EXHIBIT 2.13
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AGREEMENT AND PLAN OF ORGANIZATION
dated as of March 11, 1998
by and among
VACATION PROPERTIES INTERNATIONAL, INC.
WHISTLER CHALETS HOLDING CORP.
(a subsidiary of Vacation Properties International, Inc.)
WHISTLER CHALETS LIMITED
and
the STOCKHOLDERS named herein
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TABLE OF CONTENTS
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Page
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AGREEMENT AND PLAN OF ORGANIZATION............................................1
1. THE PURCHASE AND SALE.....................................................3
1.1 General...............................................................3
1.2 Intentionally Deleted.................................................3
1.3 Intetionally Deleted..................................................3
1.4 Certain Information With Respect to the Capital Stock
of the COMPANY, VPI and NEWCO........................................3
2. NEWCO STOCK...............................................................3
2.1 Capitalization of NEWCO...............................................3
2.2 Rights and Obligations of VPI.........................................4
2.3 Voting Rights.........................................................9
3. DELIVERY OF CONSIDERATION FOR STOCK PURCHASE..............................9
3.1 Delivery of Dividend Access Shares and Cash...........................9
3.2 Delivery of COMPANY Stock.............................................9
3.3 Balance Sheet Test...................................................10
4. CLOSING..................................................................10
5. REPRESENTATIONS AND WARRANTIES OF COMPANY AND STOCKHOLDERS...............11
(A) Representations and Warranties of COMPANY and STOCKHOLDERS...........11
5.1 Due Organization..................................................12
5.2 Authority.........................................................13
5.3 Capital Stock of the COMPANY......................................13
5.4 Transactions in Capital Stock.....................................13
5.5 No Bonus Shares...................................................14
5.6 Subsidiaries......................................................14
5.7 Predecessor Status; etc...........................................14
5.8 Spin-off by the COMPANY...........................................14
5.9 Financial Statements..............................................14
5.10 Liabilities and Obligations......................................15
5.11 Accounts and Notes Receivable....................................16
5.12 Permits and Intangibles..........................................16
5.13 Environmental Matters............................................17
5.14 Personal Property................................................18
5.15 Significant Customers............................................19
5.16 Material Contracts and Commitments...............................19
5.17 Real Property....................................................20
5.18 Insurance........................................................21
5.19 Compensation; Employment Agreements; Organized Labor Matters.....21
5.20 Employee Plans...................................................23
5.21 Compliance with Laws Governing Pension and Other Benefit Plans...25
5.22 Conformity with Law; Litigation..................................28
5.23 Taxes............................................................28
5.24 No Violations....................................................30
5.25 Government Contracts.............................................31
5.26 Absence of Changes...............................................31
5.27 Deposit Accounts; Powers of Attorney.............................33
5.28 Validity of Obligations..........................................33
5.29 Relations with Governments.......................................34
5.30 Disclosure.......................................................34
5.31 Prohibited Activities............................................35
(B) Representations and Warranties of STOCKHOLDERS.......................35
5.32 Authority; Ownership.............................................35
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5.33 Preemptive Rights...................................................35
5.34 Resident Status ....................................................35
6. REPRESENTATIONS OF VPI AND NEWCO..........................................36
6.1 Due Organization.....................................................36
6.2 Authorization........................................................37
6.3 Capital Stock of VPI and NEWCO.......................................37
6.4 Transactions in Capital Stock........................................37
6.5 Subsidiaries.........................................................38
6.6 Financial Statements.................................................38
6.7 Liabilities and Obligations..........................................38
6.8 Conformity with Law; Litigation......................................38
6.9 No Violations........................................................39
6.10 Validity of Obligations.............................................39
6.11 Restricted Common Stock.............................................40
6.12 No Side Agreements..................................................40
6.13 Business; Real Property; Material Agreements........................40
6.14 Taxes...............................................................41
6.15 Completion of Due Diligence.........................................43
6.16 Disclosure.........................................................43
7. COVENANTS PRIOR TO CLOSING...............................................43
7.1 Access and Cooperation; Due Diligence................................43
7.2 Conduct of Business Pending Closing..................................44
7.3 Prohibited Activities................................................45
7.4 No Shop..............................................................47
7.5 Notice to Bargaining Agents..........................................48
7.6 Agreements...........................................................48
7.7 Notification of Certain Matters......................................48
7.8 Amendment of Schedules...............................................49
7.9 Cooperation in Preparation of Registration Statement.................50
7.10 Final Financial Statements..........................................51
7.11 Further Assurances..................................................52
7.12 Authorized Capital..................................................52
7.13 Best Efforts to Consummate Transaction..............................52
7.14 Section 85 Elections................................................53
7.15 British Columbia Securities Consents................................53
8. CONDITIONS PRECEDENT TO OBLIGATIONS OF STOCKHOLDERS AND COMPANY..........53
8.1 Representations and Warranties.......................................53
8.2 Performance of Obligations...........................................54
8.3 No Litigation........................................................54
8.4 Opinion of Counsel...................................................54
8.5 Registration Statement...............................................54
8.6 Consents and Approvals...............................................54
8.7 Good Standing Certificates...........................................55
8.8 No Material Adverse Change...........................................55
8.9 Closing of IPO.......................................................55
8.10 Secretary's Certificate.............................................55
8.11 Employment Agreements...............................................55
8.12 Directors and Officers Insurance....................................56
8.13 Stock Options.......................................................56
8.14 Support Agreement and Trust Agreement...............................56
9. CONDITIONS PRECEDENT TO OBLIGATIONS OF VPI AND NEWCO.....................56
9.1 Representations and Warranties.......................................56
9.2 Performance of Obligations...........................................57
9.3 No Litigation........................................................57
9.4 Secretary's Certificate..............................................57
9.5 No Material Adverse Effect...........................................57
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9.6 STOCKHOLDERS' Release................................................58
9.7 Termination of Related Party Agreements..............................58
9.8 Opinion of Counsel...................................................58
9.9 Consents and Approvals...............................................58
9.10 Good Standing Certificates..........................................58
9.11 Registration Statement..............................................59
9.12 Employment Agreements...............................................59
9.13 Closing of IPO......................................................59
9.14 FIRPTA Certificate..................................................59
9.15 Insurance...........................................................59
9.16 Lockup Agreement....................................................59
10. COVENANTS OF VPI AND THE STOCKHOLDERS AFTER CLOSING.....................60
10.1 Release From Guarantees; Repayment of Certain Obligations...........60
10.2 Intentionally Deleted...............................................60
10.3 Preparation and Filing of Tax Returns...............................60
10.4 Appointment of Directors............................................61
10.5 Preservation of Employee Benefit Plans..............................61
10.6 Maintenance of Books................................................62
10.7 Liquidation.........................................................62
11. INDEMNIFICATION.........................................................62
11.1 General Indemnification by the STOCKHOLDERS.........................62
11.2 Indemnification by VPI..............................................63
11.3 Third Person Claims.................................................64
11.4 Exclusive Remedy....................................................66
11.5 Limitations on Indemnification......................................66
12. TERMINATION OF AGREEMENT................................................67
12.1 Termination.........................................................67
12.2 Liabilities in Event of Termination.................................68
13. NONCOMPETITION..........................................................69
13.1 Prohibited Activities...............................................69
13.2 Damages.............................................................70
13.3 Reasonable Restraint................................................71
13.4 Severability; Reformation...........................................71
13.5 Independent Covenant................................................72
13.6 Materiality.........................................................72
13.7 Limitation..........................................................72
14. NONDISCLOSURE OF CONFIDENTIAL INFORMATION...............................73
14.1 STOCKHOLDERS........................................................73
14.2 VPI AND NEWCO.......................................................74
14.3 Damages.............................................................74
14.4 Survival............................................................75
14.5 Return of Data Submitted............................................75
15. TRANSFER RESTRICTIONS...................................................75
15.1 Transfer Restrictions...............................................75
15.2 Certain Transfers...................................................76
16. SECURITIES LAW REPRESENTATIONS..........................................76
16.1 Compliance with Law.................................................77
16.2 Economic Risk; Sophistication.......................................78
17. REGISTRATION RIGHTS.....................................................78
17.1 Piggyback Registration Rights.......................................78
17.2 Demand Registration Rights..........................................79
17.3 Registration Procedures.............................................80
17.4 Underwriting Agreement..............................................81
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17.5 Availability of Rule 144............................................81
17.6 Registration Rights Indemnification.................................81
18. GENERAL.................................................................86
18.1 Press Releases......................................................86
18.2 Cooperation.........................................................87
18.3 Successors and Assigns; Third Party Beneficiaries...................87
18.4 Entire Agreement....................................................87
18.5 Counterparts........................................................88
18.6 Brokers and Agents..................................................88
18.7 Expenses............................................................88
18.8 Notices.............................................................89
18.9 Governing Law.......................................................90
18.10 Exercise of Rights and Remedies....................................90
18.11 Time...............................................................90
18.12 Reformation and Severability.......................................90
18.13 Remedies Cumulative................................................90
18.14 Captions...........................................................91
18.15 Amendments and Waivers.............................................91
18.16 Incorporation by Reference.........................................91
18.17 Defined Terms......................................................91
ANNEX I EXHIBIT A - DIVIDEND ACCESS SHARE PROVISIONS
ANNEX I EXHIBIT B - SUPPORT AGREEMENT
ANNEX I EXHIBIT C - EXCHANGE AND VOTING TRUST AGREEMENT
ANNEX II CERTIFICATE OF INCORPORATION AND BYLAWS OF VPI AND NEWCO
ANNEX III CONSIDERATION TO BE PAID TO STOCKHOLDERS
ANNEX IV STOCKHOLDERS AND STOCK OWNERSHIP OF THE COMPANY
ANNEX V STOCKHOLDERS AND STOCK OWNERSHIP OF VPI
ANNEX VI FORM OF OPINION OF COUNSEL TO VPI
ANNEX VII FORM OF OPINION OF COUNSEL TO COMPANY AND STOCKHOLDERS
ANNEX VIII FORM OF EMPLOYMENT AGREEMENT
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AGREEMENT AND PLAN OF ORGANIZATION
THIS AGREEMENT AND PLAN OF ORGANIZATION (the "Agreement") is made as of
March 11, 1998, by and among VACATION PROPERTIES INTERNATIONAL, INC., a Delaware
corporation ("VPI"), WHISTLER HOLDING CORP., a Canadian corporation ("NEWCO"),
WHISTLER CHALETS LIMITED, a British Columbia corporation (the "COMPANY"), and J.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (the "STOCKHOLDERS").
