sheet
Date"), EGLOBE has no liabilities, contingent or absolute, matured or unmatured,
known or unknown, except for liabilities incurred in the ordinary course of
business since the EGLOBE Balance Sheet Date that would not have an EGLOBE
Material Adverse Effect.
SECTION 4.8. ABSENCE OF CERTAIN CHANGES OR EVENTS.
Except as set forth in Schedule 4.8, since June 30, 1999,
EGLOBE has not incurred any material liability, except in the ordinary course of
its business consistent with its past practices, and EGLOBE has conducted its
business in the ordinary course consistent with its past practices. Except as
set forth in Schedule 4.8, since June 30, 1999, there has not been any change in
the business, condition (financial or otherwise) or results of operations of
EGLOBE, including any transaction, commitment, dispute, damage, destruction or
loss, whether or not covered by insurance, or other event of any character
(whether or not in the ordinary course of business) individually or in the
aggregate which has had, or is reasonably likely to have, an EGLOBE Material
Adverse Effect.
SECTION 4.9. AGREEMENTS.
Except as set forth in Schedule 4.9, all agreements that were,
or were required to be, filed as exhibits to the EGLOBE's Annual Report on Form
10-K (collectively, the "EGLOBE Material Contracts") are valid and in full force
and effect on the date hereof, and EGLOBE has not (and has no knowledge that any
party thereto has) violated any provision of, or committed or failed to perform
any act which with or without notice, lapse of time or both would constitute a
default under the provisions of, any EGLOBE Material Contract, except for
defaults which would not reasonably be expected to have an EGLOBE Material
Adverse Effect.
SECTION 4.10. LITIGATION.
Except as set forth in Schedule 4.10, there is no action,
suit, investigation, claim, arbitration or litigation pending or, to the
knowledge of EGLOBE, threatened against or involving EGLOBE or the business and
operations of EGLOBE, at law
18
or in equity, or before or by any court, arbitrator or Government Entity. EGLOBE
is not operating under or subject to any judgment, writ, order, injunction,
award or decree of any court, judge, justice or magistrate, including any
bankruptcy court or judge, or any order of or by any Government Entity.
SECTION 4.11. TAXES AND ASSESSMENTS.
Except as set forth in Schedule 4.11, (i) EGLOBE has duly and
timely paid all Taxes which have become due and payable by it; (ii) EGLOBE has
received no notice of, nor does EGLOBE have any knowledge of, any notice of
deficiency or assessment or proposed deficiency or assessment from any taxing
Government Entity; and (iii) there are no audits pending and there are no
outstanding agreements or waivers by EGLOBE that extend the statutory period of
limitations applicable to any federal, state, local, or foreign tax returns or
Taxes.
SECTION 4.12. Voting Requirements.
The Board of Directors of the EGLOBE has previously authorized
the execution, delivery and performance of this Agreement by the EGLOBE, subject
to the future approval of the Executive Committee of the Board of Directors
EGLOBE.
SECTION 4.13. ACTIVITIES OF EOI.
Prior to the date of this Agreement and the Closing Date, EOI
has not and shall not have conducted any business activities of any kind or
nature and shall have no assets, liabilities or commitments of any kind other
than its obligations under this Agreement.
SECTION 4.14. BROKERS.
No broker, finder or investment banker, except in connection
with EGLOBE's evaluation of the transactions contemplated by this Agreement, is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement based upon arrangements
made by or on behalf of EGLOBE or EOI.
SECTION 4.15. DISCLOSURE.
No representations or warranties by EGLOBE in this Agreement
and no statement or information contained in the Schedules hereto or any
certificate furnished or to be furnished by EGLOBE to the Company and OASIS
pursuant to the provisions of this Agreement (taken collectively), contains or
will contain any untrue statement of a material fact or omits or will omit to
state any material fact necessary, in light of the circumstances under which it
was made, in order to make the statements herein or therein not misleading. As
of the date hereof, EGLOBE has made all necessary filings pursuant to the
applicable requirements of the Securities Act of 1933, as amended ("Act") and
the Securities Exchange Act of 1934, as amended (collectively, the "EGLOBE
Public Reports"). The EGLOBE Public Reports
19
complied at the respective times of the filing thereof in all material respects
with the applicable requirements of the Act and the Securities Exchange Act of
1934, as amended, and, as of the dates thereof, did not contain any untrue
statement of any material fact or omit to state a material fact necessary in the
light of the circumstances under which it was made, in order to make the
statements therein not misleading. All financial statements set forth in the
EGLOBE Public Reports present fairly in all material respects the consolidated
financial condition of EGLOBE and its affiliates as of (or for the years ending
on) their respective dates.
ARTICLE V
COVENANTS
SECTION 5.1. AFFIRMATIVE COVENANTS OF OASIS AND THE COMPANY.
The Company and OASIS hereby covenant and agree that, prior to
the Closing, unless otherwise expressly contemplated by this Agreement or
consented to in writing by EGLOBE, the Company shall (a) operate its business in
the usual and ordinary course consistent with past practices and in accordance
with applicable Laws; (b) preserve substantially intact its business
organization, maintain its rights and franchises, use its best efforts to retain
the services of its respective principal officers and key employees and maintain
its relationship with its respective suppliers, contractors, distributors,
customers and others having business relationships with it; (c) maintain and
keep its properties and assets in as good repair and condition as at present,
ordinary wear and tear excepted; and (d) eliminate all intercompany accounts
between the Company and OASIS and any of the Company's affiliates (other than
the prepaid revenue received by the Company from A Bargain Airfare, Inc.).
SECTION 5.2. NEGATIVE COVENANTS OF OASIS AND THE COMPANY.
