ASSET PURCHASE AGREEMENT
BY AND AMONG
ROCKY MOUNTAIN INTERNET, INC.
AND
IMAGEWARE TECHNOLOGIES, L.L.C.
AND
COMMUNICATION NETWORK SERVICES, L.L.C.
FEBRUARY 5, 1999
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TABLE OF CONTENTS
1. Definitions
2. Basic Transaction
(a) Purchase and Sale of Assets
(b) Assumption of Liabilities
(c) Purchase Price
(d) The Closing
(e) Deliveries at the Closing
(f) Allocation
3. Representations and Warranties of the Seller and the Seller Management
Members
(a) Organization of the Seller
(b) Authorization of Transaction
(c) Noncontravention
(d) Brokers' Fees
(e) Title to Assets
(f) Financial Statements
(g) Events Subsequent to Most Recent Fiscal Year End
(h) Undisclosed Liabilities
(i) Legal Compliance
(j) Tax Matters
(k) Real Property Lease
(l) Intellectual Property
(m) Tangible Assets
(n) Contracts
(o) Notes and Accounts Receivable
(p) Powers of Attorney
(q) Insurance
(r) Litigation
(s) Warranties
(t) Employees
(u) Employee Benefits
(v) Guaranties
(w) Environmental, Health, and Safety Matters
(x) Certain Business Relationships with the Seller
(y) Investment
(z) No Predecessors or Subsidiaries
(aa) State PUC Authorizations and FCC Authorizations
(bb) Disclosure
4. Representations and Warranties of the Buyer
(a) Organization of the Buyer
(b) Authorization of Transaction
(c) Noncontravention
(d) Brokers' Fees
(e) Complete Investigation
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(f) Issuance of Buyer's Shares
(g) Seller's Employees
(h) Authorizations
(i) SEC Filings
(j) Absence of Certain Changes
(k) Disclosure
5. Pre-Closing Covenants
(a) General
(b) Notices and Consents
(c) Operation of Business
(d) Preservation of Business
(e) Full Access
(f) Notice of Developments
(g) Exclusivity
6. Conditions to Obligation to Close
(a) Conditions to Obligation of the Buyer
(b) Conditions to Obligation of the Seller
7. Termination
(a) Termination of Agreement
(b) Effect of Termination
8. Post Closing Covenants
(a) General
(b) Litigation Support
(c) Transition
(d) Confidentiality
(e) Covenant Not to Compete
(f) Non-Solicitation
(g) Survival of Representations and Warranties
(h) Indemnification Provisions for Benefit of the Buyer
(i) Indemnification Provisions for Benefit of the Seller and the Seller
Management Members
(j) Matters Involving Third Parties
(k) Other Indemnification Provisions
(l) Third Party Consents
9. Additional Agreements
10. Miscellaneous
(a) Press Releases and Public Announcements
(b) No Third-Party Beneficiaries
(c) Entire Agreement
(d) Succession and Assignment
(e) Counterparts
(f) Headings
(g) Notices
(h) Seller Members' Representative
(i) Governing Law
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(j) Arbitration
(k) Amendments and Waivers
(l) Severability
(m) Expenses
(n) Construction
(o) Incorporation of Exhibits and Schedules
(p) Specific Performance
Exhibit A--Escrow Agreement
Exhibit B--Lock Up Agreement
Exhibit C--Assignment and Assumption Agreement
Exhibit D--▇▇▇▇ of Sale
Exhibit E--Allocation Schedule
Exhibit F--Financial Statements
Exhibit G--Form of Opinion of Counsel to the Seller
Exhibit H--Form of Opinion of Counsel to the Buyer
Disclosure Schedule--Exceptions to Representations and Warranties
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ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement entered into as of this 5th day of
February, 1999, by and among Rocky Mountain Internet, Inc., a Delaware
corporation (the "Buyer"), and ImageWare Technologies, L.L.C., an Alabama
limited liability company ("ImageWare"), and Communication Network Services,
L.L.C., an Alabama limited liability company ("CNS") (ImageWare and CNS being
referred to collectively herein as the "Seller"). The Buyer and the Seller
are referred to collectively herein as the "Parties".
This Agreement contemplates a transaction in which the Buyer will
purchase all of the assets (and assume certain of the liabilities) of the
Seller in return for shares of the Buyer's $0.001 par value common stock (the
"Buyer Shares").
Now, therefore, in consideration of the premises and the mutual promises
herein made, and in consideration of the representations, warranties, and
covenants herein contained, the Parties agree as follows.
1. DEFINITIONS.
"ACCREDITED INVESTOR" has the meaning set forth in Regulation D
promulgated under the Securities Act.
"ACQUIRED ASSETS" means all right, title, and interest in and to all of
the assets of the Seller, INCLUDING all of its (a) tangible personal property
(such as machinery, equipment, inventories of raw materials and supplies,
parts, goods, furniture, vehicles, etc.), (b) Intellectual Property, goodwill
associated therewith, licenses and sublicenses granted and obtained with
respect thereto, and rights thereunder, remedies against infringements
thereof, and rights to protection of interests therein under the laws of all
jurisdictions, (c) leases, subleases, and rights thereunder, (d) agreements,
contracts, indentures, mortgages, instruments, Security Interests,
guaranties, other similar arrangements, and rights thereunder, (e) accounts,
notes, and other receivables, (f) securities, (g) claims, deposits,
prepayments, refunds, causes of action, choses in action, rights of recovery,
rights of set off, and rights of recoupment (including any such item relating
to the payment of Taxes), (h) franchises, approvals, permits, licenses,
orders, registrations, certificates, variances, and similar rights obtained
from governments and governmental agencies, (i) State PUC Authorizations, FCC
Authorizations, and any other governmental approvals, permits, licenses,
registrations, certificates and similar authorizations relating to the
Seller's provision of long distance telephone service, (j) books, records,
ledgers, files, documents, correspondence, lists, plats, architectural plans,
drawings, and specifications, creative materials, advertising and promotional
materials, studies, reports, and other printed or written materials, and (k)
Cash; PROVIDED, HOWEVER, that the Acquired Assets shall not include (i) the
articles of organization, operating agreement, qualifications to conduct
business as a foreign limited liability company, arrangements with registered
agents relating to foreign qualifications, taxpayer and other identification
numbers, seals, minute books, membership interest transfer books, blank
certificates representing membership interests, and other documents relating
to the organization, maintenance, and existence of the Seller as a limited
liability company or (ii)
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any of the rights of the Seller under this Agreement.
"ADVERSE CONSEQUENCES" means all actions, suits, proceedings, hearings,
investigations, charges, complaints, claims, demands, injunctions, judgments,
orders, decrees, rulings, damages, dues, penalties, fines, costs, amounts
paid in settlement, liabilities, obligations, taxes, liens, losses, expenses
and fees, including court costs, reasonable attorney's fees, and expenses.
"AFFILIATE" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Securities Exchange Act.
"AFFILIATED GROUP" means any affiliated group within the meaning of Code
Section 1504(a) or any similar group defined under a similar provision of
state, local, or foreign law.
"ASSUMED LIABILITIES" means (a) all Liabilities of the Seller set forth
on the face of the Most Recent Financial Statements (rather than in any notes
thereto), (b) all Liabilities of the Seller which have arisen after the Most
Recent Fiscal Month End in the Ordinary Course of Business (other than any
Liability resulting from, arising out of, relating to, in the nature of, or
caused by any breach of contract, breach of warranty, tort, infringement,
violation of law, or environmental matter, including without limitation those
arising under Environmental, Health, and Safety Requirements), (c) all
obligations of the Seller under the agreements, contracts, leases, licenses,
and other arrangements referred to in the definition of Acquired Assets
either (i) to furnish goods, services, and other non-Cash benefits to another
party after the Closing or (ii) to pay for goods, services, and other
non-Cash benefits that another party will furnish to it after the Closing,
(d) all obligations of ImageWare under that certain Promissory Note, in the
principal amount of $1,000,000, dated March 31, 1997, executed by ImageWare
and payable to the order of Industrial Development Authority (the "▇▇▇
Note"), and (e) all other Liabilities and obligations of the Seller set forth
in an appendix to the Disclosure Schedule under an express statement (that
the Buyer has initialed) to the effect that the definition of Assumed
Liabilities will include the Liabilities and obligations so disclosed;
PROVIDED, HOWEVER, that the Assumed Liabilities shall not include (i) any
Liability of the Seller for Taxes, (ii) any Liability of the Seller for the
unpaid Taxes of any Person (other than of the Seller) under Reg. Section
1.1502-6 (or any similar provision of state, local, or foreign law), as a
transferee or successor, by contract, or otherwise, (iii) any obligation of
the Seller to indemnify any Person (including any of the Seller's Members) by
reason of the fact that such Person was a manager, officer, employee, or
agent of the Seller or was serving at the request of any such entity as a
partner, trustee, director, officer, employee, or agent of another entity
(whether such indemnification is for judgments, damages, penalties, fines,
costs, amounts paid in settlement, losses, expenses, or otherwise and whether
such indemnification is pursuant to any statute, articles of association,
operating agreement, agreement, or otherwise), (iv) any Liability of the
Seller for costs and expenses incurred in connection with this Agreement and
the transactions contemplated hereby, or (v) any Liability or obligation of
the Seller under this Agreement.
"AUDITED FINANCIAL STATEMENTS" has the meaning set forth in Section 3(f)
below.
"BASIS" means any past or present fact, situation, circumstance, status,
condition, activity, practice, plan, occurrence, event, incident, action,
failure to act, or transaction that forms or could
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form the basis for any specified consequence.
"BUYER" has the meaning set forth in the preface above.
"BUYER SHARES" has the meaning set forth in the preface above..
"CASH" means cash and cash equivalents (including marketable securities and
short term investments) calculated in accordance with GAAP applied on a basis
consistent with the preparation of the Financial Statements.
"CLOSING" has the meaning set forth in Section 2(d) below.
"CLOSING DATE" has the meaning set forth in Section 2(d) below.
"CODE" means the Internal Revenue Code of 1986, as amended.
"CONTROLLED GROUP" has the meaning set forth in Code Section 1563.
"DEFERRED INTERCOMPANY TRANSACTION" has the meaning set forth in Reg.
Section 1.1502-13.
"DISCLOSURE SCHEDULE" has the meaning set forth in Section 3 below.