WHEREAS, NEWCO is a corporation duly organized and existing under the
laws of Canada, having been incorporated on March [____], 1998, for the
purpose of completing the transactions set forth herein, and is a
wholly-owned subsidiary of VPI;
WHEREAS, the respective Boards of Directors of NEWCO and the COMPANY
(which together are hereinafter collectively referred to as the
"Constituent Corporations") deem it advisable and in the best interests of
the Constituent Corporations and their respective stockholders that the
STOCKHOLDERS sell all of the COMPANY Stock owned by the STOCKHOLDERS to
NEWCO in exchange for cash and Dividend Access Shares of NEWCO pursuant to
this Agreement and the applicable provisions of the laws of the
jurisdictions in which NEWCO and the COMPANY are incorporated;
WHEREAS, VPI is entering into other separate agreements substantially
similar to this Agreement (the "Other Agreements"), each of which is
entitled "Agreement and Plan of Organization," with each of B&B On The
Beach, Inc., a North Carolina corporation, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Realty &
Development, Inc., a North Carolina corporation, Coastal Resorts Realty
L.L.C., a Delaware limited liability company, Coastal Resorts Management,
Inc., a Delaware corporation, Collection of Fine Properties, Inc., a
Colorado corporation, Ten Mile Holdings, Ltd., a Colorado corporation,
First Resort Software, Inc., a Colorado corporation, Hotel Corporation of
the Pacific, Inc., a Hawaii corporation, Houston and ▇'▇▇▇▇▇ Company, a
Colorado corporation, Jupiter Property
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Management at Park City, Inc., a Utah corporation, Maui Condominium & Home
Realty, Inc., a Hawaii corporation, The Maury People, Inc., a Massachusetts
corporation, ▇▇▇▇▇ Acquisition, Inc., a Florida corporation, Realty
Consultants, Inc., a Florida corporation, Resort Property Management, Inc.,
a Utah corporation, Telluride Resort Accommodations, Inc., a Colorado
corporation, and ▇▇▇▇▇-▇▇▇▇▇▇▇ Enterprises, Inc., a Georgia corporation,
THE Management Company, a Georgia corporation, and their respective
stockholders in order to acquire additional businesses (the COMPANY,
together with each of the entities with which VPI has entered into the
Other Agreements, are collectively referred to herein as the "Founding
Companies");
WHEREAS, this Agreement, the Other Agreements and the IPO of VPI Stock
constitute the "VPI Plan of Organization;"
WHEREAS, the STOCKHOLDERS and the Boards of Directors and the
stockholders of VPI, each of the Other Founding Companies and each of the
subsidiaries of VPI that are parties to the Other Agreements intend to
consummate the VPI Plan of Organization as an integrated plan pursuant to
which the STOCKHOLDERS and the stockholders of the Other Founding Companies
shall transfer the capital stock of the Founding Companies to VPI or a
subsidiary of VPI, and the STOCKHOLDERS and the public will acquire the
stock of VPI as an exchange pursuant to which gain is not recognized under
Section 351(a) of the Code; and
WHEREAS, in consideration of the agreements of the Other Founding
Companies pursuant to the Other Agreements, the Board of Directors of the
COMPANY has approved this Agreement as part of the VPI Plan of Organization
in order to transfer the capital stock of the COMPANY to VPI;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements, representations, warranties, provisions and covenants herein
contained, the parties hereto hereby agree as follows:
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1. THE PURCHASE AND SALE
1.1 GENERAL. Upon the terms and subject to the conditions of this
Agreement, the STOCKHOLDERS hereby agree to sell, assign, transfer and deliver
to NEWCO, and NEWCO hereby agrees to purchase, all of the outstanding capital
stock of the COMPANY (the "COMPANY Stock").
1.2 INTENTIONALLY DELETED.
1.3 INTENTIONALLY DELETED.
1.4 CERTAIN INFORMATION WITH RESPECT TO THE CAPITAL STOCK OF THE COMPANY,
VPI AND NEWCO. The respective designations and numbers of outstanding shares and
voting rights of each class of outstanding capital stock of the COMPANY, VPI and
NEWCO as of the date of this Agreement are as follows:
(i) as of the date of this Agreement, the authorized and outstanding
capital stock of the COMPANY is as set forth on Schedule 1.4 hereto;
(ii) immediately prior to the Closing Date, the authorized capital
stock of VPI will consist of 50,000,000 shares of VPI Stock, of which the
number of issued and outstanding shares will be as set forth in the
Registration Statement, and 10,000,000 shares of preferred stock, $.01 par
value, of which no shares will be issued and outstanding; and
(iii) as of the date of this Agreement, the authorized capital stock
of NEWCO consists of an unlimited number shares of NEWCO stock, of which
ten (10) shares are issued and outstanding.
2. NEWCO STOCK
Prior to the Pre-Closing Date, the Articles of Incorporation of NEWCO,
shall be amended to provide for authorized capital consisting of (i) a class of
an unlimited number of voting common shares (all of the issued and outstanding
shares of which shall be held by VPI) and (ii) a class of non-voting capital
shares ("Dividend Access Shares") having the rights, privileges, restrictions
and conditions set forth on Exhibit A of Annex I hereto (the "Dividend Access
Share Provisions"). Each share of the Dividend Access Shares shall (x) entitle
the holder thereof (the "Holder") to dividend rights equal, after conversion
into Canadian dollars
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based on the Canadian/U.S. exchange rate in effect on the record date thereof,
to the per share dividend rights of VPI Stock; (y) subject to the "Liquidation
Call Right" (as defined in Section 2.2(i) hereof), entitle the Holder, on a
liquidation of NEWCO, to receive in exchange for each Dividend Access Share one
(1) share of VPI Stock as provided in Section 2.1(i)(a) for a period ending on
the twentieth (20th) anniversary of the Closing Date; (z) subject to the
"Retraction Call Right" (as defined in Section 6.1(c) of the Dividend Access
Share Provisions), entitle the Holder, at his election from time to time for a
period ending on the twentieth (20th) anniversary of the Closing Date, upon
thirty (30) days' written notice given by such Holder to NEWCO, to require NEWCO
to redeem any or all Dividend Access Shares and to exchange therefor, on a share
for share basis, shares of VPI Stock (the "Right of Retraction").
2.2 RIGHTS AND OBLIGATIONS OF VPI.
(i) VPI LIQUIDATION CALL RIGHT.
(a) Subject to Section 10.7, VPI shall have the overriding right (the
"Liquidation Call Right"), in the event of and notwithstanding the proposed
liquidation, dissolution or winding up of NEWCO pursuant to Article 5 of the
Dividend Access Share Provisions, to purchase all but not less than all of the
Dividend Access Shares held by each such Holder on payment by VPI to each such
Holder of an amount per Dividend Access Share as set forth in section 5.1 of the
Dividend Access Share Provisions (the "Liquidation Call Purchase Price");
provided, however, that if the record date for any such declared and unpaid
dividends occurs on or after the Liquidation Date, the
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Liquidation Call Purchase Price shall not include such additional amount
equivalent to such dividends. In the event of the exercise of the Liquidation
Call Right by VPI, each Holder shall be obligated to sell all of the Dividend
Access Shares held by such Holder to VPI on the Liquidation Date on payment by
VPI to the Holder of the Liquidation Call Purchase Price for each such Dividend
Access Share.
(b) To exercise the Liquidation Call Right, VPI must notify NEWCO and the
Holders of VPI's intention to exercise such right at least sixty (60) days
before the Liquidation Date in the case of a voluntary liquidation, dissolution
or winding up of NEWCO, or at least five (5) Business Days before the
Liquidation Date in the case of an involuntary liquidation, dissolution or
winding up of NEWCO. NEWCO will notify the Holders as to whether or not VPI has
exercised the Liquidation Call Right as soon as practicable after the end of the
period during which the Liquidation Call Right may be exercised by VPI. If VPI
exercises the Liquidation Call Right, on the Liquidation Date VPI will purchase
and the Holders will sell all of the Dividend Access Shares then outstanding for
a price per Dividend Access Share equal to the Liquidation Call Purchase Price.
(c) For purposes of completing the purchase of the Dividend Access Shares
pursuant to the Liquidation Call Right, VPI shall deposit with NEWCO or an
authorized agent or shall hold on behalf of NEWCO, on or before the Liquidation
Date, certificates representing the aggregate number of shares of VPI Stock
deliverable by VPI in payment of the total Liquidation Call Purchase Price and a
cheque or cheques in the amount of the remaining portion, if any, of the total
Liquidation Call Purchase Price. Provided that the total Liquidation Call
Purchase Price has been so deposited with NEWCO or an authorized agent or held
on behalf of NEWCO, on and after the Liquidation Date the rights of each Holder
of Dividend Access Shares will be limited to receiving such Holder's
proportionate part of the total Liquidation Call Purchase Price payable by VPI
upon presentation and surrender by the Holder of certificates representing the
Dividend Access Shares held by such Holder and the Holder shall on and after the
Liquidation Date be considered and deemed for all purposes to be the Holder of
the VPI Stock delivered to such Holder. Upon surrender to NEWCO or an authorized
agent of a certificate or certificates representing Dividend Access Shares,
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together with such other documents and instruments as may be required to effect
a transfer of Dividend Access Shares under the Canada Business Corporation Act
("CBCA") and the by-laws of NEWCO and such additional documents and instruments
as NEWCO or an authorized agent may reasonably require, the Holder of such
surrendered certificate or certificates shall be entitled to receive in exchange
therefor, and VPI or NEWCO on behalf of VPI or an authorized agent of VPI shall
deliver to such Holder, certificates representing the VPI Stock to which the
Holder is entitled and a cheque or cheques of VPI payable at par and in Canadian
dollars at any branch of the bankers of VPI or NEWCO in Canada in payment of the
remaining portion, if any, of the total Liquidation Call Purchase Price. If VPI
does not exercise the Liquidation Call Right in the manner described above, on
the Liquidation Date the Holders of the Dividend Access Shares will be entitled
to receive in exchange therefor the liquidation price otherwise payable by NEWCO
in connection with the liquidation, dissolution or winding up of NEWCO pursuant
to Article 5 of the Dividend Access Share Provisions.
(ii) VPI REDEMPTION CALL RIGHT.
