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EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
AMONG
SS & CO., INC.,
SENERCOMM, INC.
AND
VERSO TECHNOLOGIES, INC.
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TABLE OF CONTENTS
PAGE
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ARTICLE I - THE MERGER............................................................1
1.1 THE MERGER.............................................................1
1.2 SURVIVING CORPORATION..................................................1
1.3 MERGER CONSIDERATION...................................................1
1.4 CONVERSION OF SHARES...................................................2
1.5 CLOSING................................................................2
1.6 ARTICLES OF INCORPORATION..............................................2
1.7 BYLAWS.................................................................2
1.8 DIRECTORS AND OFFICERS.................................................2
ARTICLE II - REPRESENTATIONS AND WARRANTIES OF ACQUISITION CORP...................2
2.1 ORGANIZATION AND QUALIFICATION.........................................2
2.2 AUTHORITY; NON-CONTRAVENTION; APPROVALS................................3
2.3 BROKERS AND FINDERS....................................................3
ARTICLE III - REPRESENTATIONS AND WARRANTIES OF VERSO AND SENERCOMM...............4
3.1 ORGANIZATION AND QUALIFICATION.........................................4
3.2 CAPITALIZATION.........................................................4
3.3 AUTHORITY; NON-CONTRAVENTION; APPROVALS................................5
3.4 SENERCOMM BALANCE SHEET................................................6
3.5 CONTRACTS; OTHER OBLIGATIONS AND LIABILITIES...........................6
3.6 LITIGATION.............................................................6
3.7 NO VIOLATION OF LAW....................................................6
3.8 ENVIRONMENTAL..........................................................6
3.9 TAXES 7
3.10 BROKERS AND FINDERS....................................................8
ARTICLE IV - CONDUCT OF BUSINESS PENDING THE MERGER...............................8
4.1 CONDUCT OF BUSINESS BY SENERCOMM PENDING THE TRANSACTION...............8
4.2 ACTIONS BY ▇▇▇▇▇.......................................................9
ARTICLE V - ADDITIONAL AGREEMENTS.................................................9
5.1 RETURN OF INFORMATION..................................................9
5.2 EXPENSES AND FEES......................................................9
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5.3 AGREEMENT TO COOPERATE................................................10
5.4 PUBLIC STATEMENTS.....................................................10
5.5 NOTIFICATION OF CERTAIN MATTERS.......................................10
5.6 DIRECTORS' AND OFFICERS' INDEMNIFICATION..............................10
5.7 EMPLOYMENT AND CONSULTING AGREEMENTS..................................10
5.8 TAXES.................................................................10
5.9 POST-CLOSING COOPERATION..............................................11
5.10 INSURANCE PLANS.......................................................12
ARTICLE VI - CONDITIONS..........................................................12
6.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE TRANSACTION.......12
6.2 CONDITION TO VERSO'S AND SENERCOMM'S OBLIGATIONS......................12
6.3 CONDITIONS TO ACQUISITION CORP.'S OBLIGATIONS.........................13
ARTICLE VII - TERMINATION, AMENDMENT AND WAIVER..................................14
7.1 TERMINATION...........................................................14
7.2 EFFECT OF TERMINATION.................................................14
7.3 AMENDMENT.............................................................15
7.4 WAIVER................................................................15
ARTICLE VIII - NATURE AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES.............15
8.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES............................15
8.2 RELIANCE..............................................................15
8.3 NATURE OF STATEMENTS..................................................16
ARTICLE IX - INDEMNIFICATION.....................................................16
9.1 INDEMNIFICATION BY VERSO..............................................16
9.2 INDEMNIFICATION BY THE SURVIVING CORPORATION..........................16
9.3 THIRD PARTY CLAIMS....................................................17
9.4 CLAIMS BETWEEN THE PARTIES............................................18
ARTICLE X - GENERAL PROVISIONS...................................................19
10.1 NOTICES...............................................................19
10.2 INTERPRETATION........................................................20
10.3 MISCELLANEOUS.........................................................20
10.4 COUNTERPARTS..........................................................20
10.5 PARTIES IN INTEREST...................................................20
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER, dated as of January 10, 2001
("AGREEMENT"), is made and entered into by and among SS & Co., Inc., a Florida
corporation ("ACQUISITION CORP."), Senercomm, Inc., a Florida corporation
("SENERCOMM"), and Verso Technologies, Inc., a Minnesota corporation ("VERSO").
RECITALS
A. The Boards of Directors of Acquisition Corp., Senercomm and
Verso each have approved the merger of Senercomm with and into Acquisition Corp.
upon the terms and subject to the conditions set forth herein (the "MERGER") and
deem it advisable and in the best interests of their respective shareholders
that the Merger be consummated.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound, agree as follows:
ARTICLE I
THE MERGER
1.1. THE MERGER. Simultaneously with the Closing (defined below),
the parties hereto will effect the Merger by filing the required number of
originals of the articles of merger with the Florida Secretary of State. The
Merger will become effective at the time specified in the articles of merger
(the "EFFECTIVE TIME").
1.2. SURVIVING CORPORATION. At the Effective Time, Senercomm will
be merged with and into Acquisition Corp., in accordance with the applicable
provisions of the Florida Business Corporation Act, whereupon the separate
existence of Senercomm will cease and Acquisition Corp. will continue as the
surviving corporation (the "Surviving Corporation"). The identity, existence,
rights, privileges, powers, franchises, properties and assets of Acquisition
Corp. shall continue unaffected and unimpaired by the Merger, and all of the
rights, privileges, powers, franchises, properties, and assets of Senercomm
shall be vested in the Surviving Corporation.
1.3. MERGER CONSIDERATION. As consideration for the Merger,
Acquisition Corp., at the Closing, shall execute and deliver to Verso a
Promissory Note (the "NOTE") in the principal amount of $250,000 in the form
attached to this Agreement as Exhibit A. To secure Acquisition Corp.'s
obligations under the Note, at the Closing, Acquisition Corp. shall execute and
deliver to Verso a Security Agreement (the "SECURITY AGREEMENT") in the form
attached to this Agreement as Exhibit B.
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1.4. CONVERSION OF SHARES. At the Effective Time:
(a) Each share of Senercomm common stock outstanding
immediately prior thereto (the "SENERCOMM STOCK") shall, by virtue of
the Merger and without any action on the part of the holder thereof, be
canceled.
(b) Each share of common stock of Acquisition Corp.
issued and outstanding immediately prior thereto will, by virtue of the
Merger and without any action on the part of the holder thereof, be
converted into one share of the common stock of the Surviving
Corporation.
(c) Verso will cease to have any rights as a shareholder
of Senercomm.