"EMPLOYEE BENEFIT PLAN" means any (a) nonqualified deferred compensation or
retirement plan or arrangement, (b) qualified defined contribution retirement
plan or arrangement which is an Employee Pension Benefit Plan, (c) qualified
defined benefit retirement plan or arrangement which is an Employee Pension
Benefit Plan (including any Multiemployer Plan), or (d) Employee Welfare Benefit
Plan or material fringe benefit or other retirement, bonus, or incentive plan or
program.
"EMPLOYEE PENSION BENEFIT PLAN" has the meaning set forth in ERISA Section
3(2).
"EMPLOYEE WELFARE BENEFIT PLAN" has the meaning set forth in ERISA Section
3(1).
"ENVIRONMENTAL, HEALTH, AND SAFETY REQUIREMENTS" shall mean all federal,
state, local and foreign statutes, regulations, ordinances and other provisions
having the force or effect of law, all judicial and administrative orders and
determinations, all contractual obligations and all common law concerning public
health and safety, worker health and safety, and pollution or protection of the
environment, including without limitation all those relating to the presence,
use, production, generation, handling, transportation, treatment, storage,
disposal, distribution, labeling, testing, processing, discharge, release,
threatened release, control, or cleanup of any hazardous materials, substances
or wastes, chemical substances or mixtures, pesticides, pollutants,
contaminants, toxic chemicals, petroleum products or byproducts, asbestos,
polychlorinated biphenyls, noise or radiation, each as amended and as now or
hereafter in effect.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
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"ESCROW AGENT" has the meaning set forth in Section 2(c)(ii) below.
"ESCROW AGREEMENT" has the meaning set forth in Section 2(c)(ii) below.
"ESCROW FUND" has the meaning set forth in Section 9 below.
"EXCESS LOSS ACCOUNT" has the meaning set forth in Reg. Section 1.1502-19.
"FCC AUTHORIZATIONS" means all approvals, consents, permits, licenses,
certificates, and authorizations given by the Federal Communications Commission
or similar federal governmental agency to provide the telecommunications
services currently provided by the Seller and to conduct its business as it is
currently conducted.
"GAAP" means United States generally accepted accounting principles as in
effect from time to time.
"INTELLECTUAL PROPERTY" means (a) all inventions (whether patentable or
unpatentable and whether or not reduced to practice), all improvements thereto,
and all patents, patent applications, and patent disclosures, together with all
reissuances, continuations, continuations-in-part, revisions, extensions, and
reexaminations thereof, (b) all trademarks, service marks, trade dress, logos,
trade names, and corporate names, together with all translations, adaptations,
derivations, and combinations thereof and including all goodwill associated
therewith, and all applications, registrations, and renewals in connection
therewith, (c) all copyrightable works, all copyrights, and all applications,
registrations, and renewals in connection therewith, (d) all mask works and all
applications, registrations, and renewals in connection therewith, (e) all trade
secrets and confidential business information (including ideas, research and
development, know-how, formulas, compositions, manufacturing and production
processes and techniques, technical data, designs, drawings, specifications,
customer and supplier lists, pricing and cost information, and business and
marketing plans and proposals), (f) all computer software (including data and
related documentation), (g) all other proprietary rights, and (h) all copies and
tangible embodiments thereof (in whatever form or medium).
"▇▇▇ NOTE" has the meaning set forth above in this Section 1, under the
definition of Assumed Liabilities.
"KNOWLEDGE" means actual knowledge after reasonable investigation.
"LIABILITY" means any liability (whether known or unknown, whether asserted
or unasserted, whether absolute or contingent, whether accrued or unaccrued,
whether liquidated or unliquidated, and whether due or to become due), including
any liability for Taxes.
"LOCK UP AGREEMENT" has the meaning set forth in Section 2(c)(iii) below.
"MOST RECENT BALANCE SHEET" means the balance sheet contained within the
Most Recent Financial Statements.
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"MOST RECENT FINANCIAL STATEMENTS" has the meaning set forth in Section
3(f) below.
"MOST RECENT FISCAL MONTH END" has the meaning set forth in Section 3(f)
below.
"MOST RECENT FISCAL YEAR END" has the meaning set forth in Section 3(f)
below.
"MULTIEMPLOYER PLAN" has the meaning set forth in ERISA Section 3(37).
"ORDINARY COURSE OF BUSINESS" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity and
frequency).
"PARTY" has the meaning set forth in the preface above.
"PERSON" means an individual, a partnership, a corporation, an association,
a joint stock company, a trust, a joint venture, an unincorporated organization,
or a governmental entity (or any department, agency, or political subdivision
thereof).
"PURCHASE PRICE" has the meaning set forth in Section 2(c)(i) below.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITIES EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"SECURITY INTEREST" means any mortgage, pledge, lien, encumbrance, charge,
or other security interest, OTHER THAN (a) mechanic's, materialmen's, and
similar liens, (b) liens for Taxes not yet due and, (c) purchase money liens and
liens securing rental payments under capital lease arrangements, and (d) other
liens arising in the Ordinary Course of Business and not incurred in connection
with the borrowing of money.
"SELLER" has the meaning set forth in the preface above.
"SELLER MANAGEMENT MEMBERS" means ▇▇▇▇ ▇. ▇▇▇▇, J. ▇▇▇▇▇ ▇▇▇▇, and H. ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇.
"SELLER MEMBERS' REPRESENTATIVE" has the meaning set forth in Section 10(h)
below.
"SELLER MEMBER" means any person who or which holds any Seller Membership
Interests.
"SELLER MEMBERSHIP INTEREST" means any membership interest in the Seller.
"SLAMMING CLAIMS" has the meaning set forth in Section 3(i) below.
"STATE PUC AUTHORIZATIONS" means all approvals, consents, permits,
licenses, certificates, and authorizations given by any state or local
regulatory authority to provide the
10
telecommunications services currently provided by the Seller and to conduct
its business as it is currently conducted.
"SUBSIDIARY" means any corporation with respect to which a specified Person
(or a Subsidiary thereof) owns a majority of the common stock or has the power
to vote or direct the voting of sufficient securities to elect a majority of the
directors.
"TAX" means any federal, state, local, or foreign income, gross receipts,
license, payroll, employment, excise, severance, stamp, occupation, premium,
windfall profits, environmental (including taxes under Code Section 59A),
customs duties, capital stock, franchise, profits, withholding, social security
(or similar), unemployment, disability, real property, personal property, sales,
use, transfer, registration, value added, alternative or add-on minimum,
estimated, or other tax of any kind whatsoever, including any interest, penalty,
or addition thereto, whether disputed or not.
"TAX RETURN" means any return, declaration, report, claim for refund, or
information return or statement relating to Taxes, including any schedule or
attachment thereto, and including any amendment thereof.
2. BASIC TRANSACTION.
(a) PURCHASE AND SALE OF ASSETS. On and subject to the terms and conditions
of this Agreement, the Buyer agrees to purchase from the Seller, and the Seller
agrees to sell, transfer, convey, and deliver to the Buyer, all of the Acquired
Assets at the Closing for the consideration specified below in this Section 2.
(b) ASSUMPTION OF LIABILITIES. On and subject to the terms and conditions
of this Agreement, the Buyer agrees to assume and become responsible for all of
the Assumed Liabilities at the Closing. The Buyer will not assume or have any
responsibility, however, with respect to any other obligation or Liability of
the Seller not included within the definition of Assumed Liabilities.
(c) PURCHASE PRICE. The Buyer agrees to pay to the Seller at the Closing:
(i) In exchange for the Assets, the Buyer will (A) issue to the
Seller that number of the Buyer Shares equal to $553,513 (the "Purchase
Price") divided by the average closing price per share of the Buyer Shares
for the five (5) day period ending on the day prior to the Closing Date,
and (B) assume certain Liabilities of the Seller.
(ii) At the Closing, to secure its obligations under Section 8
hereof and all of the Seller's representations and warranties hereunder,
the Seller will deposit with an escrow agent (the "Escrow Agent") that
number of the Buyer Shares equal to 10% of the Buyer Shares payable at the
Closing (the "Escrow Shares"), which Escrow Shares shall be held by the
Escrow Agent until the first anniversary of the Closing Date. A copy of
the escrow agreement (the "Escrow Agreement") to be entered into by and
among the Parties, the Seller Management Members, and the Escrow Agent is
attached hereto as
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Exhibit A.
(iii) The number of shares of Buyer Shares to be issued pursuant to
Section 2(c)(i) above shall be allocated among certain of the Seller's
Members, as determined by the Seller and the Seller Management Members in
their sole and absolute discretion, based upon the fair market values of
the respective assets and liabilities of each of the entities comprising
the Seller as of the Closing. Additionally, at the sole discretion of the
Buyer, the Buyer's Shares to be issued will be either (A) registered when
issued under the Securities Act, subject to a twelve (12) month lockup
agreement with the Members from the date of issuance in the form attached
hereto as Exhibit B (the "Lockup Agreement"), or (B) unregistered and
restricted when issued, with such shares to be registered by the Buyer
prior to the termination of the Lockup Agreement.
(iv) The Buyer shall hold back an amount of the Buyer Shares equal
to 10% of the Purchase Price (the "Holdback Amount") for a period of one
hundred twenty (120) days from Closing (the "Holdback Period") to ensure
that the Seller delivers to the Buyer the Audited Financial Statements (as
defined in Section 3(f) below). If, by the end of the Holdback Period the
Seller has delivered the Audited Financial Statements to the Buyer, the
Buyer shall deliver and pay to the Seller, within ten (10) days after the
end of the Holdback Period, the Holdback Amount. The Seller has selected,
and Buyer hereby approves, the auditing firm of Wilson, Price, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇, P.C. to prepare the Audited Financial
Statements. The Buyer will pay the reasonable costs associated with the
preparation of such Audited Financial Statements, not to exceed $25,610.
If the Seller has not delivered the Audited Financial Statements to the
Buyer within one hundred twenty (120) days after the Closing Date, the
Seller shall forfeit such Holdback Amount to the Buyer.