(a) Subject to the "Automatic Redemption Date" (as defined in Section 1.1
of the Dividend Access Share Provisions), VPI shall have the overriding right
(the "Redemption Call Right"), notwithstanding the proposed redemption of
Dividend Access Shares by NEWCO pursuant to Article 7 of the Dividend Access
Share Provisions, to purchase from all but not less than all of the Holders of
Dividend Access Shares to be redeemed on the "Redemption Date" (as defined in
Section 7.2 of the Dividend Access Share Provisions) all but not less than all
of the Dividend Access Shares held by each such Holder that are otherwise to be
redeemed on payment by VPI to each such Holder of an amount per such Dividend
Access Share equal to (x) the Current Market Price of one (1) share of VPI Stock
on the last Business Day prior to the Redemption Date which shall be satisfied
in full by causing to be delivered to such Holder one (1) share of VPI Stock,
plus (y) an additional amount equivalent to the full amount of all dividends
declared and unpaid on such Dividend Access Share and all dividends declared on
Restricted Common Stock that have not been declared on such Dividend Access
Share in accordance with Section 7.1 of the Dividend Access Share Provisions
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(collectively, the "Redemption Call Purchase Price"); provided, however, that if
the record date for any such declared and unpaid dividends occurs on or after
the Redemption Date, the Redemption Call Purchase Price shall not include such
additional amount equivalent to such dividends. In the event of the exercise of
the Redemption Call Right by VPI, each Holder shall be obligated to sell all the
Dividend Access Shares held by such Holder and otherwise to be redeemed to VPI
on the Redemption Date on payment by VPI to the Holder of the Redemption Call
Purchase Price for each such Dividend Access Share.
(b) To exercise the Redemption Call Right, VPI must notify NEWCO and the
Holders or an authorized agent of VPI's intention to exercise such right at
least one hundred twenty-five (125) days before the Automatic Redemption Date
(as defined in Section 1.1 of the Dividend Access Share Provisions), in the case
of the "Automatic Redemption" (as defined in Section 7.1 of the Dividend Access
Share Provisions), or at least thirty-five (35) days before a "Section 12(g)
Redemption Date" (as defined in Section 7.2 of the Dividend Access Share
Provisions) in the case of a "Section 12(g) Redemption" (as defined in Section
7.1 of the Dividend Access Share Provisions). NEWCO or an authorized agent will
notify the Holders of Dividend Access Shares as to whether or not VPI has
exercised the Redemption Call Right as soon as practicable after the end of the
period during which the same may be exercised by VPI. If VPI exercises the
Redemption Call Right, on the Redemption Date VPI will purchase and the Holders
will sell all of the Dividend Access Shares to be redeemed for a price per
Dividend Access Share equal to the Redemption Call Purchase Price.
(c) For purposes of completing the purchase of Dividend Access Shares
pursuant to the Redemption Call Right, VPI shall deposit with NEWCO or an
authorized agent of NEWCO or will hold on behalf of NEWCO, on or before the
Redemption Date, certificates representing the aggregate number of shares of VPI
Stock deliverable by VPI in payment of the total Redemption Call Purchase Price
and a cheque or cheques in the amount of the remaining portion, if any, of the
total Redemption Call Purchase Price. Provided that the total Redemption Call
Purchase Price has been so deposited with NEWCO or an authorized agent or held
on behalf of NEWCO, on and after
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the Redemption Date the rights of each Holder of Dividend Access Shares so
purchased will be limited to receiving such Holder's proportionate part of the
total Redemption Call Purchase Price payable by VPI upon presentation and
surrender by the Holder of certificates representing the Dividend Access Shares
or held by such Holder and the Holder shall on and after the Redemption Date be
considered and deemed for all purposes to be the Holder of the VPI Stock
delivered to such Holder. Upon surrender to NEWCO of a certificate or
certificates representing Dividend Access Shares, together with such other
documents and instruments as may be required to effect a transfer of Dividend
Access Shares under the CBCA and the by-laws of NEWCO and such additional
documents and instruments as NEWCO may reasonably require, the Holder of such
surrendered certificate or certificates shall be entitled to receive in exchange
therefor, and VPI or NEWCO on behalf of VPI or an authorized agent of VPI shall
deliver to such Holder, certificates representing the VPI Stock to which the
Holder is entitled and a cheque or cheques of VPI payable at par and in Canadian
dollars at any branch of the bankers of VPI or NEWCO in Canada in payment of the
remaining portion, if any, of the total Redemption Call Purchase Price. If VPI
does not exercise the Redemption Call Right in the manner described above, on
the Redemption Date the Holders of the Dividend Access Shares will be entitled
to receive in exchange therefor the redemption price otherwise payable by NEWCO
in connection with the redemption of Dividend Access Shares pursuant to Article
7 of the Dividend Access Share Provisions.
(iii) WITHHOLDING RIGHTS. VPI and NEWCO shall be entitled to deduct and
withhold from the consideration otherwise payable to any Holder of Dividend
Access Shares, including any dividend payments in respect of the Dividend Access
Shares, such amount as VPI or NEWCO is required or permitted to deduct and
withhold with respect to such payment under the Code, the Income Tax Act
(Canada) or any provision of state, provincial, local or foreign tax law. VPI
and NEWCO shall not initially withhold any United States Tax on dividends paid
on the Dividend Access Shares. However, if any United States taxing authority
determines that VPI or NEWCO is liable for United States withholding Tax on
dividends paid to the Holders on the Dividend Access Shares, NEWCO shall be
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entitled to reduce the amount of any future dividends to be paid to the Holders
by such withholding obligation. To the extent that amounts are so withheld, such
withheld amounts shall be treated for all purposes hereof as having been paid to
the Holder of Dividend Access Shares in respect of which such deduction and
withholding was made; provided, however, that such withheld amounts are actually
remitted to the appropriate taxing authority. To the extent that the amount so
required or permitted to be deducted or withheld from any payment to a Holder
exceeds the cash portion of the consideration otherwise payable to the Holders,
VPI upon at least ten (10) days' prior written notice to such Holder, is hereby
authorized to sell or otherwise dispose of at fair market value such portion of
such non-cash consideration otherwise payable to the Holder as is necessary to
provide sufficient funds to VPI in order to enable it to comply with such
deduction or withholding requirement and VPI shall give an accounting to the
Holder with respect thereof and any balance of such proceeds of sale.
2.3 VOTING RIGHTS. Prior to the Closing Date, VPI shall provide voting
rights to the Holders, whereby each Holder will be entitled to the same rights
and privileges regarding the voting of his Dividend Access Shares as if each
Holder held the equivalent number of shares of VPI Stock.
3. DELIVERY OF CONSIDERATION FOR STOCK PURCHASE
3.1 DELIVERY OF DIVIDEND ACCESS SHARES AND CASH. On the Closing Date, the
STOCKHOLDERS, who are the holders of all outstanding certificates representing
shares of COMPANY Stock, shall, upon surrender of such certificates, receive the
respective number of Dividend Access Shares and the amount of cash (subject to
adjustment pursuant to Section 3.3) set forth on Annex III hereto, said cash to
be payable by certified cheque or wire transfer.
3.2 DELIVERY OF COMPANY STOCK. The STOCKHOLDERS shall deliver to NEWCO at
the Pre-Closing (subject to Section 4) the certificates representing COMPANY
Stock, duly endorsed in blank by the STOCKHOLDERS, or accompanied by blank stock
powers, and with all necessary
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transfer tax and other revenue stamps, acquired at the STOCKHOLDERS' expense,
affixed and canceled. The STOCKHOLDERS agree promptly to cure any deficiencies
with respect to the endorsement of the stock certificates or other documents of
conveyance with respect to such COMPANY Stock or with respect to the stock
powers accompanying any COMPANY Stock.
3.3 BALANCE SHEET TEST. As of the Closing Date, the COMPANY shall have (i)
positive net worth (excluding all customer deposits and similar escrow-type
accounts); (ii) positive net working capital (defined as current assets minus
current liabilities, excluding all customer deposits and similar escrow-type
accounts); and (iii) all customer deposit accounts and other similar escrow-type
accounts fully funded in cash or cash equivalents. To the extent that any
condition set forth in clauses (i) through (iii) is not met, the cash portion of
the consideration to be paid to the STOCKHOLDERS pursuant to this Section 3
shall be reduced by the amount required to cure any such failure. Indebtedness
of the COMPANY in excess of the amount set forth on Annex III that was incurred
in connection with the acquisition of the COMPANY by the STOCKHOLDERS, or the
acquisition of nonoperating assets by the COMPANY or the STOCKHOLDERS, shall
result in a corresponding dollar-for-dollar reduction in the cash portion of the
consideration paid to the STOCKHOLDERS pursuant to this Section 3. If necessary,
a post-Closing adjustment shall be made to effect the intent of this Section
3.3.
Notwithstanding anything set forth above, VPI acknowledges (i) that the
COMPANY has established a reserve in the amount of $385,000 on its balance sheet
relating to contingent liabilities and (ii) that this reserve shall be deemed to
have not been established (i.e., shall be ignored and not counted) when
conducting the above-referenced balance sheet tests, including positive net
working capital, positive net worth and fully funded customer deposits.
4. CLOSING
At or prior to the Pricing, the parties shall take all actions necessary to
prepare to (i) effect the transfer and delivery of the COMPANY Stock as
contemplated by Section 1 hereof and (ii) effect the delivery of the
consideration referred to in Section 3 hereof; provided, however, that such
actions shall not include the actual completion of the transfer and delivery of
the shares and check(s) referred to in Section 3 hereof, each of which actions
shall only be taken upon the Closing Date as herein provided. The taking of the
actions described in clauses (i) and (ii) above (the "Pre-Closing") shall take
place in escrow on the pre-closing date (the "Pre-Closing Date") at the offices
of Akin, Gump, Strauss,
10
▇▇▇▇▇ & ▇▇▇▇, L.L.P., ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇.
On the Closing Date such escrow shall automatically be terminated and (x) all
transactions contemplated by this Agreement, including the transfer and delivery
of shares, the delivery of a check or checks in an amount equal to the cash
portion of the consideration which the STOCKHOLDERS shall be entitled to receive
pursuant to Section 3 hereof shall occur and (y) the closing with respect to the
IPO shall be completed. The taking of the actions described in the preceding
clauses (x) and (y) shall constitute the closing of the transactions hereunder
(the "Closing"), and the date on which the actions described in the preceding
clauses (x) and (y) occur shall be referred to as the "Closing Date." Except as
provided in Sections 8 and 9 hereof with respect to actions to be taken on the
Closing Date, during the period from the Pre-Closing Date to the Closing Date
this Agreement may only be terminated by a party if the underwriting agreement
in respect of the IPO is terminated pursuant to the terms of such agreement.