Except as expressly contemplated by this Agreement or
otherwise consented to in writing by EGLOBE, from the date hereof until the
Closing, the Company shall not (and OASIS shall cause it not to) take any of the
following actions:
(a) (i) increase the compensation payable to or to become
payable to any of its directors, officers or employees, except for increases in
salary, wages or bonuses payable or to become payable in the ordinary course of
business and consistent with past practice; (ii) grant any severance or
termination pay to, or enter into or modify any employment or severance
agreement with, any of its directors, officers or employees; or (iii) adopt or
amend any employee benefit plan or arrangement, except as may be required by
applicable Law;
(b) declare, set aside or pay any dividend on, or make any
other distribution in respect of, any of its capital stock;
(c) (i) redeem, repurchase or otherwise reacquire any share of
its capital stock or any securities or obligations convertible into or
exchangeable for any share of
20
its capital stock, or any options, warrants or conversion or other rights to
acquire any shares of its capital stock or any such securities or obligations;
(ii) effect any reorganization or recapitalization; or (iii) split, combine or
reclassify any of its capital stock or issue or authorize or propose the
issuance of any other securities in respect of, in lieu of, or in substitution
for, shares of its capital stock;
(d) (i) issue, deliver, award, grant or sell, or authorize or
propose the issuance, delivery, award, grant or sale (including the grant of any
Encumbrances) of, any shares of any class of its capital stock (including shares
held in treasury) or other equity securities, any securities or obligations
directly or indirectly convertible into or exercisable or exchangeable for any
such shares or securities, or any rights, warrants or options directly or
indirectly to acquire any such shares or securities; or (ii) amend or otherwise
modify the terms of any such securities, obligations, rights, warrants or
options in a manner inconsistent with the provisions of this Agreement or the
effect of which shall be to make such terms more favorable to the holders
thereof;
(e) acquire or agree to acquire, by merging or consolidating
with, by purchasing an equity interest in or a portion of the assets of, or by
any other manner, any business or any corporation, partnership, association or
other business organization or division thereof, or otherwise acquire or agree
to acquire any assets of any other Person (other than the purchase of equipment
and supplies in the ordinary course of business and consistent with past
practice), or make or commit to make any capital expenditures other than capital
expenditures in the ordinary course of business consistent with past practice
and in amounts which are set forth and described in the Company's Capital
Budget, a true and complete copy of which has been provided to EGLOBE and other
than expenditures in connection with the consummation of the transactions
contemplated hereunder; and will not unreasonably delay in making expenditures
contemplated by the Company's Capital Budget;
(f) sell, lease, exchange, mortgage, pledge, transfer or
otherwise dispose of, or agree to sell, lease, exchange, mortgage, pledge,
transfer or otherwise dispose of, any of its assets except for dispositions in
the ordinary course of business and consistent with past practice;
(g) propose or adopt any amendments to its certificate of
incorporation and bylaws;
(h) (i) change any of its methods of accounting in effect at
January 1, 1998, or (ii) except with respect to state and federal excise taxes
that may be or become due and payable, make or rescind any express or deemed
election relating to taxes, settle or compromise any claim, action, suit,
litigation, proceeding, arbitration, investigation, audit or controversy
relating to taxes, except, in the case of clause (i) or clause (ii), as may be
required by law or generally accepted accounting principles, consistently
applied;
(i) prepay, before the scheduled maturity thereof, any of its
long-term debt, or incur any obligation for borrowed money, whether or not
evidenced by a note, bond, debenture or similar instrument, other than trade
payables incurred in the ordinary course
21
of business consistent with past practices and payables in connection with
consummation of the transactions contemplated hereunder;
(j) enter into or modify in any material respect any Material
Contract or any other contract which, if in effect as of the date hereof, would
have been required to be disclosed on Schedule 2.11;
(k) take any action that would or could reasonably be expected
to result in any of its representations and warranties set forth in this
Agreement being untrue or in any of the conditions set forth in Article VI not
being satisfied; or
(l) agree in writing or otherwise to do any of the foregoing.
ARTICLE VI
ADDITIONAL AGREEMENTS
SECTION 6.1. LOAN FROM OASIS.
OASIS shall advance, on behalf of the Company, the amount of
$451,400 (the "Loan"), to be utilized as follows: (i) $150,000 will be utilized
to pay one-half of the Company's obligation to make the required deposit of
$300,000 (i.e., $150,000) under that certain Lease Agreement dated June 1, 1999
between the Company and Keystone Miami Property Holding Corp. (the "New Lease");
and (ii) $301,400 will be utilized to purchase and install equipment and
leasehold improvements for the new facility. The Company covenants to utilize
the proceeds of the Loan exclusively for the foregoing purposes. OASIS covenants
to make advances to the Company, upon the Company's request, at such time as
payments are due to be made to third parties with respect to the purchase and
installation of equipment and leasehold improvements at the new facility. At the
time of making each payment, OASIS shall deliver a copy of the check provided to
the third party. The Loan shall be evidenced by a promissory note to be executed
by the Company in form of EXHIBIT C (the "Note") and secured by lien on certain
assets of the Company, as more fully described in the Security Agreement to be
executed by the Company in the form of exhibit d (the "Security Agreement"). The
Loan shall also be guaranteed by EGLOBE, EOI and the LLC pursuant to Guaranty
Agreements to be executed by such parties in the form of EXHIBIT E (the
"Guarantees"). The obligations of EGLOBE, EOI and the LLC under the Guarantees
shall be secured by: (i) a pledge by EGLOBE of all of the outstanding common
stock of EOI; (ii) a pledge by EOI of its interest in the LLC; and (iii) a
pledge of the LLC of all of the shares of the Company, pursuant to the Pledge
Agreements to be executed by EGLOBE, EOI and the LLC in the form of EXHIBIT F
(the "Pledge Agreements"). On or prior to the due date of the first payment
under the Note, OASIS shall deliver to EGLOBE evidence, in a form and substance
reasonably acceptable to EGLOBE, that OASIS has advanced the amount of $451,400
pursuant to this Section 6.1.