(d) THE CLOSING. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Rocky Mountain
Internet, Inc. in Denver, Colorado commencing at 10:00 a.m. local time on the
earlier of (i) the second business day following the satisfaction or waiver of
all conditions to the obligations of the Parties to consummate the transactions
contemplated hereby (other than conditions with respect to actions the
respective Parties will take at the Closing itself) or (ii) February 5, 1999
(the "Closing Date"); PROVIDED, HOWEVER, that the Closing Date may be extended
until February 15, 1999, upon mutual agreement of the Parties
(e) DELIVERIES AT THE CLOSING. At the Closing, (i) the Seller will
deliver to the Buyer the various certificates, instruments, and documents
referred to in Section 6(a) below; (ii) the Buyer will deliver to the Seller
the various certificates, instruments, and documents referred to in Section
6(b) below; (iii) the Seller will execute, acknowledge (if appropriate), and
deliver to the Buyer (A) an Assignment and Assumption Agreement in the form
attached hereto as Exhibit C, (B) a ▇▇▇▇ of Sale in the form attached hereto
as Exhibit D, (C) the Escrow Agreement, (D) the Lockup Agreement, and (E)
such other instruments of sale, transfer, conveyance, and assignment as the
Buyer and its counsel reasonably may request; (iv) the Buyer will execute,
and deliver to the Seller the Assignment and Assumption Agreement; and (v)
the Buyer will deliver to the Seller the
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consideration specified in Section 2(c) above.
(f) ALLOCATION. The Parties agree to allocate the Purchase Price (and
all other capitalizable costs) among the Acquired Assets for all purposes
(including financial accounting and tax purposes) in accordance with the
allocation schedule attached hereto as Exhibit E.
3. REPRESENTATIONS AND WARRANTIES OF THE SELLER AND THE SELLER
MANAGEMENT MEMBERS. The Seller, and each of the Seller Management Members,
represents and warrants to the Buyer that the statements contained in this
Section 3 are correct and complete as of the date of this Agreement and will
be correct and complete as of the Closing Date (as though made then and as
though the Closing Date were substituted for the date of this Agreement
throughout this Section 3), except as set forth in the disclosure schedule
accompanying this Agreement and initialed by the Parties (the "Disclosure
Schedule"). The Disclosure Schedule will be arranged in paragraphs
corresponding to the lettered and numbered paragraphs contained in this
Section 3.
(a) ORGANIZATION OF THE SELLER. The Seller is a limited liability
company duly organized, validly existing, and in good standing under the laws
of the jurisdiction of its organization.
(b) AUTHORIZATION OF TRANSACTION. The Seller has full power and
authority (including full limited liability company power and authority) to
execute and deliver this Agreement and to perform its obligations hereunder.
Without limiting the generality of the foregoing, all individuals who are
signatories to this Agreement have been duly authorized to execute, deliver,
and cause the Seller to perform this Agreement. This Agreement constitutes
the valid and legally binding obligation of the Seller, enforceable in
accordance with its terms and conditions.
(c) NONCONTRAVENTION. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby
(including the assignments and assumptions referred to in Section 2 above),
will (i) violate any constitution, statute, regulation, rule, injunction,
judgment, order, decree, ruling, charge, or other restriction of any
government, governmental agency, or court to which the Seller is subject or
any provision of the articles of organization or operating agreement of the
Seller or (ii) conflict with, result in a breach of, constitute a default
under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require any notice under any
agreement, contract, lease, license, instrument, or other arrangement to
which the Seller is a party or by which it is bound or to which any of its
assets is subject (or result in the imposition of any Security Interest upon
any of its assets). Except with regard to any State PUC Authorizations and
the FCC Authorizations, the Seller does not need to give any notice to, make
any filing with, or obtain any authorization, consent, or approval of any
government or governmental agency in order for the Parties to consummate the
transactions contemplated by this Agreement (including the assignments and
assumptions referred to in Section 2 above).
(d) BROKERS' FEES. The Seller has employed a broker with respect to the
transactions contemplated by this Agreement. The Seller shall be solely
liable for any obligation to pay any fees or commissions related thereto, and
the Buyer shall have no Liability whatsoever to such broker.
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(e) TITLE TO ASSETS. The Seller has good and marketable title to, or a
valid leasehold interest in, the properties and assets used by it, located on
its premises, or shown on the Most Recent Financial Statements or acquired
after the date thereof, free and clear of all Security Interests, except for
properties and assets disposed of in the Ordinary Course of Business since
the date of the Most Recent Financial Statements. Without limiting the
generality of the foregoing, the Seller has good and marketable title to all
of the Acquired Assets, free and clear of any Security Interest or
restriction on transfer.
(f) FINANCIAL STATEMENTS. Attached hereto as Exhibit F are the
internally prepared, unaudited consolidated balance sheet and statement of
income, changes in members' equity, and cash flow as of and for the fiscal
year ended December 31, 1998 (the "Most Recent Fiscal Year End") for the
Seller (collectively, the "Most Recent Financial Statements"). The Most
Recent Financial Statements (without any notes thereto) have been prepared in
accordance with the Seller's books and records on a consistent basis
throughout the periods covered thereby, present fairly and accurately the
financial condition of the Seller as of such dates and the results of
operations of the Seller for such periods, and, to the belief of Seller and
the Seller Management Members is true, correct, and complete. Seller and the
Seller Management Members warrant that the information in the Most Recent
Financial Statements relating to the revenue of Seller is true, correct and
complete. The Most Recent Financial Statements are subject to normal
year-end adjustments (which will not be material individually or in the
aggregate) and lack footnotes and other presentation items. The Seller
agrees to cooperate fully with the Buyer in preparing and completing audited
consolidated financial statements of the Seller, prepared in accordance with
GAAP applied on a consistent basis throughout the periods covered thereby,
covering the fiscal years ended December 31, 1997 and December 31, 1998 (the
"Audited Financial Statements"). The Seller agrees to deliver (i) the
Audited Financial Statements to the Buyer within one hundred twenty (120)
days of the Closing, as provided in Section 2(c)(iv) of this Agreement, and
(ii) an internally prepared, unaudited balance sheet as of and for the period
ended January 31, 1999 within fifteen (15) days of the Closing.
(g) EVENTS SUBSEQUENT TO MOST RECENT FISCAL YEAR END. Since the Most
Recent Fiscal Year End, there has not been any material adverse change in the
business, financial condition, operations, results of operations, or future
prospects of the Seller taken as a whole.
(h) UNDISCLOSED LIABILITIES. The Seller has no Liability (and there is
no Basis for any present or future action, suit, proceeding, hearing,
investigation, charge, complaint, claim, or demand against any of them giving
rise to any Liability), except for (i) Liabilities set forth on the face of
the Most Recent Financial Statements (rather than in any notes thereto) and
(ii) Liabilities which have arisen after the Most Recent Fiscal Month End in
the Ordinary Course of Business (none of which results from, arises out of,
relates to, is in the nature of, or was caused by any breach of contract,
breach of warranty, tort, infringement, or violation of law).
(i) LEGAL COMPLIANCE. The Seller and its Affiliates have complied with
all applicable laws (including rules, regulations, codes, plans, injunctions,
judgments, orders, decrees, rulings, and charges thereunder) of federal,
state, local, and foreign governments (and all agencies thereof), including
all State PUC Authorizations and the FCC Authorizations, and no action, suit,
proceeding, hearing, investigation, charge, complaint, claim, demand, or
notice has been filed or
14
commenced against any of them alleging any failure so to comply.
Notwithstanding the foregoing, and as more fully disclosed in the Seller's
Disclosure Schedule, the Seller is the subject of three (3) complaints filed
with the FCC (the "Slamming Claims").
(j) TAX MATTERS.
(i) The Seller has filed all Tax Returns that it was required to
file. All such Tax Returns were correct and complete in all respects. All
Taxes owed by the Seller (whether or not shown on any Tax Return) have been
paid. The Seller currently is not the beneficiary of any extension of time
within which to file any Tax Return. No claim has ever been made by an
authority in a jurisdiction where the Seller does not file Tax Returns that
it is or may be subject to taxation by that jurisdiction. There are no
Security Interests on any of the assets of the Seller that arose in
connection with any failure (or alleged failure) to pay any Tax.
(ii) The Seller 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, member, or other third party.
(iii) The Seller does not expect any authority to assess any
additional Taxes for any period for which Tax Returns have been filed.
There is no dispute or claim concerning any Tax Liability of the Seller
either (A) claimed or raised by any authority in writing or (B) as to which
the Seller has Knowledge based upon personal contact with any agent of such
authority. The Seller has delivered to the Buyer correct and complete
copies of all federal income Tax Returns, examination reports, and
statements of deficiencies assessed against or agreed to by the Seller
since December 31, 1996.
(iv) The Seller has not waived any statute of limitations in
respect of Taxes or agreed to any extension of time with respect to a Tax
assessment or deficiency.
(v) The unpaid Taxes of the Seller (A) did not, as of the Most
Recent Fiscal Month End, exceed the reserve for Tax Liability (rather than
any reserve for deferred Taxes established to reflect timing differences
between book and Tax income) set forth on the face of the Most Recent
Financial Statements (rather than in any notes thereto) and (B) 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 Seller in
filing their Tax Returns.
(vi) The Seller has not filed a consent under Code Section 341(f).
None of the Assumed Liabilities is an obligation to make a payment that
will not be deductible under Code Section 280G. The Seller has disclosed
on its federal income Tax Returns all positions taken therein that could
give rise to a substantial understatement of federal income Tax within the
meaning of Code Section 6662. The Seller is not a party to any Tax
allocation or sharing agreement. The Seller (A) has not been a member of
an
15
Affiliated Group filing a consolidated federal income Tax Return at any
time during its existence, and (B) does not have Liability for the Taxes of
any Person (other than any of the Seller) under Reg. Section 1.1502-6 (or
any similar provision of state, local, or foreign law), as a transferee or
successor, by contract, or otherwise.
(vii) Section 3(j) of the Disclosure Schedule sets forth the
following information with respect to each of the Seller as of the most
recent practicable date (as well as on an estimated pro forma basis as of
the Closing giving effect to the consummation of the transactions
contemplated hereby): (A) the basis of the Seller in its assets; (B) the
amount of any net operating loss, net capital loss, unused investment or
other credit, unused foreign tax, or excess charitable contribution
allocable to the Seller; and (C) the amount of any deferred gain or loss
allocable to the Seller arising out of any Deferred Intercompany
Transaction.
(k) REAL PROPERTY LEASE. Section 3(k) of the Disclosure Schedule lists and
describes briefly all real property leased or subleased to the Seller. The
Seller has delivered to the Buyer correct and complete copies of the leases and
subleases listed in Section 3(k) of the Disclosure Schedule (as amended to
date), together with an estoppel certificate from the owner of such leased or
subleased real property to the effect that the Seller has fully complied with
its obligations thereunder and the Seller has no liability in connection
therewith.
(l) INTELLECTUAL PROPERTY.