1.5. CLOSING. The closing (the "CLOSING") of the Merger shall take
place at the offices of Verso or another location mutually agreeable to the
parties as promptly as practicable (but in any event within three business days)
following the date on which the last of the conditions set forth in Article VI
is fulfilled or waived, or at such other time and place as the parties shall
agree. The date on which the Closing occurs is referred to in this Agreement as
the "CLOSING DATE."
1.6. ARTICLES OF INCORPORATION. The articles of incorporation of
Acquisition Corp. as in effect immediately prior to the Effective Time will be
the articles of incorporation of the Surviving Corporation until further amended
in accordance with applicable law.
1.7. BYLAWS. The bylaws of Acquisition Corp. as in effect
immediately prior to the Effective Time will be the bylaws of the Surviving
Corporation until amended or repealed in accordance with applicable law.
1.8. DIRECTORS AND OFFICERS. Immediately after the Effective Time
of the Merger, the directors and officers of the Surviving Corporation will be
as set forth below, and will serve in such capacities until their respective
successors are duly elected and qualified:
Person Position(s)
------ -----------
▇▇▇▇▇ ▇▇▇▇▇ Sole Director, President, Secretary and
Treasurer
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF ACQUISITION CORP.
Acquisition Corp. represents and warrants to Verso and Senercomm that:
2.1. ORGANIZATION AND QUALIFICATION. Acquisition Corp. is a
corporation duly incorporated, validly existing and in good standing under the
laws of Florida, and has the
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requisite corporate power and authority to own, lease and operate its assets and
properties and to carry on its business as it is now being conducted.
Acquisition Corp. is qualified to do business and is in good standing in each
jurisdiction in which the properties owned, leased or operated by it or the
nature of the business conducted by it makes such qualification necessary. True,
accurate and complete copies of Acquisition Corp.'s charter (to be filed) and
by-laws, including all amendments, shall be delivered to Verso prior to the
Closing Date.
2.2. AUTHORITY; NON-CONTRAVENTION; APPROVALS.
(a) Acquisition Corp. has full corporate power and
authority to enter into this Agreement and to consummate the Merger.
The sole shareholder and the board of directors of Acquisition Corp.
have (i) determined that participating in the Merger is in Acquisition
Corp.'s best interests and (ii) approved this Agreement and the Merger.
No other corporate proceedings on the part of Acquisition Corp. are
necessary to authorize the execution and delivery of this Agreement or
the consummation by Acquisition Corp. of the Merger contemplated
hereby. This Agreement has been duly executed and delivered by
Acquisition Corp., and, assuming the due authorization, execution and
delivery hereof by Verso and Senercomm, constitutes a valid and legally
binding agreement of Acquisition Corp. enforceable against it in
accordance with its terms, except that such enforcement may be subject
to (x) bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting or relating to enforcement of creditors' rights
generally and (y) general equitable principles.
(b) The execution and delivery of this Agreement by
Acquisition Corp. does not violate, conflict with or result in a breach
of any provision of, or constitute a default (or an event which, with
notice or lapse of time or both, would constitute a default) under, or
result in the termination of, or accelerate the performance required
by, or result in a right of termination or acceleration under, or
result in the creation of any lien, security interest, charge or
encumbrance upon any of the properties or assets of Acquisition Corp.
under any of the terms, conditions or provisions of (i) Acquisition
Corp.'s charter and by-laws, or (ii) any statute, law, ordinance, rule,
regulation, judgment, decree, order, injunction, writ, permit or
license of any court or governmental authority applicable to
Acquisition Corp. or any of its properties or assets. The consummation
by Acquisition Corp. of the Merger will not result in any violation,
conflict, breach, termination, acceleration or creation of liens under
any of the terms, conditions or provisions described in clauses (i) or
(ii) of the preceding sentence.
(c) Except for the filing of articles of merger with the
Florida Secretary of State, no declaration, filing or registration
with, or notice to, or authorization, consent or approval of, any
governmental or regulatory body or authority is necessary for the
execution and delivery of this Agreement by Acquisition Corp. or the
consummation by Acquisition Corp. of the Merger contemplated hereby.
2.3. BROKERS AND FINDERS. Acquisition Corp. has not entered into
any contract, arrangement or understanding with any person or firm which may
result in the obligation of
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Acquisition Corp. to pay any finder's fees, brokerage or agent commissions or
other like payments in connection with the Merger.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF VERSO AND SENERCOMM
Verso and Senercomm represent and warrant to Acquisition Corp. that,
except as set forth in the disclosure schedule dated as of the date hereof and
signed by an authorized officer of each of Verso and Senercomm (the "DISCLOSURE
SCHEDULE") as attached hereto and made a part hereof, it being agreed that
disclosure of any item on the Disclosure Schedule shall be deemed disclosure
with respect to all sections of this Agreement:
3.1. ORGANIZATION AND QUALIFICATION. Senercomm is a corporation
duly incorporated, validly existing and in good standing under the laws of the
state of Florida and has the requisite corporate power and authority to own,
lease and operate its assets and properties and to carry on its business as it
is now being conducted. Senercomm is qualified to do business and is in good
standing in each jurisdiction in which the properties owned, leased or operated
by it or the nature of the business conducted by it makes such qualification
necessary, except where the failure to be so qualified and in good standing will
not, when taken together with all other such failures, be probable of resulting
in a liability, claim, loss or expense of greater than $30,000 (a "SENERCOMM
MATERIAL ADVERSE EFFECT"). True, accurate and complete copies of Senercomm's
charter and by-laws, in each case as in effect on the date hereof, including all
amendments, have heretofore been delivered to Acquisition Corp.
3.2. CAPITALIZATION.
(a) The authorized capital stock of Senercomm consists of
100,000 shares of common stock. As of the date hereof (i) 100,000
shares of the authorized common stock of Senercomm were validly issued
and are fully paid, nonassessable and free of preemptive rights, all of
which are issued to Verso, and (ii) no shares of the common stock of
Senercomm were held in the treasury of Senercomm.
(b) As of the date hereof, other than that certain stock
pledge in favor of PNC Bank National Association ("PNC"), dated March
14, 2000, as amended, Verso owns of record and beneficially all of the
shares of Senercomm Stock, free and clear of all liens, security
interests, rights of redemption and other encumbrances, and there are
no outstanding subscriptions, options, calls, contracts, commitments,
understandings, restrictions, arrangements, rights or warrants,
including any right of conversion or exchange under any outstanding
security, instrument or other agreement and also including any rights
plan or other anti-takeover agreement, obligating Senercomm to issue,
deliver or sell, or cause to be issued, delivered or sold, any shares
of the capital stock of Senercomm or obligating Senercomm to grant,
extend or enter into any such agreement or commitment. There are no
voting trusts, proxies or other agreements or understandings to which
Senercomm is a party or is bound with respect to the voting of any
shares of capital stock
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of Senercomm.