SECTION 6.2. SUBSIDY OF LEASE DEPOSIT AND BUILD-OUT COST.
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OASIS shall provide one-half of the required $300,000 deposit
(i.e., $150,000) under the New Lease, and $80,600 of the anticipated $382,000 in
related build-out costs. OASIS shall provide the amount of $80,600 to the
Company within 30 days of the date of this Agreement.
SECTION 6.3. CONSENTS AND APPROVALS; FILINGS AND NOTICES.
The Company and OASIS shall use reasonable efforts to as
promptly as possible make all filings with, provide all notices to and obtain
all consents and approvals from third parties required to be obtained by the
Company and OASIS in connection with the transactions contemplated hereunder,
including, without limitation, all filings, if any, with notices to and consents
and approvals from Government Entities and other persons.
SECTION 6.4. ACCESS AND INFORMATION.
From the date hereof to the Closing Date, the Company shall
afford to EGLOBE and its officers, employees, accountants, consultants, legal
counsel, and other representatives of EGLOBE full and complete access during
normal business hours (with reasonable advance notice) to the properties, books,
records, contracts, facilities, premises, and equipment relating to the Assets
and the Company (including without limitation, operating and financial
information with respect to the Company) as EGLOBE may reasonably request,
provided that EGLOBE and its agents, employees and representatives enter into a
commercially reasonable confidentiality and nondisclosure agreement with the
Company. In the event that EGLOBE determines after the Closing Date that it is
necessary or desirable to audit the financial statements of the Company for any
period prior to the Closing Date, OASIS agrees to cooperate with EGLOBE, the
Company and auditors for the Company to the extent necessary to complete such
audit in a timely manner.
In addition, the Company and OASIS shall, and shall ensure
that their respective affiliates shall, afford to EGLOBE and the LLC and their
respective officers, employees, accountants, consultants and legal counsel,
access at any time and from time to time following the date hereof, but during
business days and normal business hours, to the books, records and other
information (including without limitation, operating and financial information),
contracts, facilities and premises relating to the Assets, OASIS and all other
companies, divisions or other entities or portions thereof that EGLOBE and the
LLC may reasonably request for purposes of preparing audited financial
statements pursuant to EGLOBE's reporting requirements under the Securities Act
of 1933 and the Securities Exchange Act of 1934 (the "Securities Laws"), make
available the personnel, accountants and other representatives having knowledge
regarding the same and cooperate with and furnish assistance to EGLOBE (provided
that the Company and OASIS shall not be obligated to incur more than nominal
cost or expense), as EGLOBE may reasonably request in connection with the
preparation of financial statements with respect to the business of the Company.
In connection with an audit of such financial statements, if required, the
Company and its financial and other management agree to provide certain
representations in the form of a representation letter to BDO Xxxxxxx, LLP,
independent certified public accountants, in accordance with
23
generally accepted auditing standards. The provision of such financial statement
representations and information and assistance shall be reasonably prompt. The
Company and OASIS shall ensure that none of such information is destroyed during
the three year period commencing on the Closing Date unless EGLOBE has been
afforded a reasonable opportunity to obtain and make copies of the information.
Any document or information produced or disclosed pursuant to
this Section 6.4 in any form is Confidential Information and EGLOBE and the LLC
shall not permit the duplication, use, or disclosure of any such Confidential
Information by or to any third party (other than officers, employees,
accountants, consultants and legal counsel) except as required pursuant to the
Securities Laws and permitted hereunder, unless such duplication, use or
disclosure is specifically authorized by the Company or OASIS in writing prior
to any disclosure. EGLOBE and the LLC shall use commercially reasonable
diligence, and in no event less than that degree of care that such party uses in
respect to its own confidential information of like nature, to prevent the
unauthorized disclosure or reproduction of such information.
SECTION 6.5. CONFIDENTIALITY.
Each party shall hold in strict confidence all documents and
information concerning the other parties and their business and properties
(except that any party may disclose such documents and information to any
Government Entity reviewing the transactions contemplated hereby or as required
in such party's judgment pursuant to any legal requirement or in furtherance of
the transactions contemplated herein), and if the transactions contemplated
hereby should not be consummated, such confidence shall be maintained, and all
such documents and information (in whatever form) and copies thereof shall
immediately thereafter be destroyed, or returned to the party originally
furnishing same, subject to the terms of the existing non-disclosure agreement
between EGLOBE and the Company.
SECTION 6.6. FURTHER ACTION; REASONABLE BEST EFFORTS.
Each of the parties shall use reasonable best efforts to take,
or cause to be taken, all appropriate action, and do, or cause to be done, all
things necessary, proper or advisable under applicable Laws or otherwise to
consummate and make effective the transactions contemplated by this Agreement as
promptly as practicable, including, without limitation, using its reasonable
best efforts to obtain all licenses, permits, consents, approvals,
authorizations, qualifications and orders of Government Entities and other
parties as are necessary for the transactions contemplated herein.
SECTION 6.7. PUBLIC ANNOUNCEMENTS.
Each of OASIS, the Company and EGLOBE shall consult with each
other before issuing any press release or otherwise making any public statements
with respect to the transactions contemplated hereunder and shall not issue any
such press release or make any such public statement prior to such consultation,
except as may be required by Law.
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SECTION 6.8. NO SOLICITATION.
From the date of this Agreement until the earlier of the
Closing Date or the termination of this Agreement, neither the Company nor any
of their affiliates or any person acting on behalf of such party shall (a)
solicit or favorably respond to indications of interest from, or enter into
negotiations with, any third party for any proposed merger, consolidation, sale
or acquisition of the Company, the Assets or any capital stock of the Company or
(b) furnish or cause to be furnished any nonpublic information concerning the
Company to any person other than in the ordinary course of business or pursuant
to applicable Law and after prior written notice to EGLOBE.