(i) The Seller owns or has the right to use pursuant to license,
sublicense, agreement, or permission all Intellectual Property necessary or
desirable for the operation of the businesses of the Seller as presently
conducted. Each item of Intellectual Property owned or used by the Seller
immediately prior to the Closing hereunder will be owned or available for
use by the Buyer on identical terms and conditions immediately subsequent
to the Closing hereunder. The Seller has taken all necessary and desirable
action to maintain and protect each item of Intellectual Property that it
owns or uses.
(ii) The Seller has not interfered with, infringed upon,
misappropriated, or otherwise come into conflict with any Intellectual
Property rights of third parties, and the Seller has never received any
charge, complaint, claim, demand, or notice alleging any such interference,
infringement, misappropriation, or violation (including any claim that the
Seller must license or refrain from using any Intellectual Property rights
of any third party). To the Knowledge of the Seller, no third party has
interfered with, infringed upon, misappropriated, or otherwise come into
conflict with any Intellectual Property rights of the Seller.
(iii) Section 3(l)(iii) of the Disclosure Schedule identifies each
patent, trademark, tradename, service ▇▇▇▇, or other registration which has
been issued to the Seller with respect to any of its Intellectual Property,
identifies each pending application or application for registration which
the Seller has made with respect to any of its Intellectual Property, and
identifies each license, agreement, or other permission which
16
the Seller has granted to any third party with respect to any of its
Intellectual Property (together with any exceptions). The Seller has
delivered to the Buyer correct and complete copies of all such patents,
trademarks, tradenames, services marks, and other registrations,
applications, licenses, agreements, and permissions (as amended to date)
and has made available to the Buyer correct and complete copies of all
other written documentation evidencing ownership and prosecution (if
applicable) of each such item. With respect to each item of Intellectual
Property required to be identified in Section 3(l)(iii) of the Disclosure
Schedule:
(A) the Seller possesses all right, title, and interest in and
to the item, free and clear of any Security Interest, license, or
other restriction;
(B) the item is not subject to any outstanding injunction,
judgment, order, decree, ruling, or charge;
(C) no action, suit, proceeding, hearing, investigation,
charge, complaint, claim, or demand is pending or is threatened which
challenges the legality, validity, enforceability, use, or ownership
of the item; and
(D) the Seller has not agreed to indemnify any Person for or
against any interference, infringement, misappropriation, or other
conflict with respect to the item.
(iv) Section 3(l)(iv) of the Disclosure Schedule identifies each
item of Intellectual Property that any third party owns and that the Seller
uses pursuant to a material license, sublicense, agreement, or permission.
The Seller has delivered to the Buyer correct and complete copies of all
such material licenses, sublicenses, agreements, and permissions (as
amended to date). With respect to each item of Intellectual Property
required to be identified in Section 3(l)(iv) of the Disclosure Schedule:
(A) the license, sublicense, agreement, or permission covering
the item is legal, valid, binding, enforceable, and in full force and
effect;
(B) the license, sublicense, agreement, or permission will
continue to be legal, valid, binding, enforceable, and in full force
and effect on identical terms following the consummation of the
transactions contemplated hereby (including the assignments and
assumptions referred to in Section 2 above);
(C) no party to the license, sublicense, agreement, or
permission is in breach or default, and no event has occurred which,
with notice or the lapse of time, would constitute a breach or default
or permit termination, modification, or acceleration thereunder;
(D) no party to the license, sublicense, agreement, or
permission has repudiated any provision thereof;
17
(E) with respect to each sublicense, the representations and
warranties set forth in subsections (A) through (D) above are true and
correct with respect to the underlying license;
(F) the underlying item of Intellectual Property is not
subject to any outstanding injunction, judgment, order, decree,
ruling, or charge;
(G) no action, suit, proceeding, hearing, investigation,
charge, complaint, claim, or demand is pending or is threatened which
challenges the legality, validity, or enforceability of the underlying
item of Intellectual Property; and
(H) the Seller has not granted any sublicense or similar right
with respect to the license, sublicense, agreement, or permission.
(v) The Seller will not interfere with, infringe upon,
misappropriate, or otherwise come into conflict with, any Intellectual
Property rights of third parties as a result of the continued operation of
its business as presently conducted.
(m) TANGIBLE ASSETS. The Seller owns or leases all buildings, machinery,
equipment, and other tangible assets necessary for the conduct of its business
as presently conducted. Each such tangible asset is free from material defects
(patent and latent), has been maintained in accordance with normal industry
practice, is in good operating condition and repair (subject to normal wear and
tear), and is suitable for the purposes for which it presently is used.
(n) CONTRACTS. Section 3(n) of the Disclosure Schedule lists the following
material contracts and other agreements to which any of the Seller is a party:
(i) any agreement (or group of related agreements) for the lease
of personal property to or from any Person providing for lease payments;
(ii) any agreement (or group of related agreements) for the
purchase or sale of equipment, raw materials, supplies, products, or other
personal property, or for the furnishing or receipt of services, the
performance of which will extend over a period of more than one year,
result in a material loss to the Seller, or involve consideration in excess
of $10,000;
(iii) any agreement concerning a partnership or joint venture;
(iv) any agreement (or group of related agreements) under which it
has created, incurred, assumed, or guaranteed any indebtedness for borrowed
money, or any capitalized lease obligation, in excess of $10,000, or under
which it has imposed a Security Interest on any of its assets, tangible or
intangible;
(v) any agreement concerning confidentiality or noncompetition;
18
(vi) any agreement involving any of the Seller Members and their
Affiliates;
(vii) any profit sharing, stock option, stock purchase, stock
appreciation, deferred compensation, severance, or other material plan or
arrangement for the benefit of its current or former managers, officers,
and employees;
(viii) any agreement for the employment of any individual on a
full-time, part-time, consulting, or other basis providing severance
benefits;
(ix) any agreement under which it has advanced or loaned any amount
to any of its managers, officers, and employees outside the Ordinary Course
of Business;
(x) any agreement under which the consequences of a default or
termination could have a material adverse effect on the business, financial
condition, operations, results of operations, or future prospects of the
Seller; or
(xi) any other agreement (or group of related agreements) the
performance of which involves consideration in excess of $10,000.
If so requested by the Buyer, the Seller has delivered to the Buyer a
correct and complete copy of each written agreement listed in Section 3(n) of
the Disclosure Schedule. The Seller is not a party to or subject to the terms
of any material oral agreement.
(o) NOTES AND ACCOUNTS RECEIVABLE. All notes and accounts receivable of the
Seller are reflected properly on their books and records, are valid receivables
subject to no setoffs or counterclaims, are current and collectible, and will be
collected in accordance with their terms at their recorded amounts, subject only
to the reserve for bad debts set forth on the face of the Most Recent Financial
Statements (rather than in any notes thereto) as adjusted for the passage of
time through the Closing Date in accordance with the past custom and practice of
the Seller.
(p) POWERS OF ATTORNEY. There are no outstanding powers of attorney
executed on behalf of the Seller.
(q) INSURANCE. Section 3(q) of the Disclosure Schedule sets forth the
following information with respect to each insurance policy (including policies
providing property, casualty, liability, and workers' compensation coverage and
bond and surety arrangements) to which the Seller has been a party, a named
insured, or otherwise the beneficiary of coverage at any time within the past
five (5) years:
(i) the name, address, and telephone number of the agent;
(ii) the name of the insurer, the name of the policyholder, and the
name of each covered insured;
19
(iii) the policy number and the period of coverage;
(iv) the scope (including an indication of whether the coverage was
on a claims made, occurrence, or other basis) and amount (including a
description of how deductibles and ceilings are calculated and operate) of
coverage; and
(v) a description of any retroactive premium adjustments or other
loss-sharing arrangements.
With respect to each such insurance policy: (A) the policy is legal, valid,
binding, enforceable, and in full force and effect; (B) the policy will continue
to be legal, valid, binding, enforceable, and in full force and effect on
identical terms following the consummation of the transactions contemplated
hereby (including the assignments and assumptions referred to in Section 2
above); (C) neither any of the Seller nor any other party to the policy is in
breach or default (including with respect to the payment of premiums or the
giving of notices), and no event has occurred which, with notice or the lapse of
time, would constitute such a breach or default, or permit termination,
modification, or acceleration, under the policy; and (D) no party to the policy
has repudiated any provision thereof. The Seller has been covered during the
past five (5) years by insurance in scope and amount customary and reasonable
for the business in which it has engaged during the aforementioned period.
Section 3(q) of the Disclosure Schedule describes any self-insurance
arrangements affecting any of the Seller.
(r) LITIGATION. Except for the Slamming Claims described in Section 3(r) of
the Disclosure Schedule, the Seller (i) is not subject to any outstanding
injunction, judgment, order, decree, ruling, or charge, nor (ii) is it a party
or, to the Knowledge of the Seller, is threatened to be made a party to any
action, suit, proceeding, hearing, or investigation of, in, or before any court
or quasi-judicial or administrative agency of any federal, state, local, or
foreign jurisdiction or before any arbitrator. The Seller does not have any
reason to believe that any such action, suit, proceeding, hearing, or
investigation may be brought or threatened against the Seller.
(s) WARRANTIES. No product or service sold, leased, or delivered by the
Seller is subject to any guaranty, warranty, or other indemnity.
(t) EMPLOYEES. To the Knowledge of the Seller, no executive, key employee,
or group of employees has any plans to terminate employment with the Seller.
The Seller is not a party to or bound by any collective bargaining agreement,
nor has it experienced any strikes, grievances, claims of unfair labor
practices, or other collective bargaining disputes. The Seller has not
committed any unfair labor practice. The Seller has no knowledge of any
organizational effort presently being made or threatened by or on behalf of any
labor union with respect to employees of the Seller.
(u) EMPLOYEE BENEFITS. The Seller does not have any Employee Benefit Plan
that it maintains or to which it contributes or has any obligation to
contribute, except for its existing medical insurance and health benefit plan.
20
(v) GUARANTIES. The Seller is not a guarantor or otherwise is liable for
any Liability or other obligation (including indebtedness) of any other Person.
(w) ENVIRONMENTAL, HEALTH, AND SAFETY MATTERS. The Seller and its
Affiliates have complied and are in compliance with all Environmental, Health,
and Safety Requirements.
(x) CERTAIN BUSINESS RELATIONSHIPS WITH THE SELLER. None of the Seller
Management Members, or their Affiliates, has been involved in any business
arrangement or relationship with the Seller within the past twelve (12) months,
and none of the Seller Management Members, or their Affiliates, owns any asset,
tangible or intangible, which is used in the business of the Seller.