3.3. AUTHORITY; NON-CONTRAVENTION; APPROVALS.
(a) Verso and Senercomm have full corporate power and
authority to enter into this Agreement and to consummate the Merger.
The board of directors of Verso has (i) determined that participating
in the Merger is in Verso's best interests and (ii) approved this
Agreement and the Merger. The sole shareholder and the board of
directors of Senercomm have (i) determined that participating in the
Merger is in Senercomm's best interests and (ii) approved this
Agreement and the Merger. No other corporate proceedings on the part of
Verso or Senercomm are necessary to authorize the execution and
delivery of this Agreement or the consummation by Verso or Senercomm of
the Merger. This Agreement has been duly executed and delivered by
Verso and Senercomm and, assuming the due authorization, execution and
delivery hereof by Acquisition Corp., constitutes a valid and legally
binding agreement of Verso and Senercomm, enforceable against Verso and
Senercomm in accordance with its terms, except that such enforcement
may be subject to (x) bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting or relating to enforcement
of creditors' rights generally and (y) general equitable principles.
(b) The execution and delivery of this Agreement by Verso
and Senercomm does not violate, conflict with or result in a breach of
any provision of, or constitute a default (or an event which, with
notice or lapse of time or both, would constitute a default) under, or
result in the termination of, or accelerate the performance required
by, or result in a right of termination or acceleration under, or
result in the creation of any lien, security interest, charge or
encumbrance upon any of the properties or assets of Verso and Senercomm
under any of the terms, conditions or provisions of (i) the charter or
by-laws of Verso or Senercomm, or (ii) any statute, law, ordinance,
rule, regulation, judgment, decree, order, injunction, writ, permit or
license of any court or governmental authority applicable to Verso or
Senercomm or any of their properties or assets. The consummation by
Verso and Senercomm of the Merger will not result in any violation,
conflict, breach, termination, acceleration or creation of liens under
any of the terms, conditions or provisions described in clauses (i) or
(ii) of the preceding sentence. Excluded from the foregoing sentences
of this paragraph (b), insofar as they apply to the terms, conditions
or provisions described in clause (ii) of the first sentence of this
paragraph (b) (and whether resulting from such execution and delivery
or consummation), are such violations, conflicts, breaches, defaults,
terminations, accelerations or creations of liens, security interests,
charges or encumbrances that would not be probable of resulting in a
Senercomm Material Adverse Effect.
(c) Except for the filing of articles of merger with the
Florida Secretary of State, no declaration, filing or registration
with, or notice to, or authorization, consent or approval of, any
governmental or regulatory body or authority is necessary for the
execution and delivery of this Agreement by Verso or Senercomm or the
consummation by Verso or Senercomm of the Merger, other than such
declarations, filings, registrations, notices, authorizations, consents
or approvals which, if not made or obtained, as the case
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may be, would not be probable of resulting in a Senercomm Material
Adverse Effect.
3.4. SENERCOMM BALANCE SHEET. The attached Exhibit C sets forth the
November 30, 2000 balance sheet of Senercomm (the "SENERCOMM BALANCE SHEET"),
which was prepared by ▇▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇"), the President of Senercomm and the
sole shareholder of Acquisition Corp. Except as may be known by ▇▇▇▇▇ or ▇▇▇▇▇
▇▇▇▇▇ (collectively, the "MANAGEMENT GROUP"), to Verso's knowledge, (a)
Senercomm owns each of the assets set forth on the Senercomm Balance Sheet, and
(b) there are no liabilities that through the application of generally accepted
accounting principles should be, but are not, set forth on the Senercomm Balance
Sheet.
3.5. CONTRACTS; OTHER OBLIGATIONS AND LIABILITIES. Except as may be
known by any member of the Management Group, to Verso's knowledge, there are no
material contracts to which Senercomm is a party or by which it is bound other
than those set forth on the attached Exhibit D, which was prepared by ▇▇▇▇▇, and
Senercomm has no material obligations or liabilities other than those set forth
on the attached Exhibit C and Exhibit D.
3.6. LITIGATION. Except as may be known by any member of the
Management Group, to Verso's knowledge, other than the items set forth on the
attached Exhibit E, which was prepared by ▇▇▇▇▇, (a) there are no claims, suits,
actions, arbitrations or proceedings against, relating to or affecting Senercomm
before any court, governmental department, commission, agency, instrumentality
or authority, or any arbitrator that would be probable of resulting in a
Senercomm Material Adverse Effect, and (b) no acts, facts, circumstances, events
or conditions currently exist which are the basis for any such claim, suit,
action, arbitration or proceeding.
3.7. NO VIOLATION OF LAW. Except as set forth in Section 3.7 of the
Disclosure Schedule and except as may be known by any member of the Management
Group, to Verso's knowledge, Senercomm is not in violation of and has not been
given notice or been charged by any governmental agency with any violation of,
any United States federal or state law, statute, order, rule, regulation,
ordinance or judgment (including, without limitation, any United States labor,
human rights and occupational health and safety law, workers compensation,
employment standards or environmental law, ordinance or regulation) of any
United States federal or state governmental or regulatory body or authority,
except for violations which, in the aggregate, would not be probable of
resulting in a Senercomm Material Adverse Effect.
3.8. ENVIRONMENTAL. Except as set forth in Section 3.8 of the
Disclosure Schedule and except as may be known by any member of the Management
Group, to Verso's knowledge:
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(a) there are no inquires, litigation proceedings or
other proceedings, pending or threatened, with regard to the current or
prior conduct of Senercomm's business with respect to any law relating
to the regulation or protection of human health, safety or the
environment ("ENVIRONMENTAL LAWS") concerning air, soil or water
quality, or the emission, discharge, release or threatened release of
pollutants, contaminants, chemicals or industrial, toxic or hazardous
substances or wastes or words of similar import (collectively,
"HAZARDOUS MATERIALS") into the environment; and
(b) no oral or written notification of a release of
Hazardous Materials in connection with the operation of Senercomm's
business has been filed by or on behalf of Senercomm, and no site or
facility now or previously owned, operated or leased by Senercomm is
listed or proposed for listing on any federal, state or local list of
sites requiring investigation or clean-up.
3.9. TAXES.
(a) Except as set forth in Section 3.9 of the Disclosure
Schedule, Verso has, or will as of the Closing Date have, (i) duly
filed with the appropriate governmental authorities all Tax Returns
(defined in Section 3.9(c)) required to be filed by it for all periods
ending prior to the Effective Time, other than those Tax Returns the
failure of which to file would not result in a Senercomm Material
Adverse Effect, and such Tax Returns are true, correct and complete in
all material respects, and (ii) duly paid in full all Taxes (defined in
Section 3.9(b)) for all past and current periods up to and including
the Effective Time.