ARTICLE VII
CLOSING CONDITIONS
SECTION 7.1. CONDITIONS TO OBLIGATIONS OF EGLOBE AND EOI.
The obligations of EGLOBE and EOI to effect the transactions
contemplated in this Agreement are also subject to the following conditions, any
or all of which may be waived by the EGLOBE and EOI, in whole or in part, to the
extent permitted by applicable law:
(a) Representations and Warranties. The representations and
warranties of the Company and OASIS made in this Agreement shall be true and
correct in all material respects, on and as of the Closing Date with the same
effect as though such representations and warranties had been made on and as of
the Closing Date (provided that any representation or warranty contained herein
that is qualified by a materiality standard shall not be further qualified
hereby), except for representations and warranties that speak as of a specific
date or time other than the Closing Date (which need only be true and correct in
all material respects as of such date or time). EGLOBE shall have received a
certificate of the president or vice-president-finance of the Company and OASIS
to that effect.
(b) Agreements and Covenants. The agreements and covenants of
the Company and OASIS required to be performed on or before the Closing Date
shall have been performed in all material respects. EGLOBE shall have received a
certificate of the president or vice president-finance of the Company and OASIS
to that effect.
(c) No Order. No Government Entity or federal or state court
of competent jurisdiction shall have enacted, issued, promulgated, enforced or
entered any statute, rule, regulation, executive order, decree, judgment,
injunction or other order (whether temporary, preliminary or permanent), in any
case which is in effect and which prevents or prohibits consummation of the
transactions contemplated in this Agreement; provided, however, that the parties
shall use their reasonable efforts to cause any such decree, judgment,
injunction or other order to be vacated or lifted, and any such action or
proceeding to be dismissed.
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(d) Legal Proceedings. No action or proceeding before any
Governmental Entity shall have been instituted or threatened (and not
subsequently settled, dismissed, or otherwise terminated) which is reasonably
expected to restrain, prohibit or invalidate the transactions contemplated by
this Agreement other than an action or proceeding instituted or threatened by
EGLOBE.
(e) No Company Material Adverse Effect. Since December 31,
1998, no Company Material Adverse Effect have occurred and be continuing.
(f) Required Consents. The Company shall have delivered to
EGLOBE at or before Closing all consents, assignments or notices listed on
Schedule 2.6.
(g) Side Letter. The Company and OASIS shall have executed and
delivered the Side Letter in the form of EXHIBIT A Attached hereto.
(h) Employment and Stock Options Agreements. Each of Xxxxxxx
X. Xxxxxxx and Xxx X. Xxxxx shall have executed and delivered the employment
agreements in the form of EXHIBITS G-1 and G-2 attached hereto, and the Stock
Option Agreements in the form of EXHIBITS H-1 and H-2 attached hereto.
(i) Legal Opinion. EGLOBE shall have received an opinion of
counsel from the in-house counsel for the Company and OASIS, in form and
substance reasonably satisfactory to EGLOBE.
(j) Termination of Employee Rights Agreements. The Company
shall have terminated any Employee Appreciation Rights Plan or Appreciation
Rights Agreements previously entered into by Company and all outstanding options
to purchase shares of the Company's capital stock.
(k) Company Stock Certificates. OASIS shall have delivered to
the LLC ertificates for the Company Shares as provided in Section 1.4 hereof.
(l) Tax Matters Agreement. OASIS shall have delivered the Tax
Matters Agreement in the form of EXHIBIT I attached hereto (the "Tax Matters
Agreement").
(m) Loan Documents. The Company shall have executed and
delivered the Note in the form of Exhibit C and the Security Agreement in the
form of Exhibit D.
(n) Other Closing Documents. The Company and OASIS shall have
executed and/or delivered to EGLOBE such additional documents, certificates,
opinions and agreements as EGLOBE may reasonably request.
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SECTION 7.2. CONDITIONS TO OBLIGATIONS OF THE COMPANY AND OASIS.
The obligations of the Company and OASIS to effect the
transactions contemplated in this Agreement are also subject to the following
conditions any or all of which may be waived by OASIS, in whole or in part, to
the extent permitted by applicable law:
(a) Representations and Warranties. The representations and
warranties of EGLOBE made in this Agreement shall be true and correct in all
material respects, on and as of the Closing Date with the same effect as though
such representations and warranties had been made on and as of the Closing Date
(provided that any representation or warranty contained herein that is qualified
by a materiality standard shall not be further qualified hereby), except for
representations and warranties that speak as of a specific date or time other
than the Closing Date (which need only be true and correct in all material
respects as of such date or time). The Company shall have received a certificate
of the Chief Executive Officer or Chief Financial Officer of EGLOBE to that
effect.
(b) Agreements and Covenants. The agreements and covenants of
EGLOBE required to be performed on or before the Closing Date shall have been
performed in all material respects. The Company shall have received a
certificate of the Chief Executive Officer or Chief Financial Officer of EGLOBE
to that effect.
(c) No Order. No Government Entity or federal or state court
of competent jurisdiction shall have enacted, issued, promulgated, enforced or
entered any statute, rule, regulation, executive order, decree, judgment,
injunction or other order (whether temporary, preliminary or permanent), in any
case which is in effect and which prevents or prohibits consummation of the any
other transactions contemplated in this Agreement; provided, however, that the
parties shall use their reasonable efforts to cause any such decree, judgment,
injunction or other order to be vacated or lifted, and any such action or
proceeding to be dismissed.
(d) Legal Proceedings. No action or proceeding before any
Government Entity shall have been instituted or threatened (and not subsequently
settled, dismissed, or otherwise terminated) which is reasonably expected to
restrain, prohibit or invalidate the transactions contemplated by this Agreement
other than an action or proceeding instituted or threatened by OASIS or the
Company.