This Agreement shall in any event terminate if the Closing Date has not occurred
within 15 business days of the Pre-Closing Date. Upon a termination of this
Agreement pursuant hereto after the Pre-Closing Date but prior to the Closing
Date, all documents delivered into escrow on the Pre-Closing Date shall be
redelivered to the respective parties from whom such documents originated. Time
is of the essence.
5. REPRESENTATIONS AND WARRANTIES OF COMPANY AND STOCKHOLDERS
(A) REPRESENTATIONS AND WARRANTIES OF COMPANY AND STOCKHOLDERS.
Each of the COMPANY and the STOCKHOLDERS jointly and severally represents
and warrants that all of the following representations and warranties in this
Section 5(A) are true at the date of this Agreement and, subject to Section 7.8
hereof, shall be true at the time of Pre-Closing and the Closing Date. Each of
the COMPANY and the STOCKHOLDERS agrees that such representations and warranties
shall survive the Closing Date for a period of two years (the last day of such
period being the "Expiration Date"), except that (i) the warranties and
representations set forth in Section 5.23
11
hereof shall survive until such time as the limitations period has run for all
Tax periods ended on or prior to the Closing Date, which shall be deemed to be
the Expiration Date for Section 5.23 and (ii) solely for purposes of determining
whether a claim for indemnification under Section 11.1(iii) hereof has been made
on a timely basis, and solely to the extent that in connection with the IPO, VPI
actually incurs liability under the 1933 Act, the 1934 Act or any other federal
or state securities laws as a result of a breach of a representation or warranty
by the COMPANY or the STOCKHOLDERS, the representations and warranties set forth
herein shall survive until the expiration of any applicable limitations period,
which shall be deemed to be the Expiration Date for such purposes. For purposes
of this Section 5, the term "COMPANY" shall mean and refer to the COMPANY and
all of its Subsidiaries, if any.
5.1 DUE ORGANIZATION. The COMPANY is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation, and the COMPANY is duly authorized and qualified to do business
under all applicable laws, regulations, ordinances and orders of public
authorities to carry on its business in the places and in the manner as now
conducted except (i) as set forth on Schedule 5.1 or (ii) where the failure to
be so authorized or qualified would not have a material adverse effect on the
business, operations, affairs, properties, assets, condition (financial or
otherwise) or, to the knowledge of the COMPANY or the STOCKHOLDERS, prospects of
the COMPANY taken as a whole (as used herein with respect to the COMPANY, or
with respect to any other person, a "Material Adverse Effect"). Schedule 5.1
sets forth the jurisdiction in which the COMPANY is incorporated and contains a
list of all such jurisdictions in which the COMPANY is authorized or qualified
to do business. True, complete and correct copies of the Memorandum of
Association and Articles of Association, each as amended, of the COMPANY (the
"Charter Documents") are all attached hereto as Schedule 5.1. The stock records
of the COMPANY, as heretofore made available to VPI, are correct and complete in
all material respects. There are no minutes in the possession of the COMPANY or
the STOCKHOLDERS which have not been made available to VPI, and all of such
minutes are correct and complete in all material respects. Except as
12
set forth on Schedule 5.1, the most recent minutes of the COMPANY, which are
dated no earlier than ten business days prior to the date hereof, affirm and
ratify all prior acts of the COMPANY, and of its officers and directors on
behalf of the COMPANY.
5.2 AUTHORITY. The COMPANY has the full legal right, power and authority to
enter into and perform this Agreement and the Merger.
5.3 CAPITAL STOCK OF THE COMPANY. The authorized capital stock of the
COMPANY is as set forth on Schedule 1.4. All of the issued and outstanding
shares of the capital stock of the COMPANY are owned by the STOCKHOLDERS in the
amounts set forth in Annex IV and further, except as set forth on Schedule 5.3,
are owned free and clear of all liens, security interests, pledges, charges,
voting trusts, restrictions, encumbrances and claims of every kind. All of the
issued and outstanding shares of the capital stock of the COMPANY have been duly
authorized and validly issued, are fully paid and nonassessable, are owned of
record and beneficially by the STOCKHOLDERS and further, such shares were
offered, issued, sold and delivered by the COMPANY in compliance with all
applicable provincial and Canadian federal laws concerning the issuance of
securities. Further, none of such shares were issued in violation of the
preemptive rights of any past or present stockholder of the COMPANY.
5.4 TRANSACTIONS IN CAPITAL STOCK. Except as set forth on Schedule 5.4, the
COMPANY has not acquired any COMPANY Stock since January l, 1995. Except as set
forth on Schedule 5.4, (i) no option, warrant, call, conversion right or
commitment of any kind exists which obligates the COMPANY to issue any of its
capital stock; (ii) the COMPANY has no obligation (contingent or otherwise) to
purchase, redeem or otherwise acquire any of its equity securities or any
interests therein or to pay any dividend or make any distribution in respect
thereof; and (iii) neither the voting stock structure of the COMPANY nor the
relative ownership of shares among any of its respective stockholders has been
altered or changed in contemplation of the transactions contemplated hereby
and/or the VPI Plan of Organization. Schedule 5.4 also includes complete and
accurate copies of all stock option or stock purchase plans, including a list of
all outstanding options, warrants or other rights
13
to acquire shares of the COMPANY's stock and the material terms of such
outstanding options, warrants or other rights.
5.5 NO BONUS SHARES. Except as set forth on Schedule 5.5, none of the
shares of COMPANY Stock was issued pursuant to awards, grants or bonuses.
5.6 SUBSIDIARIES. Schedule 5.6 attached hereto lists the name of each of
the COMPANY's subsidiaries, whether a corporation, limited liability company or
other business entity (each, a "Subsidiary"), and sets forth the number and
class of the authorized capital stock of each Subsidiary and the number of
shares or interests of each Subsidiary which are issued and outstanding, all of
which shares (except as set forth on Schedule 5.6) are owned by the COMPANY,
free and clear of all liens, security interests, pledges, voting trusts,
equities, restrictions, encumbrances and claims of every kind. Except as set
forth on Schedule 5.6, the COMPANY does not presently own, of record or
beneficially, or control, directly or indirectly, any capital stock, securities
convertible into capital stock or any other equity interest in any corporation,
association or business entity nor is the COMPANY, directly or indirectly, a
participant in any joint venture, partnership or other non-corporate entity.
5.7 PREDECESSOR STATUS; ETC. Set forth on Schedule 5.7 is a listing of all
names of all predecessor companies of the COMPANY, including the names of any
entities acquired by the COMPANY (by stock purchase, merger or otherwise) or
owned by the COMPANY or from whom the COMPANY previously acquired material
assets. Except as disclosed on Schedule 5.7, the COMPANY has not been a
subsidiary or division of another corporation or a part of an acquisition which
was later rescinded.
5.8 SPIN-OFF BY THE COMPANY. Except as set forth on Schedule 5.8, there has
not been any sale, spin-off or split-up of material assets of the COMPANY since
January 1, 1995.
5.9 FINANCIAL STATEMENTS. Attached hereto as Schedule 5.9 are copies of the
following financial statements (the "COMPANY Financial Statements") of the
COMPANY: the COMPANY's unaudited Comparative Balance Sheet,
14
if any, as of December 31, 1997, 1996 and 1995, Comparative Statements of
Changes in Cash Position and Retained Earnings, if any, and spreadsheets showing
revenues and expenses for the four quarters for each of the years in the
three-year period ended December 31, 1997 (December 31, 1997 being hereinafter
referred to as the "Balance Sheet Date"). Also attached as Schedule 5.9 are
copies of the unaudited Balance Sheets as of April 30, 1997, 1996 and 1995 and
Statements of Earnings, Changes in Cash Position and Retained Earnings for each
of the three fiscal years in the three-year period ended April 30, 1997 (the
"Fiscal Financial Statements"). Except as set forth on Schedule 5.9, such Fiscal
Financial Statements have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis throughout the periods
indicated (except as noted thereon or on Schedule 5.9). Except as set forth on
Schedule 5.9, such Comparative Balance Sheets as of December 31, 1997, 1996 and
1995 and such Balance Sheets as of April 30, 1997, 1996 and 1995 present fairly
the financial position of the COMPANY as of the dates indicated thereon, and
such Comparative Statements of Changes in Cash Position and Retained Earnings,
spreadsheets and Statements of Earnings present fairly the results of operations
for the periods indicated thereon.
5.10 LIABILITIES AND OBLIGATIONS. The COMPANY has delivered to VPI an
accurate list (which is set forth on Schedule 5.10) as of the Balance Sheet Date
of (i) all liabilities of the COMPANY which are not reflected in the COMPANY
Financial Statements at the Balance Sheet Date, (ii) any material liabilities of
the COMPANY (including all liabilities in excess of $10,000) and (iii) all loan
agreements, indemnity or guaranty agreements, bonds, mortgages, liens, pledges
or other security agreements, together with true, correct and complete copies of
such documents. Except as set forth on Schedule 5.10, since the Balance Sheet
Date the COMPANY has not incurred any material liabilities of any kind,
character and description, whether accrued, absolute, secured or unsecured,
contingent or otherwise, other than liabilities incurred in the ordinary course
of business. The COMPANY has also delivered to VPI on Schedule 5.10, in the case
of those contingent liabilities related to pending or, to the knowledge of the
COMPANY, threatened litigation, or other liabilities which are not fixed or are
being contested, the following information:
15
(i) a summary description of the liability together with the
following:
(a) copies of all relevant documentation relating thereto;
(b) amounts claimed and any other action or relief sought; and
(c) name of claimant and all other parties to the claim, suit or
proceeding;
(ii) the name of each court or agency before which such claim, suit or
proceeding is pending;
(iii) the date such claim, suit or proceeding was instituted; and
(iv) a good faith and reasonable estimate of the maximum amount, if
any, which is likely to become payable with respect to each such liability.
If no estimate is provided, the estimate shall for purposes of this
Agreement be deemed to be zero.