(b) For purposes of this Agreement, the term "TAXES"
shall mean taxes, imposts, rates, assessments, governmental fees,
duties, charges or levies of any nature imposed by any taxing or other
governmental agency, authority, arbitrator, bureau, board, commission,
court, department, official, tribunal or other instrumentality of the
United States, or any state, city, county municipality or other
political subdivision thereof, including, without limitation, income,
gains, capital gains, surtax, capital, franchise and capital stock
taxes, value-added taxes, taxes required to be deducted from payments
made by the payor and accounted for to any tax authority, employees'
income withholding, back-up withholding, withholding on payments to
foreign persons, social security, employment insurance, worker's
compensation, payroll, disability, real property, personal property,
sales, use, goods and services or other commodity taxes, business,
occupancy, excise, customs and import duties, transfer, stamp, and
other taxes (including interest, penalties or additions to tax in
respect of the foregoing).
(c) For purposes of this Agreement, the term "TAX RETURN"
shall mean any return, report or other document required to be supplied
to a taxing authority within the United States in connection with
Taxes, including any amendment thereto arising from any audit or
similar proceeding.
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3.10. BROKERS AND FINDERS. Neither Verso nor Senercomm has entered
into any contract, arrangement or understanding with any person or firm which
may result in the obligation of Verso or Senercomm to pay any finder's fees,
brokerage or agent commissions or other like payments in connection with the
Merger.
ARTICLE IV
CONDUCT OF BUSINESS PENDING THE MERGER
4.1. CONDUCT OF BUSINESS BY SENERCOMM PENDING THE TRANSACTION.
Except as otherwise contemplated by this Agreement or disclosed in the
Disclosure Schedule, after the date hereof and before the Effective Time or
earlier termination of this Agreement, Verso shall not take any action or fail
to take any action, nor shall Verso cause Senercomm to take any action or fail
to take any action, which could reasonably be expected to cause Senercomm to:
(a) conduct its business other than in the ordinary and
usual course of business and consistent with past practice;
(b) (i) amend or propose to amend its charter or by-laws,
(ii) split, combine or reclassify its outstanding capital stock, or
(iii) declare, set aside or pay any dividend or distribution payable in
cash, stock, property or otherwise;
(c) issue, sell, pledge or dispose of, or agree to issue,
sell, pledge or dispose of, any additional shares of, or any options,
warrants or rights of any kind to acquire any shares of its capital
stock of any class or any debt or equity securities convertible into or
exchangeable for such capital stock;
(d) (i) incur or become contingently or comparatively
liable with respect to any indebtedness for borrowed money other than
borrowings in the ordinary course of business (other than pursuant to
credit facilities) or borrowings under the existing credit facilities
of Verso and Senercomm as such facilities may be amended in a manner
that does not have a Senercomm Material Adverse Effect (the "EXISTING
CREDIT FACILITIES") as shown in Section 4.1(d) of the Disclosure
Schedule, up to the existing borrowing limit on the date hereof; (ii)
redeem, purchase, acquire or offer to purchase or acquire any shares of
its capital stock or any options, warrants or rights to acquire any of
its capital stock or any security convertible into or exchangeable for
its capital stock, (iii) make any acquisition of any assets or
businesses other than expenditures for current assets in the ordinary
course of business and expenditures for fixed or capital assets in the
ordinary course of business, (iv) sell, pledge, dispose of or encumber
any material assets other than (A) sales of assets in the ordinary
course of business, and (B) pledges or encumbrances pursuant to
Existing Credit Facilities or other permitted borrowings, or (v) enter
into any binding contract, agreement, commitment or arrangement with
respect to any of the foregoing; provided, however, that
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notwithstanding the foregoing Senercomm may sell or acquire any such
assets or business as Acquisition Corp. may in its discretion consent
to in writing;
(e) fail to use all reasonable efforts to preserve intact
its business organization and goodwill, keep available the services of
its present officers and key employees, and preserve the goodwill and
business relationships with customers and others having business
relationships with it and not engage in any action, directly or
indirectly, with the intent to adversely impact the Merger; provided,
however, that the President of Senercomm shall retain full power at his
sole discretion as to employment decisions as to key and other
employees;
(f) fail to use commercially reasonable efforts to
maintain with financially responsible insurance companies insurance on
its tangible assets and its business in such amounts and against such
risks and losses as are consistent with past practice; or
(g) fail to maintain in place for all employees of
Senercomm existing health insurance and other insurance plans.
Notwithstanding the foregoing, Acquisition Corp. acknowledges and
agrees that since November 29, 2000, Verso has caused, and after the date hereof
and before the Effective Time Verso may cause, Senercomm to be operated on a
cash-neutral basis; provided, however, that during such periods, all funds
received in Verso's lockbox related to Senercomm's operations shall be made
available for payment to or on behalf of Senercomm.
4.2. ACTIONS BY ▇▇▇▇▇. ▇▇▇▇▇ agrees that he will not knowingly take
any action, or indirectly and knowingly cause to be taken any action, which
would cause Senercomm to violate the provisions of Section 4.1.
ARTICLE V
ADDITIONAL AGREEMENTS
5.1. RETURN OF INFORMATION. If this Agreement is terminated in
accordance with its terms, Acquisition Corp. shall promptly redeliver to Verso
and Senercomm all nonpublic written material provided by Verso and Senercomm and
shall not retain any copies, extracts or other reproductions in whole or in part
of such written material. In such event, all documents, memoranda, notes and
other writings prepared by Acquisition Corp. based on the information in such
material shall be destroyed (and Acquisition Corp. shall cause its advisors and
representatives similarly to destroy their documents, memoranda and notes), and
such destruction shall be certified in writing by an authorized officer
supervising such destruction.
5.2. EXPENSES AND FEES. Expenses (as defined in this Section 5.2)
incurred in connection with this Agreement and the Merger shall be paid by the
party incurring such Expenses. For purposes of this Agreement, the term
"EXPENSES" shall mean, with respect to any party hereto, all out-of-pocket
expenses (including all fees and expenses of counsel, accountants, investment
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bankers, experts and consultants to a party hereto and its affiliates) incurred
by such party or on its behalf in connection with or related to the
authorization, preparation, negotiation, execution and performance of its
obligations pursuant to this Agreement and the consummation of the Merger.
5.3. AGREEMENT TO COOPERATE. Subject to the terms and conditions
herein provided and subject to the fiduciary duties of the boards of directors
of each of the parties, each of the parties hereto shall use all reasonable
efforts to take, or cause to be taken, all action and to do, or cause to be
done, all things necessary, proper or advisable under applicable laws and
regulations to consummate and make effective the Merger, including using its
reasonable efforts to obtain all necessary or appropriate waivers, consents and
approvals to effect all necessary registrations, filings and submissions and to
lift any injunction or other legal bar to the Merger (and, in such case, to
proceed with the Merger as expeditiously as possible).