(e) No EGLOBE Material Adverse Effect. Since the date of this
Agreement, no EGLOBE Material Adverse Effect shall have occurred or be
continuing.
(f) Side Letter. EGLOBE, the EOI and the LLC shall have
executed and delivered the Side Letter attached hereto as EXHIBIT A.
(g) Legal Opinion. The Company and OASIS shall have received a
legal opinion from in-house counsel to EGLOBE, in form and substance reasonably
satisfactory to the Company and OASIS.
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(h) Delivery of EGLOBE Securities. EGLOBE shall have delivered
to EOI, and EOI shall have delivered to the LLC, certificates for the EGLOBE
Shares and the EGLOBE Warrants in the form of EXHIBITS X-0, X-0 and B-3 attached
hereto.
(i) Loan Agreements. EGLOBE, EOI and the LLC shall have
executed and delivered, or cause the execution and delivery of, the Guarantees
in the form of Exhibit E and the Pledge Agreements in the form of EXHIBIT F, and
the other instruments and documents required by the terms of such agreements.
(j) Other Closing Documents. EGLOBE shall have executed and/or
delivered to the Company such additional documents, certificates, opinions and
agreements as the Company may reasonably request.
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
SECTION 8.1. TERMINATION.
This Agreement may be terminated at any time prior to the Closing Date:
(a) by mutual written consent of EGLOBE and the Company;
(b) by EGLOBE if the Company shall have breached in any
material respect any of its representations, warranties, covenants or agreements
contained in this Agreement, or any such representation or warranty shall have
become untrue in any material respect, in any such case such that the conditions
precedent to the obligations of EGLOBE to close specified in Section 7.2 will
not be satisfied;
(c) by the Company if EGLOBE shall have breached in any
material respect any of its representations, warranties, covenants or agreements
contained in this Agreement, or any such representation or warranty shall have
become untrue in any material respect, in any such case such that the conditions
precedent to the obligation of the Company to close specified in Section 8.3
will not be satisfied;
(d) by either EGLOBE or the Company if any decree, permanent
injunction, judgment, order or other action by any court of competent
jurisdiction or any Government Entity preventing or prohibiting consummation of
the Acquisition shall have become final and nonappealable; or
28
(e) by either EGLOBE or the Company if the Closing has not
occurred on or prior to September __, 1999 (unless such date shall be extended
by the mutual written consent of the parties); provided, that the right to
terminate this Agreement under this Section 8.1(e) shall not be available to any
party whose breach of representations, warranties, covenants or agreements
contained in this Agreement has been the cause of, or resulted in, the failure
of the Closing to occur by such date or the inability of such condition to be
satisfied.
SECTION 8.2. EFFECT OF TERMINATION.
If this Agreement is terminated pursuant to Section 8.1, this
Agreement shall forthwith become void and there shall be no liability or
obligation on the part of any party hereto, except that the provisions of
Sections 6.4 and 10.11 shall not be extinguished but shall survive such
termination, and nothing herein shall relieve any party from liability for fraud
or any intentional breach hereof and each party shall be entitled to any
remedies at law or in equity for fraud or such intentional breach.
SECTION 8.3. AMENDMENT.
This Agreement may not be amended except by an instrument in
writing signed by the parties hereto.
SECTION 8.4. WAIVER.
At any time prior to the Closing Date, the parties may (a)
extend the time for the performance of any of the obligations or other acts of
the other party, (b) waive any inaccuracies in the representations and
warranties contained in this Agreement or in any document delivered pursuant to
this Agreement and (c) waive compliance by the other party with any of the
agreements or conditions contained in this Agreement. Any such extension or
waiver shall be valid only if set forth in an instrument in writing signed on
behalf of such party. No delay or failure on the part of any party hereto in
exercising any right, power or privilege under this Agreement or under any other
instrument or document given in connection with or pursuant to this Agreement
shall impair any such right, power or privilege or be construed as a waiver of
any default or any acquiescence therein. No single or partial exercise of any
such right, power or privilege shall preclude the further exercise of such
right, power or privilege, or the exercise of any other right, power or
privilege.
ARTICLE IX
SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION; REMEDIES
SECTION 9.1. SURVIVAL OF REPRESENTATIONS.
All representations, warranties, covenants, indemnities and
other agreements made by any party to this Agreement herein or pursuant hereto,
shall be deemed
29
made on and as of the Closing as though such representations, warranties,
covenants, indemnities and other agreements were made on and as of such date,
and all such representations, warranties, covenants, indemnities and other
agreements shall survive the Closing and any investigation, audit or inspection
at any time made by or on behalf of any party hereto, as follows: (a) unless
otherwise specified below, representations and warranties shall survive for a
period of two (2) years after the Closing Date; (b) representations and
warranties with respect to Taxes and those representations and warranties in
Section 2.18 shall survive until the expiration of the applicable statute of
limitations; (c) representations, warranties and covenants for matters relating
to title to the Company Shares shall continue in full force and effect in
perpetuity; and (d) the covenants and agreements in this Article IX and the
covenants and agreements which by their terms survive the Closing shall continue
in full force and effect until fully discharged. Notwithstanding anything herein
to the contrary, any representation, warranty, covenant or agreement which is
the subject of a claim which is asserted in writing prior to the expiration of
the applicable period set forth above shall survive with respect to such claim
or dispute until the final resolution thereof.
SECTION 9.2. AGREEMENT OF THE COMPANY AND OASIS TO INDEMNIFY.