5.11 ACCOUNTS AND NOTES RECEIVABLE. The COMPANY has delivered to VPI an
accurate list (which is set forth on Schedule 5.11) of the accounts and notes
receivable of the COMPANY, as of the Balance Sheet Date, including any such
amounts which are not reflected in the balance sheet as of the Balance Sheet
Date, and including receivables from and advances to employees and the
STOCKHOLDERS. The COMPANY shall also provide to VPI (x) an accurate list of all
receivables obtained subsequent to the Balance Sheet Date up to the Pre-Closing
Date and (y) an aging of all accounts and notes receivable showing amounts due
in 30 day aging categories (the "A/R Aging Reports"). Except to the extent
reflected on Schedule 5.11 or as disclosed by the COMPANY to VPI in a writing
accompanying the A/R Aging Reports, the accounts, notes and other receivables
shown on Schedule 5.11 and on the A/R Aging Reports are and shall be collectible
in the amounts shown, net of reserves reflected in the balance sheet as of the
Balance Sheet Date with respect to accounts receivable as of the Balance Sheet
Date, and net of reserves reflected in the books and records of the COMPANY
(consistent with the methods used for the balance sheet) with respect to
accounts receivable of the COMPANY after the Balance Sheet Date.
5.12 PERMITS AND INTANGIBLES. The COMPANY holds all licenses, franchises,
permits and other governmental authorizations that are necessary for the
operation of the business of the
16
COMPANY as now conducted, and the COMPANY has delivered to VPI an accurate list
and summary description (which is set forth on Schedule 5.12) of all such
licenses, franchises, permits and other governmental authorizations, including
permits, titles, licenses, franchises, certificates, trademarks, trade names,
patents, patent applications and copyrights owned or held by the COMPANY
(including interests in software or other technology systems, programs and
intellectual property) (it being understood and agreed that a list of all
environmental permits and other environmental approvals is set forth on Schedule
5.13). The licenses, franchises, permits and other governmental authorizations
listed on Schedules 5.12 and 5.13 are valid, and the COMPANY has not received
any notice that any governmental authority intends to cancel, terminate or not
renew any such license, franchise, permit or other governmental authorization.
Except as set forth on Schedule 5.12, the COMPANY has conducted and is
conducting its business in compliance with the requirements, standards, criteria
and conditions set forth in the licenses, franchises, permits and other
governmental authorizations listed on Schedules 5.12 and 5.13 and is not in
violation of any of the foregoing, except for inadvertent, immaterial
noncompliance with such requirements, standards, criteria and conditions
(provided that any such noncompliance shall be deemed a breach of this Section
5.12 for purposes of Section 11 hereof). Except as specifically provided on
Schedule 5.12, the transactions contemplated by this Agreement will not result
in a default under or a breach or violation of, or adversely affect the rights
and benefits afforded to the COMPANY by, any such licenses, franchises, permits
or government authorizations.
5.13 ENVIRONMENTAL MATTERS. Except as set forth on Schedule 5.13, (i) the
COMPANY has complied with and is in compliance with all federal, provincial,
local and foreign statutes (civil and criminal), laws, ordinances, regulations,
rules, notices, permits, judgments, orders and decrees applicable to any of them
or any of their respective properties, assets, operations and businesses
relating to environmental protection (collectively "Environmental Laws")
including, without limitation, Environmental Laws relating to air, water, land
and the generation, storage, use, handling, transportation, treatment or
disposal of Hazardous Wastes and Hazardous Substances including
17
petroleum and petroleum products (as such terms are defined in any applicable
Environmental Law); (ii) the COMPANY has obtained and adhered to all permits and
other approvals necessary to treat, transport, store, dispose of and otherwise
handle Hazardous Wastes and Hazardous Substances, a list of all of which permits
and approvals is set forth on Schedule 5.13, and has reported to the appropriate
authorities, to the extent required by all Environmental Laws, all past and
present sites owned and operated by the COMPANY where Hazardous Wastes or
Hazardous Substances have been treated, stored, disposed of or otherwise
handled; (iii) there have been no releases or threats of releases (as defined in
Environmental Laws) at, from, in or on any property owned or operated by the
COMPANY except as permitted by Environmental Laws; (iv) the COMPANY knows of no
on-site or off-site location to which the COMPANY has transported or disposed of
Hazardous Wastes and Hazardous Substances or arranged for the transportation of
Hazardous Wastes and Hazardous Substances, which site is the subject of any
federal, state, local or foreign enforcement action or any other investigation
which could lead to any claim against the COMPANY, VPI or NEWCO for any clean-up
cost, remedial work, damage to natural resources, property damage or personal
injury, including, but not limited to, any claim under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended; and
(v) the COMPANY has no contingent liability in connection with any release of
any Hazardous Waste or Hazardous Substance into the environment.
5.14 PERSONAL PROPERTY. The COMPANY has delivered to VPI an accurate list
(which is set forth on Schedule 5.14) of (x) all personal property included in
"depreciable plant, property and equipment" on the balance sheet of the COMPANY
as of the Balance Sheet Date or that will be included on any balance sheet of
the COMPANY prepared after the Balance Sheet Date, (y) all other personal
property (except cash and cash equivalents) owned by the COMPANY with a value in
excess of $10,000 (i) as of the Balance Sheet Date and (ii) acquired since the
Balance Sheet Date and (z) all leases and agreements in respect of personal
property used in the operation of the COMPANY's business as now conducted,
including, true, complete and correct copies of all such leases and agreements.
The COMPANY shall indicate on Schedule 5.14 those assets listed thereon that are
18
currently owned, or that were formerly owned, by STOCKHOLDERS, relatives of
STOCKHOLDERS, or Affiliates of the COMPANY. Except as set forth on Schedule
5.14, (i) all personal property used by the COMPANY in its business is either
owned by the COMPANY or leased by the COMPANY pursuant to a lease included on
Schedule 5.14, (ii) all of the personal property listed on Schedule 5.14 is in
good working order and condition, ordinary wear and tear excepted and (iii) all
leases and agreements included on Schedule 5.14 are in full force and effect
and, assuming due execution and delivery thereof by the parties thereto other
than the COMPANY, the STOCKHOLDERS and their respective Affiliates, constitute
valid and binding agreements of the COMPANY, the STOCKHOLDERS and, to the
knowledge of the COMPANY or the STOCKHOLDERS, the other parties (and their
successors) thereto in accordance with their respective terms.
5.15 SIGNIFICANT CUSTOMERS. The COMPANY has delivered to VPI an accurate
list (which is set forth on Schedule 5.15) of (i) all significant customers, it
being understood and agreed that a "significant customer," for purposes of this
Section 5.15, means a customer (or person or entity) representing 5% or more of
the COMPANY's annual revenues as of the Balance Sheet Date. Except to the extent
set forth on Schedule 5.15, none of the COMPANY's significant customers (or
persons or entities that are sources of a significant number of customers) have
canceled or substantially reduced or, to the knowledge of the COMPANY, are
currently attempting or threatening to cancel a contract or substantially reduce
utilization of the services provided by the COMPANY.
5.16 MATERIAL CONTRACTS AND COMMITMENTS. The COMPANY has listed on Schedule
5.16 all material contracts, commitments and similar agreements to which the
COMPANY currently is a party or by which it or any of its properties are bound
(including, but not limited to, contracts with significant customers, joint
venture or partnership agreements, contracts with any labor organizations,
strategic alliances and options to purchase land), other than contracts,
commitments and agreements otherwise listed on Schedules 5.10, 5.14 or 5.17, (a)
in existence as of the Balance Sheet Date and (b) entered into since the Balance
Sheet Date, and in each case has delivered true, complete and correct
19
copies (or, in the case of oral agreements, summaries of the material terms) of
such agreements to VPI. The COMPANY has complied with all material commitments
and obligations pertaining to it, and is not in default under any contracts or
agreements listed on Schedule 5.16 and no notice of default under any such
contract or agreement has been received. The COMPANY has also indicated on
Schedule 5.16 a summary description of all pending plans or projects involving
the opening of new operations, expansion of existing operations, and the
acquisition of any personal property, business or assets requiring, in any
event, the payment of more than $25,000 by the COMPANY.
5.17 REAL PROPERTY. Schedule 5.17 includes a list of all real property
owned or leased by the COMPANY (i) as of the Balance Sheet Date and (ii)
acquired or leased since the Balance Sheet Date, and all other real property, if
any, used by the COMPANY in the conduct of its business. The COMPANY has good
and insurable title to the real property owned by it, including those reflected
on Schedule 5.14, subject to no mortgage, pledge, lien, conditional sales
agreement, encumbrance or charge, except for:
(i) liens reflected on Schedules 5.10 or 5.17 as securing specified
liabilities (with respect to which no default exists);
(ii) liens for current Taxes not yet payable and assessments not in
default;
(iii) easements for utilities serving the property only; and
(iv) easements, covenants and restrictions and other exceptions to
title shown of record in the office of the County Clerks in which the
properties, assets and leasehold estates are located which do not adversely
affect the current use of the property.
Schedule 5.17 contains, without limitation, true, complete and correct
copies of all title reports and title insurance policies currently in possession
of the COMPANY with respect to real property owned by the COMPANY.
The COMPANY has also delivered to VPI an accurate list of real property
leased by the COMPANY as lessee (which list is set forth on Schedule 5.17),
together with true, complete and correct copies of all leases and agreements in
respect of such real property leased by the COMPANY
20
as lessee (which copies are attached to Schedule 5.17), and an indication as to
which such properties, if any, are currently owned, or were formerly owned, by
STOCKHOLDERS or business or personal affiliates of the COMPANY or STOCKHOLDERS.
Except as set forth on Schedule 5.17, all of such leases included on Schedule
5.17 are in full force and effect and, assuming due execution and delivery
thereof by the parties thereto other than the COMPANY, the STOCKHOLDERS and
their respective affiliates, constitute valid and binding agreements of the
COMPANY, the STOCKHOLDERS and, to the knowledge of the COMPANY or the
STOCKHOLDERS, the other parties (and their successors) thereto in accordance
with their respective terms.
5.18 INSURANCE. The COMPANY has delivered to VPI, as set forth on and
attached to Schedule 5.18, (i) an accurate list as of the Balance Sheet Date of
all insurance policies carried by the COMPANY, (ii) an accurate list of all
insurance loss runs and workers compensation claims received for the past three
(3) policy years and (iii) true, complete and correct copies of all insurance
policies currently in effect. Such insurance policies evidence all of the
insurance that the COMPANY is required to carry pursuant to all of its contracts
and other agreements and pursuant to all applicable laws. All of such insurance
policies are currently in full force and effect and shall remain in full force
and effect through the Closing Date. No insurance carried by the COMPANY has
ever been canceled by the insurer and the COMPANY has never been unable to
obtain insurance coverage for its assets and operations.