5.4. PUBLIC STATEMENTS. The parties shall consult with each other
before issuing any press release or any written or oral public statement with
respect to this Agreement or the Merger contemplated hereby and shall not issue
any such press release or written or oral public statement without the prior
written consent of the other party, which consent shall not be unreasonably
withheld.
5.5. NOTIFICATION OF CERTAIN MATTERS. Each of Acquisition Corp.,
Verso and Senercomm agrees to give prompt notice to each other of, and to use
commercially reasonable efforts to remedy, (i) the occurrence or failure to
occur of any event which occurrence or failure to occur would be likely to cause
any of its representations or warranties in this Agreement to be untrue or
inaccurate in any material respect at the Closing Date and (ii) any material
failure on its part to comply with or satisfy any covenant, condition or
agreement to be complied with or satisfied by it hereunder; provided, however,
that the delivery of any notice pursuant to this Section 5.5 shall not limit or
otherwise affect the remedies available hereunder to the party receiving such
notice.
5.6. DIRECTORS' AND OFFICERS' INDEMNIFICATION. The indemnification
provisions of the charter and by-laws of Senercomm as in effect at the date
hereof shall not be amended, repealed or otherwise modified for a period of six
years from the Effective Time in any manner that would adversely affect the
rights thereunder of individuals who at the Effective Time were directors,
officers, employees or agents of Senercomm. Verso and the members of the
Management Group know of no event that would require such indemnification.
5.7. EMPLOYMENT AND CONSULTING AGREEMENTS. From and after the
Effective Time, the Surviving Corporation shall honor in accordance with their
terms, employment, severance, and other compensation contracts between Senercomm
and current or former directors, officers or employees thereof, as shown in
Section 5.7 of the Disclosure Schedule.
5.8. TAXES.
(a) Verso will include the income of Senercomm on Verso's
consolidated
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federal income tax return and corresponding state tax returns for all
periods through the Effective Time and pay any federal and state income
taxes attributable to such income. The Surviving Corporation will
furnish tax information to Verso for inclusion in Verso's federal
consolidated income tax return for the period which includes the
Effective Time in accordance with Senercomm's past custom and practice.
Verso will take no position on such returns that would adversely affect
the Surviving Corporation after the Effective Time, unless such
position would be reasonable in the case of a person that owned
Senercomm both before and after the Effective Time. The income of
Senercomm will be apportioned to the period up to and including the
Closing Date and the period after the Closing Date by closing the books
of Senercomm as of the end of the Closing Date.
(b) At Verso's request, Acquisition Corp. will make or
join with Verso in making any election with respect to federal or state
taxes.
(c) Verso will allow Surviving Corporation and its
counsel to participate at its own expense in any audits of Verso's
consolidated federal income tax returns to the extent that such returns
relate to Senercomm. Verso will not settle any such audit in a manner
which would adversely affect the Surviving Corporation after the
Effective Time without the prior written consent of the Surviving
Corporation, which consent shall not unreasonably be withheld.
(d) The Surviving Corporation and Verso shall each be
responsible for paying 50% of all taxes payable with respect to the New
York state tax audit disclosed in Section 3.9 of the Disclosure
Schedule; provided, however, that Verso's liability with respect to
such taxes shall be limited to $25,000 and the Surviving Corporation
shall be responsible for any amount greater than such amount for which
Verso would otherwise be responsible.
5.9. POST-CLOSING COOPERATION.
(a) The Surviving Corporation and Verso will cooperate
fully with each other in connection with (i) the preparation and filing
of any federal, state or local tax returns of Verso and Senercomm for
taxable periods ending on or before the Effective Time; (ii) any
financial or tax audit; (iii) any proceeding relating to any federal,
state or local tax matters concerning Verso (if such matters relate to
Senercomm) and Senercomm; and (iv) any litigation, proceeding,
investigation or regulatory or governmental matter or proceeding
concerning Verso (if such matters relate to Senercomm) or Senercomm.
Such cooperation will include, without limitation, the furnishing or
making available of such of the party's records as may be necessary or
helpful in connection therewith. The party seeking assistance shall
reimburse the part providing assistance for any reasonable expenses
incurred by the latter in connection with the matters provided for in
this Section 5.9.
(b) On and after the Closing Date, Verso shall, and shall
cause its subsidiaries and affiliates to, prepare, execute and deliver
such further instruments of conveyance, sale, assignment or transfer,
as the Surviving Corporation shall reasonably request in order to
transfer, assign or maintain any contract, license, permit or other
item or matter owned or
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used by Senercomm before the Closing Date which is essential to the
Surviving Corporation's business.
5.10. INSURANCE PLANS. Before the Closing Date, Verso and Senercomm
will cooperate fully with Acquisition Corp. in connection with establishing
health insurance and other insurance plans to cover the Surviving Corporation's
employees after the Closing.
ARTICLE VI
CONDITIONS
6.1. CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE
TRANSACTION. The respective obligations of each party to effect the Merger shall
be subject to the fulfillment at or before the Closing Date of the following
conditions:
(a) this Agreement and the transactions contemplated
hereby shall have been approved and adopted by the requisite vote of
the stockholders of Acquisition Corp. and Senercomm under applicable
law;
(b) no preliminary or permanent injunction or other order
or decree by any federal or state court which prevents the consummation
of the Merger shall have been issued and remain in effect (each party
agreeing to use its best efforts to have any such injunction, order or
decree lifted);
(c) no statute, rule or regulation shall have been
enacted by any state or federal government or governmental agency which
would prevent the consummation of the Merger or make the Merger
illegal;
(d) all governmental waivers, consents, orders and
approvals legally required for the consummation of the Merger
contemplated hereby shall have been obtained and be in effect at the
Closing Date, except where the failure to obtain the same would not be
reasonably likely, individually or in the aggregate, to result in a
Senercomm Material Adverse Effect following the Closing Date; and
(e) all intercompany debt and obligations between
Senercomm and Verso and between Senercomm and any of Verso's affiliates
shall have been cancelled; provided, however, that this Section 6.1(e)
shall have no effect on the trade payable obligations of AremisSoft
Corporation or its affiliates ("AremisSoft") to Senercomm that were
assumed by AremisSoft when it acquired certain non-U.S. subsidiaries of
Verso.