(y) INVESTMENT. The Seller (i) understands that some, if not all, of the
Buyer Shares have not been registered under the Securities Act, or under any
state securities laws, and are being offered and sold in reliance upon federal
and state exemptions for transactions not involving any public offering, (ii) is
acquiring the Buyer Shares solely for its own account for investment purposes,
and not with a view to the distribution thereof (except to the Seller Members as
determined by Seller), (iii) acknowledges that, either directly or with the
assistance of a purchaser representative (as that term is defined under Rule
501(h) of Regulation D), if any, is a sophisticated investor with knowledge and
experience in business and financial matters, (iv) has, either directly or
through a purchaser representative, if any, received certain information
concerning the Buyer and has had, either alone or with the assistance of a
purchaser representative, if any, the opportunity to obtain additional
information as desired in order to evaluate the merits and the risks inherent in
holding the Buyer Shares, (v) is, or the Seller Members are, able to bear the
economic risk and lack of liquidity inherent in holding the Buyer Shares, and/or
(vi) is an Accredited Investor.
(z) NO PREDECESSORS OR SUBSIDIARIES. The Seller does not have, nor has it
ever had, any predecessors or Subsidiaries.
(aa) STATE PUC AUTHORIZATIONS AND FCC AUTHORIZATIONS. Section 3(aa) of
the Disclosure Schedule identifies each of the State PUC Authorizations and the
FCC Authorizations which has been issued to the Seller. None of the State PUC
Authorizations or the FCC Authorizations has been modified, amended, or
otherwise altered, and each remains legal, valid, binding, in full force and
effect, and unaffected by the transactions contemplated by this Agreement.
(bb) DISCLOSURE. The representations and warranties contained in this
Section 3 do not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements and
information contained in this Section 3 not misleading.
4. REPRESENTATIONS AND WARRANTIES OF THE BUYER. The Buyer represents and
warrants to the Seller that the statements contained in this Section 4 are
correct and complete as of the date of this Agreement and will be correct and
complete as of the Closing Date (as though made then and as though the Closing
Date were substituted for the date of this Agreement throughout this Section 4),
except as set forth in the Disclosure Schedule. The Disclosure Schedule will be
arranged in paragraphs corresponding to the lettered and numbered paragraphs
contained in this Section 4.
21
(a) ORGANIZATION OF THE BUYER. The Buyer is a corporation duly organized,
validly existing, and in good standing under the laws of the jurisdiction of its
incorporation.
(b) AUTHORIZATION OF TRANSACTION. The Buyer has full power and authority
(including full corporate power and authority) to execute and deliver this
Agreement and to perform its obligations hereunder. This Agreement constitutes
the valid and legally binding obligation of the Buyer, enforceable in accordance
with its terms and conditions.
(c) NONCONTRAVENTION. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby
(including the assignments and assumptions referred to in Section 2 above), will
(i) violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which the Buyer is subject or any provision of
its charter or bylaws or (ii) conflict with, result in a breach of, constitute a
default under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require any notice under any
agreement, contract, lease, license, instrument, or other arrangement to which
the Buyer is a party or by which it is bound or to which any of its assets is
subject. The Buyer does not need to give any notice to, make any filing with, or
obtain any authorization, consent, or approval of any government or governmental
agency in order for the Parties to consummate the transactions contemplated by
this Agreement (including the assignments and assumptions referred to in Section
2 above).
(d) BROKERS' FEES. The Buyer has no Liability or obligation to pay any fees
or commissions to any broker, finder, or agent with respect to the transactions
contemplated by this Agreement for which the Seller could become liable or
obligated.
(e) COMPLETE INVESTIGATION. The Buyer has been afforded an opportunity to
conduct, and has conducted to its satisfaction, a complete due diligence
investigation of the Seller, the Acquired Assets, and the Assumed Liabilities.
The Seller and the Seller Members have cooperated in connection with the Buyer's
investigation. The Buyer has been furnished such information, and the Buyer has
had an opportunity to ask such questions and have them answered by the Seller or
the Seller Members, as the Buyer deemed necessary in order to make an informed
investment decision with respect to its acquisition of the Acquired Assets.
(f) ISSUANCE OF BUYER SHARES. The Buyer Shares will have been duly
authorized and, upon issuance to the Seller (and when delivered to the Seller
subsequent to the Closing in the case of the Buyer Shares delivered from escrow
or pursuant to the hold back provisions of Section 2(c)), will be validly
issued, fully paid and nonassessable. The Buyer Shares will be issued and
delivered to the Seller free and clear of any encumbrance or restriction, except
those encumbrances expressly imposed by this Agreement, the Escrow Agreement and
the Lock Up Agreement, and the restrictions upon transfer imposed by Federal and
Alabama securities laws.
(g) SELLER'S EMPLOYEES. Immediately following the Closing, the Buyer will
employ, as "at-will" employees, all of the Seller's existing employees at
similar or equivalent positions and for similar compensation paid to them by the
Seller, as disclosed to the Buyer. The Seller's employees will be provided by
the Buyer with equivalent medical insurance benefits and
22
coverage with no gap in, or diminishment of, such coverage by reason of their
termination of employment by the Seller.
(h) AUTHORIZATIONS. The Buyer acknowledges that it will be responsible
for obtaining the consents to, or approvals of, the transfers from the Seller
to the Buyer of all State PUC Authorizations and FCC Authorizations of the
Seller transferred by the Seller to the Buyer pursuant to this Agreement.
The Buyer will pay all costs and expenses incurred as a result of such
consents and approvals, notwithstanding that the transfers thereof may occur
after the Closing.
(i) SEC FILINGS. As of December 31, 1998, the Buyer has filed all
forms, proxy statements, schedules, reports, or other documents required to
be filed by it with the Securities and Exchange Commission pursuant to the
Securities and Exchange Act of 1934 (the "SEC Filings"), and such SEC Filings
were true, complete, and accurate as of the dates thereof.
(j) ABSENCE OF CERTAIN CHANGES. Since the date of filing with the SEC
of its most recent quarterly report on Form 10-Q, as supplemented by
subsequent current reports on Forms 8-K thereafter, there has not been any
material adverse change with respect to the business of the Buyer or any
event, occurrence, or development of a set of circumstances or facts known to
the Buyer, which, as of the date hereof, could reasonably be expected to have
a material adverse effect on the Buyer.
(k) DISCLOSURE. The representations and warranties contained in this
Section 4 do not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements and
information contained in this Section 4 not misleading.
5. PRE-CLOSING COVENANTS. The Parties agree as follows with respect to
the period between the execution of this Agreement and the Closing.
(a) GENERAL. Each of the Parties will use its reasonable best efforts to
take all action and to do all things necessary, proper, or advisable in order
to consummate and make effective the transactions contemplated by this
Agreement (including satisfaction, but not waiver, of the Closing conditions
set forth in Section 6 below).
(b) NOTICES AND CONSENTS. The Seller will give any notices to third
parties, and the Seller will use its reasonable best efforts to obtain any
third party consents, that the Buyer reasonably may request in connection
with the matters referred to in Section 3(c) above. Each of the Parties will
give any notices to, make any filings with, and use its reasonable best
efforts to obtain any authorizations, consents, and approvals of governments
and governmental agencies in connection with the matters referred to in
Section 3(c), Section 3(aa), and Section 4(c) above. Without limiting the
generality of the foregoing, each of the Parties will any further filings
that may be necessary, proper, or advisable in connection therewith.
(c) OPERATION OF BUSINESS. The Seller will not engage in any practice,
take any action, or enter into any transaction outside the Ordinary Course of
Business. Without limiting the generality
23
of the foregoing, the Seller will not (i) declare, set aside, or pay any
dividend or make any distribution with respect to its capital stock or
redeem, purchase, or otherwise acquire any of its capital stock, (ii) pay any
amount to any third party with respect to any Liability or obligation
(including any costs and expenses the Seller has incurred or may incur in
connection with this Agreement and the transactions contemplated hereby)
which would not constitute an Assumed Liability if in existence as of the
Closing, or (iii) otherwise engage in any practice, take any action, or enter
into any transaction of the sort described in Section 3(n) above.
(d) PRESERVATION OF BUSINESS. The Seller will keep its business and
properties substantially intact, including its present operations, physical
facilities, working conditions, and relationships with lessors, licensers,
suppliers, customers, and employees.
(e) FULL ACCESS. The Seller will permit representatives of the Buyer to
have full access at all reasonable times, and in a manner so as not to
interfere with the normal business operations of the Seller, to all premises,
properties, personnel, books, records (including Tax records), contracts, and
documents of or pertaining to the Seller.
(f) NOTICE OF DEVELOPMENTS. Each Party will give prompt written notice
to the other Party of any material adverse development causing a breach of
any of its own representations and warranties in Section 3 and Section 4
above. No disclosure by any Party pursuant to this Section 5(f), however,
shall be deemed to amend or supplement the Disclosure Schedule or to prevent
or cure any misrepresentation, breach of warranty, or breach of covenant.
(g) EXCLUSIVITY. The Seller will not (i) solicit, initiate, or encourage
the submission of any proposal or offer from any Person relating to the
acquisition of any capital stock or other voting securities, or any
substantial portion of the assets, of the Seller (including any acquisition
structured as a merger, consolidation, or share exchange) or (ii) participate
in any discussions or negotiations regarding, furnish any information with
respect to, assist or participate in, or facilitate in any other manner any
effort or attempt by any Person to do or seek any of the foregoing. The
Seller will notify the Buyer immediately if any Person makes any proposal,
offer, inquiry, or contact with respect to any of the foregoing.