Subject to the conditions and provisions of this Article IX,
the Company and OASIS hereby agree to indemnify, defend and hold harmless EGLOBE
and its officers, directors, employees, agents and representatives
(collectively, the "EGLOBE Indemnified Persons") from and against and in respect
of all Losses resulting from, imposed upon or incurred by the EGLOBE Indemnified
Persons, directly or indirectly, by reason of or resulting from (a) any material
misrepresentation or material breach of any representation or warranty, or
material noncompliance with any other agreements, given or made by the Company
or OASIS in this Agreement or in any document, certificate or agreement
furnished by or on behalf of any such party pursuant to this Agreement; (b) any
claims arising under or related to the Asset Purchase Agreement dated as of July
2, 1999 between the Company and Internet Travel Network, Inc. (the "ITN
Agreement"); (c) any increase in the fees currently charged by Vincam Human
Resources, Inc. ("Vincam") for employment services rendered by Vincam to the
Company under that certain agreement dated May 16, 1996 between OASIS and
Vincam, provided that indemnification will only be provided for the period from
the Closing until December 31, 1999; or (d) any loss of any existing customer of
the Company directly caused by the relocation of the operations of the Company
to the new facility in the Mall of the Americas in Miami, Florida. It shall be a
condition to the right of any EGLOBE Indemnified Person to indemnification
pursuant to this Section that such EGLOBE Indemnified Person shall assert a
claim for such indemnification within the applicable survival periods set forth
in Section 9.1 hereof.
SECTION 9.3. AGREEMENT OF EGLOBE TO INDEMNIFY.
Subject to the conditions and provisions of this Article IX,
EGLOBE and EOI hereby agree to indemnify, defend and hold harmless the Company
and OASIS and their respective officers, directors, employees, agents and
representatives (collectively, the "OASIS Indemnified
30
Persons") from and against and in respect of all Losses resulting from, imposed
upon or incurred by the Company and OASIS, directly or indirectly, by reason of
or resulting from any material misrepresentation or material breach of any
representation or warranty, or material noncompliance with any other agreements,
given or made by EGLOBE and EOI in this Agreement or in any document,
certificate or agreement furnished by or on behalf of EGLOBE and EOI pursuant to
this Agreement. It shall be a condition to the rights of any OASIS Indemnified
Person to indemnification pursuant to this Section that such party shall assert
a claim for such indemnification within the applicable survival periods set
forth in Section 9.1 hereof.
SECTION 9.4. CONDITIONS OF INDEMNIFICATION.
The obligations and liabilities of the Company, OASIS, EGLOBE
and EOI hereunder with respect to their respective indemnities pursuant to this
Article IX, resulting from any Third Party Claim shall be subject to the
following terms and conditions:
(a) The party seeking indemnification (the "Indemnified
Party") must give the other party (the "Indemnifying Party"), notice of any
Third Party Claim which is asserted against, imposed upon or incurred by the
Indemnified Party and which may give rise to liability of the Indemnifying Party
pursuant to this Article IX, stating (to the extent known or reasonably
anticipated) the nature and basis of such Third Party Claim and the amount
thereof; provided that the failure to give such notice shall not affect the
rights of the Indemnified Party hereunder except to the extent that the
Indemnifying Party shall have suffered actual material damage by reason of such
failure.
(b) Subject to Section 9.4(c) below, the Indemnifying Party
shall have the right to undertake, by counsel or other representatives of its
own choosing, the defense of such Third Party Claim at the Indemnifying Party's
risk and expense.
(c) In the event that (i) the Indemnifying Party shall elect
not to undertake such defense, (ii) within a reasonable time after notice from
the Indemnified Party of any such Third Party Claim, the Indemnifying Party
shall fail to undertake to defend such Third Party Claim, or (iii) there is a
reasonable probability that such Third Party Claim may materially and adversely
affect the Indemnified Party other than as a result of money damages or other
money payments, then the Indemnified Party (upon further written notice to the
Indemnifying Party) shall have the right to undertake the defense, compromise or
settlement of such Third Party Claim, by counsel or other representatives of its
own choosing, on behalf of and for the account and risk of the Indemnifying
Party, provided, however, that in no event shall the Indemnifying Party be
required to pay for more than one counsel for all the Indemnified Parties with
respect to such Third Party claim. In the event that an Indemnified Party
undertakes the defense of a Third Party Claim under this Section 9.4(c), the
Indemnifying Party shall pay to the Indemnified Party, in addition to the other
sums required to be paid hereunder, the reasonable costs and expenses incurred
by the Indemnified Party in connection with such defense, compromise or
settlement as and when such costs and expenses are so incurred. No Indemnified
Party shall, without the Indemnifying Party's written consent, settle
31
or compromise such Third Party Claim (provided that such consent shall not be
unreasonably withheld or delayed).
(d) Anything in this Section 9.4 to the contrary
notwithstanding, (i) the Indemnifying Party shall not, without the Indemnified
Party's written consent, settle or compromise such Third Party Claim or consent
to entry of any judgment which does not include as an unconditional term thereof
the giving by the claimant or the plaintiff to the Indemnified Party of a
release from all liability in respect of such Third Party Claim in form and
substance reasonably satisfactory to the Indemnified Party; (ii) in the event
that the Indemnifying Party undertakes the defense of such Third Party Claim,
the Indemnified Party, by counsel or other representative of its own choosing
and at its sole cost and expense, shall have the right to participate in the
defense, compromise or settlement thereof and each party and its counsel and
other representatives shall cooperate with the other party and its counsel and
representatives in connection therewith; and (iii) in the event that the
Indemnifying Party undertakes the defense of such Third Party Claim, the
Indemnifying Party shall have an obligation to keep the Indemnified Party
informed of the status of the defense of such Third Party Claim and furnish the
Indemnified Party with all documents, instruments and information that the
Indemnified Party shall reasonably request in connection therewith.
SECTION 9.5 LIMITATIONS.