6.2. CONDITION TO VERSO'S AND SENERCOMM'S OBLIGATIONS. Unless
waived by Verso and Senercomm, the obligation of Verso and Senercomm to effect
the Merger shall be subject to the fulfillment at or before the Closing Date of
the conditions that:
(a) Acquisition Corp. shall have performed in all
material respects its
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agreements contained in this Agreement required to be performed on or
before the Closing Date and the representations and warranties of
Acquisition Corp. contained in this Agreement shall be true and correct
on and as of the Closing Date as if made at and as of such date except
to the extent that such representations and warranties speak of an
earlier date (in which case, on and as of such date), and Verso shall
have received a certificate (the "ACQUISITION CORP. CERTIFICATE") of
the President of Acquisition Corp. to that effect;
(b) at the Closing, ▇▇▇▇▇ shall have executed and
delivered to Verso a Guaranty in the form of the attached Exhibit F;
and
(c) at the Closing, Verso shall have executed and
delivered to Verso a Stock Pledge Agreement in the form of the attached
Exhibit G.
6.3. CONDITIONS TO ACQUISITION CORP.'S OBLIGATIONS. Unless waived
by Acquisition Corp., the obligations of Acquisition Corp. to effect the Merger
shall be subject to the fulfillment at or before the Closing Date of the
conditions that:
(a) Verso and Senercomm shall have performed in all
material respects their agreements contained in this Agreement required
to be performed on or before the Closing Date and the representations
and warranties of Verso and Senercomm contained in this Agreement shall
be true and correct on and as of the Closing Date as if made at and as
of such date except to the extent that such representations and
warranties speak of an earlier date (in which case, on and as of such
date) except for such failures to perform or to be true and correct
that would not reasonably be expected to result in a Senercomm Material
Adverse Effect, and Acquisition Corp. shall have received a certificate
(the "VERSO CERTIFICATE") of the Chairman of the Board or Chief
Financial Officer of Verso to that effect;
(b) the liens of PNC upon the assets of Senercomm and the
Senercomm Stock shall have been removed;
(c) at the Closing, Verso shall have executed and
delivered to the Surviving Corporation on behalf of itself, its
subsidiaries and its affiliates, a certificate of cancellation of all
intercompany debt, provided however, the certificate shall specifically
exclude the trade payable obligations of AremisSoft Corporation or its
affiliates ("AremisSoft") to Senercomm that were assumed by AremisSoft
when it acquired certain non-U.S. subsidiaries of Verso; and
(d) at the Closing, Verso shall have executed and
delivered to the Surviving Corporation a Covenant Not to Compete in the
form of the attached Exhibit H;
(e) except as is contemplated in the last paragraph of
Section 4.1, there shall have been no change in the business, assets or
liabilities of Senercomm, or any affairs, prospects or other matters
concerning Senercomm resulting in a Senercomm Material Adverse Effect;
and
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(f) Acquisition Corp. shall have completed its due
diligence of Senercomm's corporate minute books and records and tax
returns as it deems reasonably necessary.
ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER
7.1. TERMINATION. This Agreement may be terminated at any time
before the Closing Date by the mutual written consent of the parties or as
follows:
(a) Verso and Senercomm may terminate this Agreement:
(i) if the Merger is not completed by January
10, 2001 (the "TERMINATION DATE") (unless
due to a delay or default on the part of
Verso or Senercomm);
(ii) upon a material breach of a representation
or warranty of Acquisition Corp. contained
in this Agreement which has not been cured
in all material respects by the Termination
Date; or
(iii) if Acquisition Corp. (A) fails to perform in
any material respect any of its material
covenants contained in Articles I or V of
this Agreement and (B) does not cure such
default in all material respects by the
Termination Date.
(b) Acquisition Corp. may terminate this Agreement:
(i) if the Merger is not completed by the
Termination Date (unless due to a delay or
default on the part of Acquisition Corp.);
(ii) upon a material breach of a representation
or warranty of Verso and Senercomm contained
in this Agreement, which has not been cured
in all material respects by the Termination
Date; or
(iii) if Verso and Senercomm (A) fail to perform
in any material respect any of their
material covenants contained in Articles I,
IV or V of this Agreement and (B) do not
cure such default in all material respects
by the Termination Date.
7.2. EFFECT OF TERMINATION. If this Agreement is terminated by
Acquisition Corp., Verso or Senercomm pursuant to the provisions of Section 7.1,
this Agreement shall forthwith become void and there shall be no liability or
further obligation on the part of the parties and their respective officers or
directors (except this Section 7.2 which shall survive the termination). Nothing
in this Section 7.2 shall relieve any party from liability for any willful and
intentional breach of any covenant or agreement of such party contained in this
Agreement. The parties agree that, before Closing, the sole and exclusive remedy
with respect to a breach by the
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other party of a representation or warranty contained herein shall be the right
to terminate this Agreement in accordance with and subject to the provisions of
this Article VII; provided, however, that a termination of this Agreement shall
not relieve any party from any liability for damages incurred as a result of a
breach by such party of its covenants hereunder occurring before such
termination. The parties agree never to institute, directly or indirectly, any
action or proceeding of any kind against the other party based on or arising out
of, or in any manner related to, the breach of a representation or warranty
contained herein if this Agreement is terminated pursuant to Section 7.1.
7.3. AMENDMENT. This Agreement may not be amended except, in the
case of Verso or Senercomm, by action taken by its board of directors or a duly
authorized committee thereof and in the case of Acquisition Corp. by action
taken by its board of directors or a duly authorized committee thereof. This
Agreement may only be amended by an instrument in writing signed on behalf of
each of the parties hereto and in compliance with applicable law. Such amendment
may take place at any time before the Closing Date.
7.4. WAIVER. At any time before the Closing Date, the parties
hereto may (a) extend the time for the performance of any of the obligations or
other acts of the other parties hereto, (b) waive any inaccuracies in the
representations and warranties contained herein or in any document delivered
pursuant thereto and (c) waive compliance with any of the agreements or
conditions contained herein. Any agreement on the part of a party hereto to any
such extension or waiver shall be valid only if set forth in an instrument in
writing signed on behalf of such party.
ARTICLE VIII
NATURE AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES
8.1. Survival of Representations and Warranties. The
representations and warranties contained in Sections 2.1, 2.2, 3.1, 3.2 and 3.3
shall survive the Closing and shall continue in effect until the expiration of
the applicable statute of limitation. All other representations and warranties
shall expire on the third anniversary of the Closing Date. The foregoing
limitations on the survival of the representations and warranties of Acquisition
Corp., Verso and Senercomm shall not apply to any representations or warranties
actually known by Acquisition Corp. or Verso and Senercomm when made to be false
in any material respect. All covenants of the parties described in Article V
shall survive the Closing Date indefinitely.