6. CONDITIONS TO OBLIGATION TO CLOSE.
(a) CONDITIONS TO OBLIGATION OF THE BUYER. The obligation of the Buyer to
consummate the transactions to be performed by it in connection with the Closing
is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 3
above shall be true and correct in all material respects at and as of the
Closing Date;
(ii) the Seller shall have performed and complied with all of its
covenants hereunder in all material respects through the Closing;
(iii) no action, suit, or proceeding shall be pending before any
court or
24
quasi-judicial or administrative agency of any federal, state, local, or
foreign jurisdiction wherein an unfavorable injunction, judgment, order,
decree, ruling, or charge would (A) prevent consummation of any of
the transactions contemplated by this Agreement, (B) cause any of the
transactions contemplated by this Agreement to be rescinded following
consummation, or (C) affect adversely the right of the Buyer to own the
Acquired Assets, to operate the former business of the Seller (and no such
injunction, judgment, order, decree, ruling, or charge shall be in effect);
(iv) the Seller shall have delivered to the Buyer a certificate to
the effect that each of the conditions specified above in Section
6(a)(i)-(iii) is satisfied in all respects;
(v) the Seller and the Buyer shall have received all other
authorizations, consents, and approvals of governments and governmental
agencies referred to in Section 3(c), Section 3(aa), and Section 4(c)
above;
(vi) the Buyer shall have received from counsel to the Seller an
opinion in form and substance as set forth in Exhibit G attached hereto,
addressed to the Buyer, and dated as of the Closing Date;
(vii) the Seller shall have terminated the employment of all
employees of the Seller on the Closing Date.
(viii) the Buyer shall have received from the Seller Members the
executed Lock Up Agreement.
(ix) the Buyer shall have obtained, on terms and conditions
reasonably satisfactory to it, all of the financing it needs in order to
consummate the transactions contemplated hereby and fund the working
capital requirements of the acquired businesses after the Closing;
(x) all actions to be taken by the Seller in connection with
consummation of the transactions contemplated hereby and all certificates,
opinions, instruments, and other documents required to effect the
transactions contemplated hereby will be reasonably satisfactory in form
and substance to the Buyer;
(xi) certain assignments, notes and other related agreements
relating to the ▇▇▇ Note shall have been executed and delivered at Closing;
(xii) the Buyer and the Seller shall have agreed upon a new
employment agreement relating to J. ▇▇▇▇▇ ▇▇▇▇;
(xiii) the Buyer shall have entered into a new lease agreement for
the premises currently leased by the Seller, on terms and conditions
acceptable to the Buyer; and
(xiv) the Seller's average monthly revenues for the three-month
period from
25
October 1, 1998 to December 31, 1998 shall be determined to have exceeded
$250,000 per month.
The Buyer may waive any condition specified in this Section 6(a) if it executes
a writing so stating at or prior to the Closing.
(b) CONDITIONS TO OBLIGATION OF THE SELLER. The obligation of the Seller to
consummate the transactions to be performed by it in connection with the Closing
is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 4
above shall be true and correct in all material respects at and as of the
Closing Date;
(ii) the Buyer shall have performed and complied with all of its
covenants hereunder in all material respects through the Closing;
(iii) no action, suit, or proceeding shall be pending or threatened
before any court or quasi-judicial or administrative agency of any federal,
state, local, or foreign jurisdiction or before any arbitrator wherein an
unfavorable injunction, judgment, order, decree, ruling, or charge would
(A) prevent consummation of any of the transactions contemplated by this
Agreement, or (B) cause any of the transactions contemplated by this
Agreement to be rescinded following consummation (and no such injunction,
judgment, order, decree, ruling, or charge shall be in effect);
(iv) the Buyer shall have delivered to the Seller a certificate to
the effect that each of the conditions specified above in Section
6(b)(i)-(iii) is satisfied in all respects;
(v) the Seller shall have received from counsel to the Buyer an
opinion in form and substance as set forth in Exhibit H attached hereto,
addressed to the Seller, and dated as of the Closing Date; and
(vi) certain assignments, notes and other related agreements
relating to the ▇▇▇ Note shall have been executed and delivered at Closing;
(vii) the Buyer and the Seller shall have agreed upon a new
employment agreement relating to J. ▇▇▇▇▇ ▇▇▇▇;
(viii) the Buyer shall have entered into a new lease agreement for
the premises currently leased by the Seller, on terms and conditions
acceptable to the Buyer; and
(ix) all actions to be taken by the Buyer in connection with
consummation of the transactions contemplated hereby and all certificates,
opinions, instruments, and other documents required to effect the
transactions contemplated hereby will be reasonably satisfactory in form
and substance to the Seller.
26
The Seller may waive any condition specified in this Section 6(b) if it
executes a writing so stating at or prior to the Closing.
7. TERMINATION.
(a) TERMINATION OF AGREEMENT. Certain of the Parties may terminate this
Agreement as provided below:
(i) the Buyer and the Seller may terminate this Agreement by mutual
written consent at any time prior to the Closing;
(ii) the Buyer may terminate this Agreement by giving written notice
to the Seller at any time prior to the Closing (A) in the event the Seller
has breached any material representation, warranty, or covenant contained
in this Agreement in any material respect, the Buyer has notified the
Seller of the breach, and the breach has continued without cure for a
period of thirty (30) days after the notice of breach, or (B) if the
Closing shall not have occurred on or before January 31, 1999, by reason of
the failure of any condition precedent under Section 6(a) hereof (unless
the failure results primarily from the Buyer itself breaching any
representation, warranty, or covenant contained in this Agreement); and
(iii) the Seller may terminate this Agreement by giving written notice
to the Buyer at any time prior to the Closing (A) in the event the Buyer
has breached any material representation, warranty, or covenant contained
in this Agreement in any material respect, the Seller has notified the
Buyer of the breach, and the breach has continued without cure for a period
of thirty (30) days after the notice of breach, or (B) if the Closing shall
not have occurred on or before January 31, 1999, by reason of the failure
of any condition precedent under Section 6(b) hereof (unless the failure
results primarily from the Seller itself breaching any representation,
warranty, or covenant contained in this Agreement).
(b) EFFECT OF TERMINATION. If any Party terminates this Agreement pursuant
to Section 7(a) above, all rights and obligations of the Parties hereunder shall
terminate without any Liability of any Party to any other Party (except for any
Liability of any Party then in breach).
8. POST-CLOSING COVENANTS. The Parties agree as follows with respect to
the period following the Closing:
(a) GENERAL. In case at any time after the Closing any further action is
necessary or desirable to carry out the purposes of Agreement, each of the
Parties will take such further action (including the execution and delivery
of such further instruments and documents) as any other Party reasonably may
request, all at the sole cost and expense of the requesting Party (unless the
requesting Party is entitled to indemnification therefor under Section 8(h)
or Section 8(i) below). The Seller Management Members acknowledge and agree
that, from and after the Closing, the Buyer will be entitled to possession of
all documents, books, records (including Tax records), agreements, and
financial data of any sort relating to the Seller; PROVIDED, HOWEVER, that
the Buyer
27
shall provide the Seller Management Members with reasonable access to such
documents, books, records, agreements, and financial data as necessary in the
course of taking such action as is contemplated by this Section 8(a).
(b) LITIGATION SUPPORT. In the event and for so long as any Party
actively is contesting or defending against any action, suit, proceeding,
hearing, investigation, charge, complaint, claim, or demand in connection
with (i) any transaction contemplated under this Agreement or (ii) any fact,
situation, circumstance, status, condition, activity, practice, plan,
occurrence, event, incident, action, failure to act, or transaction on or
prior to the Closing Date involving the Seller, each of the other Parties
will cooperate with the contesting or defending Party and his or its counsel
in the contest or defense, make available his or its personnel, and provide
such testimony and access to his or its books and records as shall be
necessary in connection with the contest or defense, all at the sole cost and
expense of the contesting or defending Party (unless the contesting or
defending Party is entitled to indemnification therefor under Section 8(h),
Section 8(i), or Section 8(j) below).
(c) TRANSITION. None of the Seller Management Members will take any
action that is designed or intended to have the effect of discouraging any
lessor, licenser, customer, supplier, or other business associate of the
Seller from maintaining the same business relationships with the Buyer after
the Closing as it maintained with the Seller prior to the Closing. Each of
the Seller Management Members will refer all customer inquiries relating to
the business of the Seller to the Buyer from and after the Closing.
(d) CONFIDENTIALITY. Each of the Seller Management Members will treat
and hold as such all of the Confidential Information, refrain from using any
of the Confidential Information except in connection with this Agreement, and
deliver promptly to the Buyer or destroy, at the request and option of the
Buyer, all tangible embodiments (and all copies) of the Confidential
Information which are in his/her or its possession. In the event that any of
the Seller Management Members is requested or required (by oral question or
request for information or documents in any legal proceeding, interrogatory,
subpoena, civil investigative demand, or similar process) to disclose any
Confidential Information, that Seller Management Member will notify the Buyer
promptly of the request or requirement so that the Buyer may seek an
appropriate protective order or waive compliance with the provisions of this
Section 8(d). If, in the absence of a protective order or the receipt of a
waiver hereunder, any of the Seller Management Members is, on the advice of
counsel, compelled to disclose any Confidential Information to any tribunal
or else stand liable for contempt, that Seller Stockholder may disclose the
Confidential Information to the tribunal; PROVIDED, HOWEVER, that the
disclosing Seller Member shall use his or its reasonable best efforts to
obtain, at the reasonable request of the Buyer, an order or other assurance
that confidential treatment will be accorded to such portion of the
Confidential Information required to be disclosed as the Buyer shall
designate.
(e) COVENANT NOT TO COMPETE. For a period of two (2) years from and
after the Closing Date, none of the Seller Management Members will engage
directly or indirectly in any business that the Seller conducts as of the
Closing Date in any geographic area in which the Seller conducts that
business as of the Closing Date; PROVIDED, HOWEVER, that no owner of less
than one percent (1%) of the outstanding stock of any publicly traded
corporation shall be deemed to engage solely
28
by reason thereof in any of its businesses. If the final judgment of a court
of competent jurisdiction declares that any term or provision of this Section
8(e) is invalid or unenforceable, the Parties agree that the court making the
determination of invalidity or unenforceability shall have the power to
reduce the scope, duration, or area of the term or provision, to delete
specific words or phrases, or to replace any invalid or unenforceable term or
provision with a term or provision that is valid and enforceable and that
comes closest to expressing the intention of the invalid or unenforceable
term or provision, and this Agreement shall be enforceable as so modified
after the expiration of the time within which the judgment may be appealed.
(f) NON-SOLICITATION. The Seller and the Seller Management Members
covenant that for a period of eighteen (18) months from and after the Closing
Date, they shall not directly or indirectly induce or solicit, or directly or
indirectly aid or assist any other person to induce or solicit, any person who
is (or within the prior twelve months had been) an employee, salesman, agent,
consultant, distributor, representative, advisor, customer or supplier of the
Buyer to terminate that person's employment or business relations with the
other.
(g) SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All of the
representations and warranties of the Parties contained in this Agreement shall
survive the Closing (even if the damaged Party knew or had reason to know of any
misrepresentation or breach of warranty at the time of Closing) and continue in
full force and effect for a period of three (3) years thereafter.