(a) Anything contained herein to the contrary notwithstanding,
no claim shall be made against OASIS or the Company under Section 9.2(b) of this
Agreement until the aggregate of any such damages exceeds $100,000; provided,
however, if the aggregate of such damage exceeds $100,000, OASIS or the Company
shall be liable for all such damages, not just the excess over $100,000.
Anything contained herein to the contrary notwithstanding, OASIS and the Company
shall have no liability under this Agreement for an amount greater than the
aggregate consideration received by OASIS under this Agreement.
(b) OASIS hereby irrevocably waives any and all right to
recourse against the Company with respect to any misrepresentation or breach of
any representation, warranty or indemnity, or noncompliance with any conditions
or covenants, given or made by OASIS or the Company in this Agreement or any
document, certificate or agreement entered into or delivered pursuant hereto.
OASIS shall not be entitled to contribution from, subrogation to or recovery
against the Company with respect to any liability of OASIS or the Company that
may arise under or pursuant to this Agreement or the transactions contemplated
hereby.
SECTION 9.6. EXCLUSIVE REMEDY.
The remedies provided by this Article IX shall be the
exclusive remedies of the parties for any breach of the provisions of this
Agreement, other than claims based upon fraud and intentional misrepresentation.
ARTICLE X
32
GENERAL PROVISIONS
SECTION 10.1. NOTICES.
All notices and other communications given or made pursuant
hereto shall be in writing and shall be deemed to have been duly given or made
as of the date delivered, mailed or transmitted, and shall be effective upon
receipt, if delivered personally, mailed by registered or certified mail
(postage prepaid, return receipt requested) to the parties at the following
addresses (or at such other address for a party as shall be specified by like
changes of address) or sent by electronic transmission to the telecopier number
specified below:
(a) If to EGLOBE or EOI: eGlobe, Inc., 0000 00xx
Xxxxxx, XX, Xxxxx 000 Xxxxxxxxxx, X.X. 00000
Facsimile No.: (000) 000-0000 Attention:
Xxxxxx Xxxxx
(b) If to the Company or OASIS: Oasis
Reservation Services, Inc., 0000 Xxxxxxxx
Xxxxxx, Xxxxx 0000 Xxxxx, Xxxxxxx 00000
Telecopier No: (000) 000-0000 Attention:
Xxxx X. Sicilian
33
with a copy to:
Xxxxxx & Xxxxx LLP, 000 Xxxxx Xxxxxxxx
Xxxxxxxxx, Xxxxx 0000 Xxxxx, Xxxxxxx 00000
Facsimile No.: (000) 000-0000 Attention:
Xxxxxx X. Xxxxx, XX., Esq.
SECTION 10.2. CERTAIN DEFINITIONS.
For purposes of this Agreement, the term:
(a) "affiliate" of any Person means any other Person that
directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, the first mentioned person.
(b) "Affiliated Group" means any affiliated group within the
meaning of Code '1504(a).
(c) "Assets" shall mean the assets, rights and properties,
whether owned, leased or licensed, real, personal or mixed, tangible or
intangible, that are used, useful or held for use in connection with the
business of the Company. The Assets expressly exclude any of the consideration
received and to be received under the ITN Agreement (and the parties acknowledge
that all of the rights of the Company under such agreement have been assigned to
OASIS).
(d) "EGLOBE Material Adverse Effect" means any material adverse
effect on the assets, business, financial condition or results of operations of
the EGLOBE and its subsidiaries, taken as a whole.
(e) "Company Material Adverse Effect" means any material
adverse effect on the Assets or on the business, financial condition or results
of operations of the Company.
(f) "control" (including the terms "controlled by" and "under
common control with") means the possession, directly or indirectly or as trustee
or executor, of the power to direct or cause the direction of the management or
policies of a Person, whether through the ownership of stock or as trustee or
executor, by contract or credit arrangement or otherwise.
(g) "Employee Benefit Plan" means any plan, program or
arrangement, whether or not written, that is or was an "employee benefit plan"
as such term is defined in Section 3(3) of ERISA and (a) which was or is
established or maintained by Seller or any Subsidiary; (b) to which the Company
or any Subsidiary contributed or was obligated to contribute or to fund or
provide benefits; or (c) which provides or promises benefits to any person who
performs or who has performed services for the Company or any Subsidiary and
because of those services is or has been (i) a participant therein or (ii)
entitled to benefits thereunder.
34
(h) "Encumbrances" means mortgages, liens, pledges,
encumbrances, security interests, deeds of trust, options, encroachments,
reservations, orders, decrees, judgments, restrictions, charges, contract
rights, claims or equity interest of any kind.
(i) "Government Entity" means any United States or other
national, state, municipal or local government, domestic or foreign, any
subdivision, agency, entity, commission or authority thereof, or any
quasi-governmental or private body exercising any regulatory, taxing or other
governmental or quasi-governmental authority.
(j) "knowledge of the Company and OASIS" or "to the Company's
and OASIS' knowledge" means the actual, current personal knowledge of Xxxx X.
Sicilian, but without independent investigation beyond his duties as an officer
and director of the Company.
(k) "Laws" means all foreign, federal, state and local
statutes, laws, ordinances, regulations, rules, resolutions, orders,
determinations, writs, injunctions, awards (including, without limitation,
awards of any arbitrator), judgments and decrees applicable to the specified
persons or entities.
(l) "Losses" means all demands, losses, claims, actions or
causes of action, assessments, damages, liabilities, costs and expenses,
including, without limitation, interest, penalties and reasonable attorneys'
fees and disbursements.