8.2. RELIANCE. If either Acquisition Corp., Verso or Senercomm
acquires knowledge at any time before the Closing that any representation or
warranty made by another party is untrue or incorrect, and further, if the party
acquiring the knowledge does not notify the other party of such matter in a
timely manner before the Closing so as to afford the other party an opportunity
to correct such matter, then the party not so notified may reduce its obligation
to indemnify the party which acquired the knowledge for the damages it sustains
directly or proximately as a result of the matter which makes the representation
or warranty in question untrue or incorrect by an amount equal to the amount by
which the party not so notified could have avoided or mitigated such
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damages if they had been timely notified by the party acquiring the knowledge.
8.3. Nature of Statements. As used in this Agreement, "knowledge",
"known," or words of similar import mean (a) as they relate to Verso, the actual
knowledge of ▇▇▇▇▇▇ ▇. ▇▇▇▇ or ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, or the existence of any facts
which ▇▇▇▇▇▇ ▇. ▇▇▇▇ or ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ reasonably should be expected to know
after reasonable diligent inquiry and investigation, including, without
limitation, inquiry of officers and management-level employees of Senercomm, or
as officers or directors of Verso, and (b) as they relate to the Management
Group, actual knowledge of any member of the Management Group or the existence
of any facts which any of such members reasonably should be expected to know,
after reasonable diligent inquiry and investigation, including, without
limitation, inquiry of officers and management-level employees of Senercomm. As
used in this Agreement, "probable" means that the likelihood of an opposite
outcome appears at the time of determination to be remote.
ARTICLE IX
INDEMNIFICATION
9.1 INDEMNIFICATION BY VERSO. Verso shall indemnify and hold
harmless the Surviving Corporation and its affiliates, successors and assigns
from and against any and all damages, penalties, costs and expenses suffered by
the Surviving Corporation ("SURVIVING CORPORATION INDEMNIFIABLE DAMAGES") that
are caused by, arise out of or are in respect of (i) any material breach or
default in the performance by Verso or Senercomm of any covenant or agreement
made in this Agreement, (ii) any material breach of any warranty or inaccurate
or erroneous representation made by Verso or Senercomm in this Agreement, the
Disclosure Schedule or the Verso Certificate (collectively, "SURVIVING
CORPORATION INDEMNIFIABLE CLAIMS"). If the Surviving Corporation becomes aware
of a matter for which it may seek indemnification hereunder, it shall promptly
notify Verso and afford Verso a reasonable opportunity, if Verso so chooses, to
make appropriate arrangements, at Verso's expense and under Verso's direction,
to rectify the problem which has led to the breach. Except for actions for
injunctive or equitable relief in which no money damages are sought, the
indemnification obligation contained in this Section 9.1 shall be the Surviving
Corporation's sole and exclusive remedy against Verso for any Surviving
Corporation Indemnifiable Claims.
9.2 INDEMNIFICATION BY THE SURVIVING CORPORATION. The Surviving
Corporation shall indemnify and hold harmless Verso and its affiliates,
successors and assigns from and against any and all damages, penalties, costs
and expenses suffered by Verso ("VERSO INDEMNIFIABLE DAMAGES") which are caused
by, arise out of or are in respect of (i) any material breach or default in the
performance by Acquisition Corp. of any covenant or agreement made by
Acquisition Corp. in this Agreement or in any ancillary agreement; (ii) any
material breach of any warranty or inaccurate or erroneous representation made
by Acquisition Corp. in this Agreement or the Acquisition Corp. Certificate; and
(iii) any third party liability arising from the operations of Senercomm after
the Closing Date (collectively, "VERSO INDEMNIFIABLE CLAIMS"). If Verso becomes
aware of a matter for which it may seek indemnification hereunder, it shall
promptly
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notify the Surviving Corporation and afford the Surviving Corporation a
reasonable opportunity, if the Surviving Corporation so chooses, to make
appropriate arrangements, at the Surviving Corporation's expense and under the
Surviving Corporation's direction, to rectify the problem which has led to the
breach. Except for actions for injunctive or equitable relief in which no money
damages are sought, the indemnification obligation contained in this Section 9.2
shall be Verso's sole and exclusive remedy against the Surviving Corporation for
any Verso Indemnifiable Claims.
9.3 THIRD PARTY CLAIMS.
(a) If any party (a "THIRD-PARTY INDEMNIFIED PARTY")
becomes aware of a fact, circumstance, claim, situation, demand or
other matter which could result in a liability owed by the Third-Party
Indemnified Party to a third party or a claim otherwise advanced by a
third party against the Third-Party Indemnified Party (any such item
being herein called a "THIRD PARTY CLAIM"), the Third-Party Indemnified
Party, shall give prompt written notice of the Third Party Claim to the
party obligated to provide indemnity with respect to such Third Party
Claim (the "THIRD-PARTY INDEMNIFYING PARTY"), requesting
indemnification therefor, specifying the nature of and specific basis
for the Third Party Claim and the amount or estimated amount thereof to
the extent then feasible; provided, however, a failure to give such
notice will not waive any rights of the Third-Party Indemnified Party
except to the extent the rights of the Third-Party Indemnifying Party
are actually prejudiced by such failure. The Third-Party Indemnifying
Party shall have the right to assume the defense or investigation of
such Third Party Claim and to retain counsel and other experts to
represent the Third-Party Indemnified Party and shall pay the fees and
disbursements of such counsel and other experts. If within 30 days
after receipt of the request the Third-Party Indemnifying Party fails
to give notice to the Third-Party Indemnified Party that the
Third-Party Indemnifying Party assumes the defense or investigation of
the Third Party Claim, the Third-Party Indemnified Party may retain
counsel and other experts (whose fees and disbursements shall be at the
expense of the Third-Party Indemnifying Party) to file any motion,
answer or other pleading and take such other action which the
Third-Party Indemnified Party reasonably deems necessary to protect its
interests or those of the Third-Party Indemnifying Party until the date
on which the Third-Party Indemnified Party receives such notice from
the Third-Party Indemnifying Party. If the Third-Party Indemnifying
Party assumes the defense or investigation and retains such counsel and
other experts, the Third-Party Indemnified Party shall have the right
to retain its own counsel and other experts, but the fees and expenses
of such counsel and other experts shall be at the expense of the
Third-Party Indemnified Party unless (i) the Third-Party Indemnifying
Party and the Third-Party Indemnified Party mutually agree to the
retention of such counsel and other experts or (ii) the named parties
to any such proceeding (including any impleaded parties) include both
the Third-Party Indemnifying Party and the Third-Party Indemnified
Party and representation of both parties by the same counsel would, in
the opinion of counsel retained by the Third-Party Indemnifying Party,
be inappropriate due to actual or potential differing interests between
them.