(h) INDEMNIFICATION PROVISIONS FOR BENEFIT OF THE BUYER.
(i) In the event the Seller breaches (or in the event any third
party alleges facts that, if true, would mean the Seller has breached) any
of its representations, warranties, and covenants contained in this
Agreement, and, if there is an applicable survival period pursuant to
Section 8(g) above, provided that the Buyer makes a written claim for
indemnification against any of the Seller Management Members within such
survival period, then each of the Seller and the Seller Management Members
agrees to indemnify the Buyer from and against the entirety of any Adverse
Consequences the Buyer may suffer through and after the date of the claim
for indemnification resulting from, arising out of, relating to, in the
nature of, or caused by the breach.
(ii) In the event any of the Seller Management Members breaches (or
in the event any third party alleges facts that, if true, would mean any of
the Seller Management Members has breached) any of his/her or its
representations, warranties, and covenants contained in this Agreement,
and, if there is an applicable survival period pursuant to Section 8(g)
above, provided that the Buyer makes a written claim for indemnification
against the Seller Management Members within such survival period, then
each of the Seller and the Seller Management Members agree to indemnify the
Buyer from and against the entirety of any Adverse Consequences the Buyer
may suffer through and after the date of the claim for indemnification
resulting from, arising out of, relating to, in the nature of, or caused by
the breach (or the alleged breach).
(iii) Each of the Seller and the Seller Management Members agrees to
29
indemnify the Buyer from and against the entirety of any Adverse
Consequences the Buyer may suffer resulting from, arising out of, relating
to, in the nature of, or caused by any Liability of the Seller which is not
an Assumed Liability (including any Liability of the Seller that becomes a
Liability of the Buyer under any Environmental, Health, and Safety
Requirements, for unpaid Taxes, or otherwise by operation of law).
(iv) Each of the Seller and the Seller Management Members agrees to
indemnify the Buyer from and against the entirety of any Adverse
Consequences the Buyer may suffer resulting from, arising out of, relating
to, in the nature of, or caused by any Liability of the Seller (A) for
Taxes of the Seller with respect to any Tax year or portion thereof ending
on or before the Closing Date, to the extent such Taxes are not reflected
in the reserve for Tax Liability (rather than any reserve for deferred
Taxes established to reflect timing differences between book and Tax
income) shown on the face of the Most Recent Financial Statements (rather
than in any notes thereto, as such reserve is adjusted for the passage of
time through the Closing Date in accordance with the past custom and
practice of the Seller in filing its Tax Returns, and (B) for the unpaid
Taxes of any Person (other than the Seller) under Reg. Section 1.1502.6 (or
any similar provision of sate, local, or foreign law), as a transferee or
successor, by contract, or otherwise.
(v) Each of the Seller and the Seller Management Members agrees to
indemnify the Buyer from and against the entirety of any Adverse
Consequences the Buyer may suffer resulting from, arising out of, relating
to, in the nature of, or caused by any Liability of the Seller in relation
to the termination of any of the Seller's employees.
(vi) Each of the Seller and the Seller Management Members agrees to
indemnify the Buyer from and against the entirety of any Adverse
Consequences the Buyer may suffer resulting from, arising out of, relating
to, in the nature of, or caused by the Slamming Claims.
(vii) Neither the Seller nor the Seller Management Members shall
have any liability to the Buyer for any Adverse Consequences set forth in
this Section 8(h) to the extent that such Adverse Consequences are covered
by the Buyer's insurance. In addition, neither the Seller nor the Seller
Management Members shall be obligated to indemnify the Buyer pursuant to
this Section 8(h) unless and until the costs related to such Adverse
Consequences exceed a cumulative aggregate amount of $50,000, and, except
for intentional fraud and willful misconduct, in no event, shall the
liability of the Seller and the Seller Management Members pursuant to this
Section 8(h) exceed $350,000.
(i) INDEMNIFICATION PROVISIONS FOR BENEFIT OF THE SELLER AND THE SELLER
MANAGEMENT MEMBERS.
(i) In the event the Buyer breaches (or in the event any third
party alleges facts that, if true, would mean the Buyer has breached) any
of its representations,
30
warranties, and covenants contained in this Agreement, and, if there is
an applicable survival period pursuant to Section 8(g) above, provided
that any of the Seller Management Members makes a written claim for
indemnification against the Buyer within such survival period, then the
Buyer agrees to indemnify each of the Seller and the Seller Management
Members from and against the entirety of any Adverse Consequences the
Seller and the Seller Management Members may suffer through and after
the date of the claim for indemnification resulting from, arising out of,
relating to, in the nature of, or caused by the breach (or the alleged
breach).
(ii) The Buyer agrees to indemnify each of the Seller and the
Seller Management Members from and against the entirety of any Adverse
Consequences the Seller and the Seller Management Members may suffer
resulting from, arising out of, relating to, in the nature of, or caused by
any (A) Assumed Liability, and (B) the Seller's operation of the Acquired
Assets after the Closing.
(iii) The Buyer agrees to fully indemnify ▇▇▇▇ ▇. ▇▇▇▇ in relation
to, and to assume all of his obligations under, the personal guaranty
executed by ▇▇▇▇ ▇. ▇▇▇▇ respecting the ▇▇▇ Note (the "Cope Guaranty").
▇▇▇▇ ▇. ▇▇▇▇ agrees to notify the Buyer, within forty-eight (48) hours, of
any notice of an attempt, or an intention, by any party to enforce the
provisions of the Cope Guaranty. In no event, shall ▇▇▇▇ ▇. ▇▇▇▇ provide
anything of value to any party attempting to enforce the ▇▇▇ Note or the
Cope Guaranty without first giving the Buyer ten (10) days prior written
notice.
(iv) Except as set forth in subsection 8(i)(iii) above, the Buyer
shall not have any liability to either the Seller or the Seller Management
Members for any Adverse Consequences set forth in this Section 8(i) to the
extent that such Adverse Consequences are covered by insurance of the
Seller or the Seller Management Members. In addition, except as set forth
in subsection 8(i)(iii) above, Buyer shall not be obligated to indemnify
either the Seller or the Seller Management Members pursuant to this Section
8(i) unless and until the aggregate costs related to such Adverse
Consequences exceed a cumulative aggregate amount of $50,000, and, in no
event, shall the liability of the Buyer pursuant to this Section 8(i)
exceed $350,000.
(j) MATTERS INVOLVING THIRD PARTIES.
(i) If any third party shall notify any Party (the "Indemnified
Party") with respect to any matter (a "Third Party Claim") which may give
rise to a claim for indemnification against any other Party (the
"Indemnifying Party") under this Section 8, then the Indemnified Party
shall promptly notify each Indemnifying Party thereof in writing; PROVIDED,
HOWEVER, that no delay on the part of the Indemnified Party in notifying
any Indemnifying Party shall relieve the Indemnifying Party from any
obligation hereunder unless (and then solely to the extent) the
Indemnifying Party thereby is prejudiced.
(ii) Any Indemnifying Party will have the right to defend the
Indemnified Party against the Third Party Claim with counsel of its choice
reasonably satisfactory to the
31
Indemnified Party so long as (A) the Indemnifying Party notifies the
Indemnified Party in writing within fifteen (15) days after the Indemnified
Party has given notice of the Third Party Claim that the Indemnifying
Party will indemnify the Indemnified Party from and against the entirety
of any Adverse Consequences the Indemnified Party may suffer resulting
from, arising out of, relating to, in the nature of, or caused by the
Third Party Claim, (B) the Indemnifying Party provides the Indemnified
Party with evidence reasonably acceptable to the Indemnified Party that
the Indemnifying Party will have the financial resources to defend
against the Third Party Claim and fulfill its indemnification obligations
hereunder, (C) the Third Party Claim involves only money damages and does
not seek an injunction or other equitable relief, (D) settlement of, or
an adverse judgment with respect to, the Third Party Claim is not, in
the good faith judgment of the Indemnified Party, likely to establish a
precedential custom or practice materially adverse to the continuing
business interests of the Indemnified Party, and (E) the Indemnifying
Party conducts the defense of the Third Party Claim actively and
diligently.
(iii) So long as the Indemnifying Party is conducting the defense of
the Third Party Claim in accordance with Section 8(j)(ii) above, (A) the
Indemnified Party may retain separate co-counsel at its sole cost and
expense and participate in the defense of the Third Party Claim, (B) the
Indemnified Party will not consent to the entry of any judgment or enter
into any settlement with respect to the Third Party Claim without the prior
written consent of the Indemnifying Party (not to be withheld
unreasonably), and (C) the Indemnifying Party will not consent to the entry
of any judgment or enter into any settlement with respect to the Third
Party Claim without the prior written consent of the Indemnified Party (not
to be withheld unreasonably).
(iv) In the event any of the conditions in Section 8(j)(ii) above is
or becomes unsatisfied, however, (A) the Indemnified Party may defend
against, and consent to the entry of any judgment or enter into any
settlement with respect to, the Third Party Claim in any manner it
reasonably may deem appropriate (and the Indemnified Party need not consult
with, or obtain any consent from, any Indemnifying Party in connection
therewith), (B) the Indemnifying Parties will reimburse the Indemnified
Party promptly and periodically for the costs of defending against the
Third Party Claim (including reasonable attorneys' fees and expenses), and
(C) the Indemnifying Parties will remain responsible for any Adverse
Consequences the Indemnified Party may suffer resulting from, arising out
of, relating to, in the nature of, or caused by the Third Party Claim to
the fullest extent provided in this Section.
(k) OTHER INDEMNIFICATION PROVISIONS. The indemnification provisions set
forth in Section 8(h), Section 8(i), and Section 8(j) are in addition to, and
not in derogation of, any statutory, equitable, or common law remedy (including
without limitation any such remedy arising under Environmental, Health, and
Safety Requirements) any Party may have with respect to the Seller, or the
transactions contemplated by this Agreement. Each of the Seller and the Seller
Management Members hereby agrees that he or it will not make any claim for
indemnification against any of the Buyer and its Subsidiaries by reason of the
fact that he or it was a member, manager, officer, employee, or agent of the
Seller or was serving at the request of any such entity as a partner, trustee,
32
director, officer, employee, or agent of another entity (whether such claim
is for judgments, damages, penalties, fines, costs, amounts paid in
settlement, losses, expenses, or otherwise and whether such claim is pursuant
to any statute, charter document, operating agreement, agreement, or
otherwise) with respect to any action, suit, proceeding, complaint, claim, or
demand brought by the Buyer against such Seller or such Seller Management
Members (whether such action, suit, proceeding, complaint, claim, or demand
is pursuant to this Agreement, applicable law, or otherwise).