5.19 COMPENSATION; EMPLOYMENT AGREEMENTS; ORGANIZED LABOR MATTERS. The
COMPANY has delivered to VPI an accurate list (which is set forth on Schedule
5.19) showing all officers, directors and key employees of the COMPANY, listing
all employment agreements with such officers, directors and key employees and
the rate of compensation (and the portions thereof attributable to salary, bonus
and other compensation, respectively) of each of such persons (i) as of the
Balance Sheet Date and (ii) as of the date hereof. The COMPANY has provided to
VPI true, complete and correct copies of any employment agreements for persons
listed on Schedule 5.19. Except as set forth on Schedule 5.19, since the Balance
Sheet Date, there have been no increases in the
21
compensation payable or any special bonuses to any officer, director, key
employee or other employee, except ordinary salary increases implemented on a
basis consistent with past practices. Except as set forth on Schedule 5.19, no
officer, director, key employee, or other employee is on short-term disability
leave, long-term disability leave, maternity/parental leave or other extended
absence or receiving workers' compensation. All current assessments under the
Workers' Compensation Act (British Columbia) and similar laws in other provinces
in relation to the COMPANY have been paid or accrued and the COMPANY has not
been subject to any special or penalty assessment under such legislation which
has not been paid.
Except for those written employment contracts with salaried employees or
consulting arrangements with former employees identified and fully described in
Schedule 5.19, there are no written contracts of employment or of a consulting
nature entered into with any employees or any oral contracts of employment or of
a consulting nature which are not terminable on the giving of reasonable notice
in accordance with applicable laws or which contain any additional obligations
as a result of the acquisition of COMPANY Stock by the VPI or otherwise.
Schedule 5.19 sets forth a complete list of all collective bargaining
agreements, either directly or by operation of law, with any trade union or
association which may qualify as a trade union.
To the knowledge of the COMPANY (i) there are no outstanding labor tribunal
proceedings of any kind, including any proceedings which could result in
certification of a trade union as bargaining agent for any employees or
dependent contractors of the COMPANY, and there have not been any such
proceedings within the last three years, and (ii) there are no threatened or
apparent union organizing activities involving employees or dependent
contractors of the COMPANY, not already covered by the collective bargaining
agreements.
The COMPANY is not in default under any collective bargaining agreements.
There is no strike or lock out occurring or threatened affecting the COMPANY.
The COMPANY does not have any serious grievances or pending arbitration cases or
other labor problems that might materially or adversely affect its value or lead
to an interruption of its operations at any location.
22
The COMPANY has been and is being operated in full compliance with all laws
relating to employees, including employment standards, human rights,
occupational health and safety, pay equity and employment equity. There have
been no complaints under such laws against the COMPANY.
Except as set forth on Schedule 5.19, there are no complaints nor, to the
knowledge of the COMPANY, are there any threatened complaints, against the
COMPANY, before any employment standards branch or tribunal or human rights
commission or tribunal. To the knowledge of the COMPANY, nothing has occurred
which might lead to a complaint against the COMPANY under any human rights
legislation, employment standards legislation, health and safety legislation,
workers' compensation legislation, or pay equity legislation. There are no
outstanding decisions or settlements or pending settlements under employment
standards, human rights legislation, health and safety legislation, workers'
compensation legislation, pay equity legislation or labor relations legislation
which place any obligation upon the COMPANY to do or refrain from doing any act
or which place a financial obligation on the COMPANY. There have been no
accidents in the last three years of which the COMPANY has received notice or is
otherwise aware which could lead to health and safety claims or charges against
the COMPANY.
The COMPANY (i) is in compliance with all applicable Canadian federal,
provincial and local laws, rules and regulations (domestic or foreign)
respecting employment, employment practices, labor, terms and conditions of
employment and wages and hours; (ii) is not liable for any arrears of wages or
any taxes or any penalty for failure to comply with any of the foregoing; (iii)
is not liable for any payment to any trust or other fund or to any governmental
or administrative authority, with respect to unemployment compensation benefits,
social security or other employment-related benefits; and (iv) has provided
employees with the benefits to which they are entitled pursuant to the terms of
all COMPANY benefit plans.
5.20 EMPLOYEE PLANS. The COMPANY has delivered to VPI an accurate schedule
(Schedule 5.20) showing all plans, arrangements, agreements, programs, policies
or practices, whether oral or written, formal or informal, funded or unfunded,
to or by which the COMPANY is a party or
23
bound or under which the COMPANY has any liability or contingent liability
relating to (a) retirement savings or pensions or compensation, including,
without limitation, any defined benefit pension plan, defined contribution
pension plan, group registered retirement savings plan or supplemental pension
or retirement income plan or (b) any bonus, profit sharing, deferred
compensation, incentive compensation, stock compensation, stock purchase,
hospitalization, health, drug, dental, legal, disability, insurance (including
without limitation unemployment insurance), vacation pay, severance pay or other
benefit plan, arrangement or practice with respect to any of its employees or
former employees, individuals working on contract with it or other individuals
providing services to it of a kind normally provided by employees; and all
statutory plans with which the COMPANY is required to comply (collectively,
"Pension/Benefit Plans").
Current and complete copies of all written Pension/Benefit Plans or, where
oral, written summaries of the material terms thereof, have been made available
to VPI and NEWCO together with current and complete copies of all documents
relating to the Pension/Benefit Plans, including, without limitation, as
applicable, (i) all documents establishing, creating or amending any
Pension/Benefit Plan; (ii) all trust agreements, funding agreements, insurance
contracts and investment management agreements; (iii) all financial statements
and accounting statements and reports, investment reports and actuarial reports
for each of the last seven years; (iv) all reports, returns, filings and
material correspondence with any Governmental Authority in the last seven years;
(v) all booklets, summaries, descriptions or manuals prepared for or circulated
to, and written communications of a general nature to employees concerning any
Pension/Benefit Plan; (vi) all professional opinions (whether or not internally
prepared) with respect to each Pension/Benefit Plan; and (vii) all material
internal memoranda concerning each Pension/Benefit Plan prepared within the last
seven years.
Except as set out and described in Schedule 5.20, there are no employment
policies or plans, including policies or plans regarding incentive compensation,
stock options, severance pay or other terms or conditions of employment or terms
or conditions upon which employees or any individual employee may be terminated,
which are binding upon the COMPANY.
24
All accrued contribution obligations of the COMPANY with respect to any
plan listed on Schedule 5.20 have either been fulfilled in their entirety or are
fully reflected on the balance sheet of the COMPANY as of the Balance Sheet
Date.
5.21 COMPLIANCE WITH LAWS GOVERNING PENSION AND OTHER BENEFIT PLANS. Each
Pension/Benefit Plan is, and has been, established, registered, qualified,
administered and invested, in compliance with the terms thereof, all applicable
laws, all collective bargaining agreements of the COMPANY, any other agreement
(past or present) relating to the benefits provided under one or more of the
Pension/Benefit Plans and all understandings, written or oral, between the
COMPANY and the employees and former employees. The COMPANY and STOCKHOLDERS
further represent that:
(i) no fact or circumstance exists which would adversely affect the
tax-exempt status of any Pension/Benefit Plan;
(ii) neither the COMPANY nor its agents has received, in the last
seven years, any notice from any Person questioning or challenging such
compliance (other than in respect of any claim related solely to that
Person), and the COMPANY has no knowledge of any such notice from any
Person questioning or challenging such compliance beyond the last seven
years;
(iii) all obligations under the Pension/Benefit Plans (whether
pursuant to the terms thereof or applicable law) have been satisfied,
and there are no outstanding defaults or violations thereunder by any
of the COMPANY or its agents nor does the COMPANY have any knowledge of
any default or violation by any other party to any Pension/Benefit
Plan;
(iv) there have been no amendments, modifications or restatements of
any Pension/Benefit Plan made, or any improvements in benefits promised,
under the Pension/Benefit Plans except as expressly provided therein or as
provided to VPI;
(v) all contributions or premiums required to be paid to or in respect
of each Pension/Benefit Plan have been paid in a timely fashion in
accordance with the terms thereof
25
and all applicable laws, and no taxes, penalties or fees are owing or
exigible under or in respect of any Pension/Benefit Plan;
(vi) there is no investigation, examination, proceeding, action, suit
or claim (other than routine claims for benefits) pending or threatened
involving any Pension/Benefit Plan or its assets, and no facts exist which
presently or after notice or lapse of time or both could reasonably be
expected to give rise to any such investigation, examination, proceeding,
action, suit or claim (other than routine claims for benefits);
(vii) no event has occurred respecting any Pension/Benefit Plan which
would entitle any Person (without the consent of the COMPANY) to wind-up or
terminate any Pension/Benefit Plan, in whole or in part, or which could
reasonably be expected to materially or adversely affect the tax status
thereof
(viii) there are no going concern unfunded actuarial liabilities, past
service unfunded liabilities or solvency deficiencies respecting any of the
Pension/Benefit Plans;
(ix) no material changes have occurred in respect of any
Pension/Benefit Plan since the date of the most recent financial,
accounting or actuarial report, as applicable, issued in connection with
any Pension/Benefit Plan, which could reasonably be expected to materially
or adversely affect the relevant report (including, without limitation,
rendering it misleading in any material respect);
(x) neither the COMPANY nor any previous employer of members or former
members of any Pension/Benefit Plan has received, or applied for, any
payment of surplus or other funds out of any Pension/Benefit Plan;
(xi) neither the COMPANY nor any previous employer of members or
former members of any Pension/Benefit Plan has taken any contribution
holidays under or drawn any surplus or other funds from any Pension/Benefit
Plan;
26
(xii) there have been no withdrawals or transfers of assets from any
Pension/Benefit Plan other than as contemplated and permitted by the
provisions of such Pension/Benefit Plan and applicable laws;
(xiii) all employee data necessary to administer each Pension/Benefit
Plan is in the possession of the COMPANY, and is complete, correct and in a
form which is sufficient for the proper administration of the
Pension/Benefit Plans, and none of the Pension/Benefit Plans, other than
any group registered retirement savings plan, provides benefits to retired
employees or to the beneficiaries or dependents of retired employees;
(xiv) none of the Pension/Benefit Plans requires or permits a
retroactive increase in premiums or payments, and the level of insurance
reserves, if any, under any insured Pension/Benefit Plan is reasonable and
sufficient to provide for all incurred but unreported claims;
(xv) neither the COMPANY nor its agents are in breach of any
contractual or fiduciary obligation with respect to the administration of
the Pension/Benefit Plans or the trusts or other funding media relating
thereto;
(xvi) none of the Pension/Benefit Plans are multiemployer pension
plans as defined under applicable laws;
(xvii) there exists no liability in connection with any former
Pension/Benefit Plan that has terminated and all procedures for termination
of each such former Pension/Benefit Plan has been properly followed in
accordance with the terms of such former Pension/Benefit Plan and
applicable laws;
(xviii) there are no merger or asset transfer applications pending
with any governmental authority with respect to any Pension/Benefit Plan;
and
(xix) neither the execution of this Agreement nor any agreement
referred to or contemplated herein, nor the consummation of any of the
transactions contemplated herein will result in any payment (including,
without limitation, severance, unemployment compensation,
27
golden parachute or otherwise) becoming due under any Pension/Benefit Plan,
increase any benefits otherwise payable under any Pension/Benefit Plan or
result in the acceleration of the time of payment or vesting of any such
benefits.