(b) If requested by the Third-Party Indemnifying Party,
the Third-Party
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Indemnified Party agrees to cooperate with the Third-Party Indemnifying
Party and its counsel in contesting any Third Party Claim which the
Third-Party Indemnifying Party defends, or, if appropriate and related
to the Third Party Claim in question, in making any counterclaim
against the person asserting the Third Party Claim, or any
cross-complaint against any person. No Third Party Claim may be settled
by the Third-Party Indemnified Party without the consent of the
Third-Party Indemnifying Party, which consent will not be unreasonably
withheld. Unless the Third-Party Indemnifying Party agrees in writing
that the damages to the Third-Party Indemnified Party resulting from
such settlement are fully covered by the indemnities provided herein
and that such damages are fully compensable in money, no Third Party
Claim may be settled without the consent of the Third-Party Indemnified
Party, which consent will not be unreasonably withheld. Except with
respect to settlements entered without the Third-Party Indemnified
Party's consent pursuant to the immediately preceding sentence, to the
extent it is determined that the Third-Party Indemnified Party has no
right under this Article IX to be indemnified by the Third-Party
Indemnifying Party, the Third-Party Indemnified Party shall promptly
pay to the Third-Party Indemnifying Party any amounts previously paid
or advanced by the Third-Party Indemnifying Party with respect to such
matters pursuant to this Article IX.
(c) After the delivery of a notice of a Third Party Claim
hereunder, at the reasonable request of the Third-Party Indemnifying
Party the Third-Party Indemnified Party shall grant the Third-Party
Indemnifying Party and its representatives full and complete access to
the books, records and properties of the Third-Party Indemnified Party
to the extent reasonably related to the matters to which the notice
relates. The Third-Party Indemnifying Party will not disclose to any
third person (except its representatives) any information obtained
pursuant to the preceding sentence which is designated as confidential
by the Third-Party Indemnified Party and which is not otherwise
generally available to the public, except as may be required by
applicable law. The Third-Party Indemnifying Party shall request its
representatives not to disclose any such information (except as it may
be required by applicable law). All such access shall be subject to the
normal safety regulations of the Third-Party Indemnified Party, and
shall be granted under conditions which will not unreasonably interfere
with the business and operations of the Third-Party Indemnified Party.
9.4 CLAIMS BETWEEN THE PARTIES. If any party (an "INTER-PARTY
INDEMNIFIED PARTY") becomes aware of a fact, circumstance, claim, situation,
demand or other matter (other than a Third Party Claim) for which it or any
other Inter-Party Indemnified Party has been or could be indemnified under this
Article IX and which has resulted or could result in a liability (any such items
being herein called an "INTER-PARTY CLAIM") being owed to the Inter-Party
Indemnified Party by another party (the "INTER-PARTY INDEMNIFYING PARTY"), the
Inter-Party Indemnified Party shall give prompt written notice to the
Inter-Party Indemnifying Party of the Inter-Party Claim, stating the nature and
basis of the Inter-Party Claim and the amount claimed thereunder, together with
supporting information to the Inter-Party Claim, if any. If the Inter-Party
Indemnifying Party does not notify the Inter-Party Indemnified Party within 30
days from the date such Inter-Party Claim notice is given that it disputes the
Inter-Party Claim, the amount of the Inter-Party Claim shall
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conclusively be deemed to be a liability of the Inter-Party Indemnifying Party
hereunder. If the Inter-Party Indemnifying Party provides written notice to the
Inter-Party Indemnified Party within such 30 day period that it contests such
indemnity, the parties shall attempt in good faith to resolve the dispute with
regard thereto within 30 days of delivery of the Inter-Party Indemnifying
Party's notice. If the parties cannot reach agreement within such 30 day period,
the matter shall be resolved pursuant to and in accordance with Section 10.3
hereof.
ARTICLE X
GENERAL PROVISIONS
10.1 NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed given if delivered personally, mailed by
registered or certified mail (return receipt requested), dispatched via courier
such as Federal Express or the like, or sent via facsimile to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
(a) If to Acquisition Corp., or to the Surviving
Corporation after the Effective Time, to:
SS & Co., Inc.
Attn: ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax no.: ▇▇▇-▇▇▇-▇▇▇▇
with a required copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
11211 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇-▇▇▇
Palm Beach Gardens, FL 33410
Fax no.: ▇▇▇-▇▇▇-▇▇▇▇
(b) If to Verso, or to Senercomm before the Effective
Time, to:
Verso Technologies, Inc.
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chief Financial Officer
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax no.: ▇▇▇-▇▇▇-▇▇▇▇
with a required copy to:
Jaffe, Raitt, Heuer & ▇▇▇▇▇, Professional Corporation
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
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▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
10.2 INTERPRETATION. 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. In this Agreement, unless a contrary intention
appears, (i) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision and (ii) reference to any Article or
Section means such Article or Section hereof. No provision of this Agreement
shall be interpreted or construed against any party hereto solely because such
party or its legal representative drafted such provision.
10.3 MISCELLANEOUS. This Agreement (including the documents and
instruments referred to herein) (a) constitutes the entire agreement and
supersedes all other prior agreements and understandings, both written and oral,
among the parties, or any of them, with respect to the subject matter hereof,
and (b) shall not be assigned by operation of law or otherwise. THIS AGREEMENT
SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING VALIDITY, INTERPRETATION AND
EFFECT, BY THE LAWS OF THE STATE OF FLORIDA. THE EXCLUSIVE VENUE FOR THE
ADJUDICATION OF ANY DISPUTE OR PROCEEDING ARISING OUT OF THIS AGREEMENT OR THE
PERFORMANCE THEREOF SHALL BE LOCATED IN PALM BEACH COUNTY, FLORIDA, AND THE
PARTIES HERETO AND THEIR AFFILIATES EACH CONSENT TO AND HEREBY SUBMIT TO
ADJUDICATION IN PALM BEACH COUNTY, FLORIDA.
10.4 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
10.5 PARTIES IN INTEREST. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto, and except as set forth in
Sections 5.6 and 5.7 (which are intended to and shall create third party
beneficiary rights if the Merger is consummated), nothing in this Agreement,
express or implied, is intended to confer upon any other person any rights or
remedies of any nature whatsoever under or by reason of this Agreement. The
rights of any third party beneficiary hereunder are not subject to any defense,
offset or counterclaim.
(Intentionally Left Blank)
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IN WITNESS WHEREOF, the parties have caused this Agreement to be signed
and attested to as of the date first written above.
ACQUISITION CORP.:
SS & CO., INC.,
a Florida corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Its: Chairman
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SENERCOMM:
SENERCOMM, INC.,
a Florida corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Its: President
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VERSO:
VERSO TECHNOLOGIES, INC.,
a Minnesota corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Its: Executive Vice President and CFO
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▇▇▇▇▇, WITH RESPECT TO SECTION 4.2 ONLY:
/s/ ▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇
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