(l) THIRD PARTY CONSENTS. The Seller shall use its best efforts to
procure, and assist the Buyer in procuring, all of the third party consents
specified in Section 3(c), Section 3(aa), and Section 4(c) above.
9. ADDITIONAL AGREEMENTS. As security for the indemnity of the Buyer
from the Seller and the Seller Management Members provided for in Section 8
above, the Escrow Shares shall be registered in the name of the Seller, but
be deposited (with an executed assignment in blank) with Norwest Bank, N.A.
as Escrow Agent, such deposit to constitute an escrow fund (the "Escrow
Fund") to be governed by the terms set forth herein and in the Escrow
Agreement. In the event of any conflict between the terms of this Agreement
and the Escrow Agreement, the terms of the Escrow Agreement shall govern.
All costs and fees of the Escrow Agent for establishing and administering the
Escrow Fund shall be borne equally by the Parties. Upon compliance with the
terms hereof, the Buyer shall be entitled to obtain indemnity first from the
Escrow Fund for all Adverse Consequences covered by the indemnity provided
for in Section 8 hereof. If the Escrow Fund is not sufficient to cover the
indemnity for the Adverse Consequences covered by Section 8 above, then the
Buyer shall be entitled to seek payment from the Seller Management Members.
10. MISCELLANEOUS.
(a) PRESS RELEASES AND PUBLIC ANNOUNCEMENTS. No Party shall issue any
press release or make any public announcement relating to the subject matter
of this Agreement prior to the Closing without the prior written approval of
the other Party; PROVIDED, HOWEVER, that any Party may make any public
disclosure it believes in good faith is required by applicable law or any
listing or trading agreement concerning its publicly-traded securities (in
which case the disclosing Party will use its reasonable best efforts to
advise the other Party prior to making the disclosure).
(b) NO THIRD-PARTY BENEFICIARIES. This Agreement shall not confer any
rights or remedies upon any Person other than the Parties and their
respective successors and permitted assigns.
(c) ENTIRE AGREEMENT. This Agreement and the Exhibits and Schedules
hereto (including the documents referred to herein) constitutes the entire
agreement between the Parties and supersedes any prior understandings,
agreements, or representations by or between the Parties, written or oral, to
the extent they related in any way to the subject matter hereof.
(d) SUCCESSION AND ASSIGNMENT. This Agreement shall be binding upon and
inure to the benefit of the Parties named herein and their respective successors
and permitted assigns. No Party may assign either this Agreement or any of its
rights, interests, or obligations hereunder without the
33
prior written approval of the other Party; PROVIDED, HOWEVER, that the Buyer
may (i) assign any or all of its rights and interests hereunder to one or
more of its Affiliates and (ii) designate one or more of its Affiliates to
perform its obligations hereunder (in any or all of which cases the Buyer
nonetheless shall remain responsible for the performance of all of its
obligations hereunder).
(e) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument. This Agreement may be
executed by facsimile provided that the original counterpart is delivered
within five (5) days of such execution.
(f) HEADINGS. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(g) NOTICES. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly given if (and
then two business days after) it is sent by registered or certified mail,
return receipt requested, postage prepaid, and addressed to the intended
recipient as set forth below:
IF TO THE SELLER:
Communication Network Services, L.L.C.
ImageWare Technologies, L.L.C.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇, Manager
COPY TO:
▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
IF TO THE BUYER:
Rocky Mountain Internet, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chairman & CEO
COPY TO:
Rocky Mountain Internet, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Holland & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇
Any Party may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the address set forth
above using any other means (including personal delivery, expedited courier,
messenger service, telecopy, telex, ordinary mail, or electronic mail), but
no such notice, request, demand, claim, or other communication shall be
deemed to have been duly given unless and until it actually is received by
the intended recipient. Any Party may change the address to which notices,
requests, demands, claims, and other communications hereunder are to be
delivered by giving the other Party notice in the manner herein set forth.
(h) SELLER MEMBERS' REPRESENTATIVE. ▇▇▇▇ ▇. ▇▇▇▇ (the "Seller Members'
Representative") is hereby authorized by the Seller Members to receive all
notices and certificates provided for in this Agreement, and is authorized to
communicate with the Escrow Agent and the Buyer on behalf of the Seller
Members.
(i) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Colorado without giving
effect to any choice or conflict of law provision or rule (whether of the
State of Colorado or any other jurisdiction) that would cause the application
of the laws of any jurisdiction other than the State of Colorado.
(j) ARBITRATION. The Parties hereby covenant and agree that, except as
otherwise set forth in this Agreement, any suit, dispute, claim, demand,
controversy or cause of action of every kind and nature whatsoever, known or
unknown, fixed or contingent, that the Parties may now have or at any time in
the future claim to have based in whole or in part, or arising from or that
in any way is related to the negotiations, execution, interpretation or
enforcement of this Agreement (collectively, the "Disputes") shall be
completely and finally settled by submission of any such Disputes to
arbitration under the Rules of Arbitration and Conciliation of the American
Arbitration Association then in effect. If the Parties to the Dispute are
unable to agree on a single arbitrator, then such binding arbitration shall
be conducted before a panel of three (3) arbitrators that shall be comprised
of one (1) arbitrator designated by each Party to the Dispute and a third
arbitrator designated by the two (2) arbitrators selected by the Parties to
the Dispute. Unless the Parties to the Dispute agree otherwise, the
arbitration proceedings shall take place in Denver, Colorado and the
arbitrator(s) shall apply the law of the State of Colorado, USA, to all
issues in dispute, in accordance with Section 10(i). The findings of the
arbitrator(s) shall be final and binding on the Parties to the Dispute.
Judgment on such award may be entered in any court of appropriate
jurisdiction, or application may be made to that court for a judicial
acceptance of the award and an order of enforcement, as the party seeking to
enforce that award may elect. Notwithstanding any applicable rules of
arbitration, all arbitral awards shall be in writing and shall set forth in
particularity the findings of fact and conclusions of law of the arbitrator
or
35
arbitrators. If the Buyer makes any claim based upon the alleged intentional
fraud or willful misconduct of the Seller or the Seller Members and such
claim is not found by the arbitrator(s) to be valid or proven, the Buyer
shall pay the costs of the Seller or such Seller Member(s) incurred in
connection with such arbitration proceeding (including reasonable attorneys
fees).
(k) AMENDMENTS AND WAIVERS. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by
the Buyer and the Seller. The Seller may consent to any such amendment at any
time prior to the Closing with the prior authorization of its board of
managers; PROVIDED, HOWEVER, that any amendment effected after the Seller
Management Members have approved this Agreement will be subject to the
restrictions contained in the Delaware General Corporation Law. No waiver by
any Party of any default, misrepresentation, or breach of warranty or
covenant hereunder, whether intentional or not, shall be deemed to extend to
any prior or subsequent default, misrepresentation, or breach of warranty or
covenant hereunder or affect in any way any rights arising by virtue of any
prior or subsequent such occurrence.
(l) SEVERABILITY. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or provision
in any other situation or in any other jurisdiction.
(m) EXPENSES. Each of the Buyer, the Seller, and the Seller Management
Members will bear his or its own costs and expenses (including legal fees and
expenses) incurred in connection with this Agreement and the transactions
contemplated hereby. The Seller agrees that it has not paid any amount to
any third party, and will not pay any amount to any third party until after
the Closing, with respect to any of the costs and expenses of the Seller and
the Seller Management Members (including any of their legal fees and
expenses) in connection with this Agreement or any of the transactions
contemplated hereby.
(n) CONSTRUCTION. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be
construed as if drafted jointly by the Parties and no presumption or burden
of proof shall arise favoring or disfavoring any Party by virtue of the
authorship of any of the provisions of this Agreement. Any reference to any
federal, state, local, or foreign statute or law shall be deemed also to
refer to all rules and regulations promulgated thereunder, unless the context
requires otherwise. The word "including" shall mean including without
limitation. Nothing in the Disclosure Schedule shall be deemed adequate to
disclose an exception to a representation or warranty made herein unless the
Disclosure Schedule identifies the exception with reasonable particularity
and describes the relevant facts in reasonable detail. Without limiting the
generality of the foregoing, the mere listing (or inclusion of a copy) of a
document or other item shall not be deemed adequate to disclose an exception
to a representation or warranty made herein (unless the representation or
warranty has to do with the existence of the document or other item itself).
The Parties intend that each representation, warranty, and covenant contained
herein shall have independent significance. If any Party has breached any
representation, warranty, or covenant contained herein in any respect, the
fact that there exists another representation, warranty, or covenant relating
to the same subject matter (regardless of the relative levels of specificity)
which the Party has not breached shall not
36
detract from or mitigate the fact that the Party is in breach of the first
representation, warranty, or covenant.
(o) INCORPORATION OF EXHIBITS AND SCHEDULES. The Exhibits and Schedules
identified in this Agreement are incorporated herein by reference and made a
part hereof.
(p) SPECIFIC PERFORMANCE. Each of the Parties acknowledges and agrees that
the other Party would be damaged irreparably in the event any of the provisions
of this Agreement are not performed in accordance with their specific terms or
otherwise are breached. Accordingly, each of the Parties agrees that the other
Party shall be entitled to an injunction or injunctions to prevent breaches of
the provisions of this Agreement and to enforce specifically this Agreement and
the terms and provisions hereof in any action instituted in any court of the
United States or any state thereof having jurisdiction over the Parties and the
matter (subject to the provisions set forth in Section 10(j) above), in addition
to any other remedy to which it may be entitled, at law or in equity.
*****
37
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the date first above written.
ROCKY MOUNTAIN INTERNET, INC.
By:
--------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman & CEO
COMMUNICATION NETWORK SERVICES, L.L.C.
By:
--------------------------
Title:
-----------------------
IMAGEWARE TECHNOLOGIES, L.L.C.
By:
--------------------------
Title:
-----------------------
AGREED TO AND ACCEPTED BY THE SELLER MANAGEMENT MEMBERS AS OF THE DATE FIRST
ABOVE WRITTEN:
-----------------------------
▇▇▇▇ ▇. ▇▇▇▇
-----------------------------
J. ▇▇▇▇▇ ▇▇▇▇
-----------------------------
H. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
38