(m) "Material Contracts" means, collectively, all contracts
which (a) involve an aggregate annual expenditure by the Company of $5,000 or
more, (b) are not cancelable by the Company without cost on 60 days or less
notice, (c) are with any current customer, supplier or distribution partner and
have an unexpired term of 2 or more years, and (d) restrict or regulate in any
manner the conduct of business of the Company, require the referral of any
business by the Company, or require or purport to require the payment of money
or the acceleration of performance of any obligations of the Company by virtue
of the Closing and "Material Contract" means each of the Material Contracts,
individually.
(n) "Material Leases" means, collectively, all leases which (a)
involve an aggregate annual expenditure by the Company of $5,000 or more, (b)
are not cancelable by the Company without cost on 60 days or less notice, or (c)
have a term which extends for more than one year from the Closing and "Material
Lease" means each of the Material Leases, individually.
(o) "Other Arrangement" means a benefit program or practice
providing for bonuses, incentive compensation, vacation pay, severance pay,
insurance, restricted stock, stock options, employee discounts, company cars,
tuition reimbursement or any other perquisite or benefit (including, without
limitation, any fringe benefit under Section 132 of the Code) to employees,
officers or independent contractors that is not an Employee Benefit Plan.
(p) "Person" means an individual, corporation, partnership,
association, trust, unincorporated organization, other entity or group.
35
(q) "Subsidiary" means a corporation, partnership, joint
venture or other entity of which the Company owns, directly or indirectly, at
least 50% of the outstanding securities or other interests the holders of which
are generally entitled to vote for the election of the board of directors or
other governing body or otherwise exercise control of such entity.
(r) "Third Party Claim" means any claim or other assertion of
liability by a third party.
SECTION 10.3. HEADINGS.
The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
SECTION 10.4. SEVERABILITY.
If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of law or public policy, all
other conditions and provisions of this Agreement shall nevertheless 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
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that transactions contemplated hereby are fulfilled to the extent possible.
SECTION 10.5. ENTIRE AGREEMENT.
(a) This Agreement (together with the Exhibits, the Schedules
and the other documents delivered pursuant hereto) constitutes the entire
agreement of the parties and supersedes all prior agreements and undertakings,
both written and oral, between the parties, or any of them, with respect to the
subject matter hereof.
(b) In the event of any inconsistency between the provisions in
the body or Schedules of this Agreement and the Tax Matters Agreement, the
provisions in the Tax Matters Agreement shall control.
SECTION 10.6. SPECIFIC PERFORMANCE.
The transactions contemplated by this Agreement are unique.
Accordingly, each of the parties acknowledges and agrees that, in addition to
all other remedies to which it may be entitled, each of the parties hereto is
entitled to a decree of specific performance, provided such party is not in
material default hereunder.
36
SECTION 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. Subject to the preceding sentence, this Agreement shall be binding
upon, inure to the benefit of and be enforceable by the parties and their
respective successors and assigns.
SECTION 10.8. THIRD PARTY BENEFICIARIES.
This Agreement shall be binding upon and inure solely to the
benefit of each party hereto, and nothing in this Agreement, express or implied,
is intended to or shall confer upon any other Person any right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement, except for
the EGLOBE Indemnified Persons and OASIS Indemnified Persons under Article IX
hereof.
SECTION 10.9. GOVERNING LAW.
This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without giving effect to
applicable choice of law principles).
SECTION 10.10. COUNTERPARTS.
This Agreement may be executed and delivered in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed and delivered shall be deemed to be an original but all
of which taken together shall constitute one and the same agreement.
SECTION 10.11. FEES AND EXPENSES.
Except as otherwise provided for in this Agreement, each party
hereto shall pay its own fees, costs and expenses incurred in connection with
this Agreement and in the preparation for and consummation of the transactions
provided for herein.
37
IN WITNESS WHEREOF, the parties hereto have caused this
CONTRIBUTION AGREEMENT to be executed and delivered as of the date first written
above.
EGLOBE, INC.
By:
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Name:
----------------------------------------
Title:
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EGLOBE/OASIS, INC.
By:
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Name:
----------------------------------------
Title:
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OASIS RESERVATIONS SERVICES, INC.
By:
----------------------------------------
Name:
----------------------------------------
Title:
----------------------------------------
OUTSOURCED AUTOMATED
SERVICES AND INTEGRATED
SOLUTIONS, INC.
By:
----------------------------------------
Name:
----------------------------------------
Title:
----------------------------------------
EGLOBE/OASIS RESERVATIONS LLC
By:
----------------------------------------
Name:
----------------------------------------
Title:
----------------------------------------
38
EXHIBITS AND SCHEDULES
----------------------
Exhibit A Side Letter
Exhibit X-0, X-0, X-0 EGLOBE Warrants
Exhibit C Note
Exhibit D Security Agreement
Exhibit E Guaranty Agreement
Exhibit F Pledge Agreement
Exhibit G-1 Employment Agreement
Exhibit G-2 Employment Agreement
Exhibit H-1 Option Agreement
Exhibit H-2 Option Agreement
Exhibit I Tax Allocation Agreement
Schedule 2.3 Indebtedness
Schedule 2.4 Net Working Capital
Schedule 2.6 Consents
Schedule 2.7 Financial Statements
Schedule 2.8 Accounts Receivable
Schedule 2.9 Encumbrances
Schedule 2.10 Material Leases
Schedule 2.11 Material Contracts
Schedule 2.12 Real Property Leases
Schedule 2.14 Litigation
Schedule 2.16 Intellectual Property
Schedule 2.17 Taxes and Assessments
Schedule 2.18 Employees
Schedule 2.19 Related Party Transactions
Schedule 2.22 Brokers
Schedule 4.3 Capitalization/EGLOBE
Schedule 4.6 Consents/EGLOBE
Schedule 4.8 Material Changes/EGLOBE
Schedule 4.9 EGLOBE Material Contracts/EGLOBE
Schedule 4.10 Litigation/EGLOBE
Schedule 4.11 Taxes and Assessments/EGLOBE