5.22 CONFORMITY WITH LAW; LITIGATION. Except to the extent set forth on
Schedules 5.22 or 5.13, the COMPANY is not in violation of any law or regulation
or of any order of any court or federal, provincial, municipal or other
governmental department, commission, board, bureau, agency or instrumentality
having jurisdiction over the COMPANY, except for inadvertent, immaterial
noncompliance with any such law, regulation or order (provided that any such
noncompliance shall be deemed a breach of this Section 5.22 for purposes of
Section 11 hereof); and except to the extent set forth on Schedules 5.10 or
5.13, there are no claims, actions, suits or proceedings, commenced or, to the
knowledge of the COMPANY, threatened, against or affecting the COMPANY, at law
or in equity, or before or by any federal, provincial, municipal or other
governmental department, commission, board, bureau, agency or instrumentality
having jurisdiction over the COMPANY and no notice of any claim, action, suit or
proceeding, whether pending or threatened, has been received. Except to the
extent set forth on Schedules 5.22 or 5.13, the COMPANY has conducted and is
conducting its business in compliance with the requirements, standards, criteria
and conditions set forth in applicable federal, provincial and local statutes,
ordinances, orders, approvals, variances, rules and regulations, and is not in
violation of any of the foregoing.
5.23 TAXES.
(a) The COMPANY has timely filed all requisite federal, provincial,
local, foreign and other Tax returns, reports, declarations or Tax return filing
extension requests ("Tax Returns") for all fiscal periods ended on or before the
Balance Sheet Date. All such Tax Returns have set forth all material items
required to be set forth therein and were prepared in compliance with applicable
laws and were true, correct and complete in all material respects. No material
fact or information has become known to the COMPANY or its officers or employees
responsible for maintaining the financial records of the COMPANY subsequent to
the filing of such Tax Returns to the contrary of
28
any information contained therein. Except as set forth on Schedule 5.23, there
are no examinations in progress (and the COMPANY and its employees are not aware
of any proposed examinations) or claims against the COMPANY (including liens
against the COMPANY's assets) for federal, provincial, local, foreign and other
Taxes (including penalties and interest) for any period or periods prior to and
including the Balance Sheet Date and no notice of any claim for Taxes, whether
pending or threatened, has been received. Except as set forth on Schedule 5.23,
neither the COMPANY nor the STOCKHOLDERS have entered into an agreement or
waiver or have been requested to enter into an agreement or waiver extending any
statute of limitations regarding Taxes.
(b) All Taxes, including interest and penalties (whether or not shown
on any Tax Return) owed by the COMPANY, any member of an affiliated or
consolidated group which includes or included the COMPANY, or with respect to
any payment made or deemed made by the COMPANY, required to be paid by the date
hereof, have been paid. All amounts required to be deposited, withheld or
collected under applicable federal, provincial, local, foreign or other Tax laws
and regulations by the COMPANY for Taxes have been so deposited, withheld or
collected, and such deposit, withholding or collection has either been paid to
the respective governmental agencies or set aside and secured in accounts for
such purpose or secured and reserved against and entered on the COMPANY
Financial Statements (and, if applicable, any Financial Statements delivered
pursuant to Section 7.10 hereof).
(c) The amounts, if any, shown as accruals for Taxes on the COMPANY
Financial Statements (and, if applicable, any Financial Statements delivered
pursuant to Section 7.10 hereof) are sufficient for the payment of all Taxes of
the kinds indicated (including penalties and interest) for all fiscal periods
ended on or before that date.
(d) Except as set forth on Schedule 5.23, the COMPANY has not been
included in or joined in the filing of any consolidated or combined Tax Return
(other than as a common parent). The COMPANY is not a party to or bound by or
obligated under any Tax sharing, Tax benefit or similar agreement with any
person or entity.
29
(e) Except as set forth on Schedule 5.23, the COMPANY (i) has not
assumed or is not liable for any Taxes of any other person or entity, including
any predecessor corporation or partnership, as a result of any purchase of
assets or other business acquisition transaction (other than a merger in which
the COMPANY or such person or entity was the surviving corporation or a
consolidation) and (ii) has not indemnified any other person or entity or
otherwise agreed to pay on behalf of any other person or entity any Taxes
arising from or which may be asserted on the basis of any Tax treatment adopted
with respect to all or any aspect of such business acquisition transaction.
(f) Copies of (i) the federal, provincial, foreign and local income
tax returns and franchise tax returns, if any, of COMPANY for its last three (3)
fiscal years or such shorter period of time as the COMPANY shall have existed,
(ii) any Tax examinations commenced or closed or outstanding during their three
(3) most recent fiscal years, and (iii) currently outstanding extensions of
statutory limitations, are attached hereto as Schedule 5.23.
(g) The COMPANY has a taxable year ended on the date set forth as such
on Schedule 5.23.
(h) Except as disclosed on Schedule 5.23, the COMPANY's methods of
accounting have not changed in the past five years. No adjustment to taxable
income by reason of a change of accounting method is required in respect of any
period for which the statute of limitations has not expired.
(i) [INTENTIONALLY DELETED]
(j) All statutory or regulatory material elections with respect to
Taxes affecting the COMPANY as of the date hereof are disclosed on Schedule
5.23. After the date hereof, no statutory or regulatory election with respect to
Taxes will be made without the written consent of VPI.
(k) [INTENTIONALLY DELETED]
5.24 NO VIOLATIONS. The COMPANY is not in violation of any Charter
Document. Neither the COMPANY nor, to the knowledge of the COMPANY, any other
party thereto, is in default under
30
any lease, instrument, agreement, license or permit set forth on Schedules 5.12,
5.13, 5.14, 5.15, 5.16 or 5.17, or any other material agreement to which it is a
party or by which its properties are bound (the "Material Documents"); and,
except as set forth on Schedule 5.24, (a) the rights and benefits of the COMPANY
under the Material Documents will not be adversely affected by the transactions
contemplated hereby and (b) the execution of this Agreement and the performance
of the obligations hereunder and the consummation of the transactions
contemplated hereby will not result in any violation or breach or constitute a
default under, any of the terms or provisions of the Material Documents or the
Charter Documents. Except as set forth on Schedule 5.24, none of the Material
Documents requires notice to, or the consent or approval of, any governmental
agency or other third party with respect to any of the transactions contemplated
hereby in order to remain in full force and effect, and consummation of the
transactions contemplated hereby will not give rise to any right to termination,
cancellation or acceleration or loss of any right or benefit. Except as set
forth on Schedule 5.24, none of the Material Documents prohibits the use or
publication by the COMPANY, VPI or NEWCO of the name of any other party to such
Material Document, and none of the Material Documents prohibits or restricts the
COMPANY from freely providing services to any other customer or potential
customer of the COMPANY, VPI, NEWCO or any Other Founding Company.
5.25 GOVERNMENT CONTRACTS. Except as set forth on Schedule 5.25, the
COMPANY is not now a party to any governmental contract subject to price
redetermination or renegotiation.
5.26 ABSENCE OF CHANGES. Since the Balance Sheet Date, except as set forth
on Schedule 5.26, there has not been:
(i) any material adverse change in the financial condition, assets,
liabilities (contingent or otherwise), income or business of the COMPANY;
(ii) any damage, destruction or loss (whether or not covered by
insurance) materially adversely affecting the properties or business of the
COMPANY;
31
(iii) any change in the authorized capital of the COMPANY or its
outstanding securities or any change in its ownership interests or any
grant of any options, warrants, calls, conversion rights or commitments;
(iv) any declaration or payment of any dividend or distribution in
respect of the capital stock (except for dividends or distributions of cash
that do not cause the COMPANY to fail to meet the financial requirements,
as of the Closing Date, set forth in the first sentence of Section 3.3) or
any direct or indirect redemption, purchase or other acquisition of any of
the capital stock of the COMPANY;
(v) any increase in the compensation, bonus, sales commissions or fee
arrangement payable or to become payable by the COMPANY to any of its
officers, directors, STOCKHOLDERS, employees, consultants or agents, except
for ordinary and customary bonuses and salary increases for employees in
accordance with past practice;
(vi) any work interruptions, labor grievances or claims filed, or any
event or condition of any character, materially adversely affecting the
business of the COMPANY;
(vii) any sale or transfer, or any agreement to sell or transfer, any
material assets, property or rights of the COMPANY to any person (other
than VPI), including, without limitation, the STOCKHOLDERS and their
respective affiliates;
(viii) any cancellation of, or agreement to cancel, any indebtedness
or other obligation owing to the COMPANY, including without limitation any
indebtedness or obligation of the STOCKHOLDERS or any affiliate thereof,
except for inadvertent, immaterial cancellations of or agreements to cancel
any such indebtedness or obligation (provided that any such cancellation or
agreement to cancel shall be deemed a breach of this Section 5.26 for
purposes of Section 11 hereof);
(ix) any plan, agreement or arrangement granting (other than to VPI)
any preferential rights to purchase or acquire any interest in any of the
assets, property or rights of
32
the COMPANY or requiring consent of any party to the transfer and
assignment of any such assets, property or rights;
(x) any purchase or acquisition of, or agreement, plan or arrangement
to purchase or acquire, any property, rights or assets outside of the
ordinary course of the COMPANY's business;
(xi) any waiver of any material rights or claims of the COMPANY;
(xii) any material breach, amendment or termination of any contract,
agreement, license, permit or other right to which the COMPANY is a party;
(xiii) any transaction by the COMPANY outside the ordinary course of
its business;
(xiv) any cancellation or termination of a material contract with a
customer or client prior to the scheduled termination date; or
(xv) any other distribution of property or assets by the COMPANY.
5.27 DEPOSIT ACCOUNTS; POWERS OF ATTORNEY. The COMPANY has delivered to VPI
an accurate schedule (which is set forth on Schedule 5.27) as of the date of the
Agreement of:
(i) the name of each financial institution in which the COMPANY has
accounts or safe deposit boxes;
(ii) the names in which the accounts or boxes are held;
(iii) the type of account and account number; and
(iv) the name of each person authorized to draw thereon or have access
thereto. Schedule 5.27 also sets forth a complete list of the names of each
person, corporation, firm or other entity holding a general or special
power of attorney from the COMPANY and a description of the terms of such
power.
5.28 VALIDITY OF OBLIGATIONS. The execution and delivery of this Agreement
by the COMPANY and the performance of the transactions contemplated herein have
been duly and validly authorized by the Board of Directors of the COMPANY and
this Agreement has been duly and validly authorized by all necessary corporate
action and is a legal, valid and binding obligation of the
33
COMPANY, enforceable against the COMPANY in accordance with its terms except as
may be limited by (i) bankruptcy, insolvency or other similar laws of general
application relating to or affecting the enforcement of creditors' rights
generally or (ii) the discretionary power of a court exercising equity
jurisdiction. The individual signing this Agreement on behalf of the COMPANY has
the legal power, authority and capacity to bind the COMPANY to the terms of this
Agreement.
5.29 RELATIONS WITH GOVERNMENTS. The COMPANY has not made, offered or
agreed to offer anything of value to any governmental official, political party
or candidate for government office in violation of applicable law nor has it
otherwise taken any action which would cause the COMPANY to be in violation of
the Foreign Corrupt Practices Act of 1977, as amended, or any law of similar
effect.
5.30 DISCLOSURE.
(a) This Agreement, including the schedules hereto, together with the
completed Directors and Officers Questionnaires and Registration Statement
Questionnaires attached hereto as Schedule 5.30 and all other documents and
information made available to VPI and its representatives in writing pursuant
hereto or thereto, present fairly the business and operations of the COMPANY for
the time periods with respect to which such information was requested. The
COMPANY's rights under the documents delivered pursuant to this Agreement would
not be materially adversely affected by, and no statement made in this Agreement
would be rendered untrue in any material respect by, (i) any other document to
which the COMPANY is a party, or to which its properties are subject, or (ii)
any other fact or circumstance regarding the COMPANY (which fact or circumstance
was, or should reasonably, after due inquiry, have been known to the COMPANY)
that is not disclosed pursuant to this Agreement or to such delivered documents.
(b) The COMPANY and the STOCKHOLDERS acknowledge and agree (i) that
there exists no firm commitment, binding agreement, or promise or other
assurance of any kind, whether express or implied, oral or written, that a
Registration Statement will become effective or that the IPO pursuant thereto
will occur at a particular price or within a particular range of prices or occur
34
at all; and (ii) that neither VPI or any of its officers, directors, agents or
representatives nor any Underwriter shall have any liability to the COMPANY, the
STOCKHOLDERS or any other person affiliated or associated with the COMPANY for
any failure of the Registration Statement to become effective, the IPO to occur
at a particular price or within a particular range of prices or to occur at all.
5.31 PROHIBITED ACTIVITIES. Except as set forth on Schedule 5.31, the
COMPANY has not, between the Balance Sheet Date and the date hereof, taken any
of the actions set forth in Section 7.3 (Prohibited Activities).
(B) REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS
Each STOCKHOLDER severally represents and warrants that the representations
and warranties set forth below are true as of the date of this Agreement and,
subject to Section 7.8 hereof, shall be true at the time of Pre-Closing and on
the Closing Date, and that the representations and warranties set forth in
Sections 5.32, 5.33 and 5.34 shall survive until the second anniversary of the
Closing Date, which shall be the Expiration Date for purposes of those Sections.
5.32 AUTHORITY; OWNERSHIP. Such STOCKHOLDER has the full legal right, power
and authority to enter into this Agreement. Such STOCKHOLDER owns beneficially
and of record all of the shares of the COMPANY Stock identified on Annex IV as
being owned by such STOCKHOLDER, and, except as set forth on Schedule 5.3, such
COMPANY Stock is owned free and clear of all liens, encumbrances and claims of
every kind.
5.33 PREEMPTIVE RIGHTS. Such STOCKHOLDER does not have, or hereby waives,
any preemptive or other right to acquire shares of COMPANY Stock or VPI Stock
that such STOCKHOLDER has or may have had on the date hereof other than rights
of the STOCKHOLDER to acquire VPI Stock pursuant to any option granted by VPI.
5.34 RESIDENT STATUS . None of the STOCKHOLDERS are non-residents within
the meaning of the Income Tax Act (Canada).
35
6. REPRESENTATIONS OF VPI AND NEWCO
VPI and NEWCO jointly and severally represent and warrant that all of the
following representations and warranties in this Section 6 are true at the date
of this Agreement and, subject to Section 7.8 hereof, shall be true at the time
of Pre-Closing and the Closing Date, and that such representations and
warranties shall survive the Closing Date for a period of two years (the last
day of such period being the "Expiration Date"), except that (i) the warranties
and representations set forth in Section 6.14 hereof shall survive until such
time as the limitations period has run for all Tax periods ended on or prior to
the Closing Date, which shall be deemed to be the Expiration Date for Section
6.14, and (ii) solely for purposes of determining whether a claim for
indemnification under Section 11.2(iv) hereof has been made on a timely basis,
and solely to the extent that in connection with the IPO, the STOCKHOLDERS or
the COMPANY actually incur liability under the 1933 Act, the 1934 Act, or any
other federal or state securities laws, the representations and warranties set
forth herein shall survive until the expiration of any applicable limitations
period, which shall be deemed to be the Expiration Date for such purposes.
6.1 DUE ORGANIZATION. VPI is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware. NEWCO is a
corporation duly organized, validly existing and in good standing under the laws
of Canada. VPI and NEWCO each are duly authorized and qualified to do business
under all applicable laws, regulations, ordinances and orders of public
authorities to carry on their respective businesses in the places and in the
manner as now conducted except where the failure to be so authorized or
qualified would not have a Material Adverse Effect. True, complete and correct
copies of the Certificate of Incorporation and Bylaws, each as amended, of VPI
and NEWCO (the "VPI Charter Documents") are all attached hereto as Annex II. The
VPI
36
Charter Documents provide for indemnification of officers and directors to the
full extent permitted by the General Corporation Law of Delaware.
6.2 AUTHORIZATION. (i) The respective representatives of VPI and NEWCO
executing this Agreement have the authority to enter into and bind VPI and NEWCO
to the terms of this Agreement and (ii) VPI and NEWCO have the full legal right,
power and authority to enter into and perform this Agreement and the
transactions contemplated hereby, and all required approvals of the shareholders
and board of directors of VPI and NEWCO, respectively, have been obtained.
6.3 CAPITAL STOCK OF VPI AND NEWCO. Immediately prior to the Closing Date,
the authorized capital stock of VPI and NEWCO is as set forth in Sections
1.4(ii) and (iii), respectively. All of the issued and outstanding shares of the
capital stock of NEWCO are owned by VPI and all of the issued and outstanding
shares of the capital stock of VPI are owned by the persons set forth on Annex V
hereof, and further are owned, in each case, free and clear of all liens,
security interests, pledges, charges, voting trusts, restrictions, encumbrances
and claims of every kind. Upon consummation of the IPO, the number of
outstanding shares of VPI will be as set forth in the Registration Statement.
All of the issued and outstanding shares of the capital stock of VPI and NEWCO
have been duly authorized and validly issued, are fully paid and nonassessable,
are owned of record and beneficially by VPI and the persons set forth on Annex
V, respectively, and further, such shares were offered, issued, sold and
delivered by VPI and NEWCO in compliance with all applicable state, Canadian
provincial and federal laws concerning the issuance of securities. Further, none
of such shares was issued in violation of the preemptive rights of any past or
present stockholder of VPI or NEWCO.
6.4 TRANSACTIONS IN CAPITAL STOCK. Except for the Other Agreements and
except as set forth on Schedule 6.4, (i) no option, warrant, call, conversion
right or commitment of any kind exists which obligates VPI or NEWCO to issue any
of their respective authorized but unissued capital stock; and (ii) neither VPI
nor NEWCO has any obligation (contingent or otherwise) to purchase, redeem or
otherwise acquire any of its equity securities or any interests therein or to
pay any dividend or make
37
any distribution in respect thereof. Schedule 6.4 also includes complete and
accurate copies of all stock option or stock purchase plans, including a list,
accurate as of the date hereof, of all outstanding options, warrants or other
rights to acquire shares of the stock of VPI.
6.5 SUBSIDIARIES. NEWCO has no subsidiaries. VPI has no subsidiaries except
for NEWCO and each of the companies identified as "NEWCO" in each of the Other
Agreements. Except as set forth in the preceding sentence, neither VPI nor NEWCO
presently owns, of record or beneficially, or controls, directly or indirectly,
any capital stock, securities convertible into capital stock or any other equity
interest in any corporation, association or business entity nor is VPI or NEWCO,
directly or indirectly, a participant in any joint venture, partnership or other
non-corporate entity.
6.6 FINANCIAL STATEMENTS. Attached hereto as Schedule 6.6 are copies of the
following financial statements (the "VPI Financial Statements") of VPI, which
reflect the results of its operations from inception: VPI's audited Balance
Sheet as of December 31, 1997 and Statements of Income, Cash Flows and Retained
Earnings for the period from inception through December 31, 1997. Such VPI
Financial Statements have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis throughout the periods
indicated (except as noted thereon or on Schedule 6.6). Except as set forth on
Schedule 6.6, such Balance Sheets as of December 31, 1997 present fairly the
financial position of VPI as of such date, and such Statements of Income, Cash
Flows and Retained Earnings present fairly the results of operations for the
period indicated.
6.7 LIABILITIES AND OBLIGATIONS. Except as set forth on Schedule 6.7, VPI
and NEWCO have no material liabilities, contingent or otherwise, except as set
forth in or contemplated by this Agreement and the Other Agreements and except
for fees and expenses incurred in connection with the transactions contemplated
hereby and thereby.
6.8 CONFORMITY WITH LAW; LITIGATION. Except to the extent set forth on
Schedule 6.8, neither VPI nor NEWCO is in violation of any law or regulation, or
of any order of any court or federal, provincial, Canadian, state, municipal or
other governmental department, commission, board, bureau, agency or
instrumentality having jurisdiction over either of them; and except to the
extent set
38
forth on Schedule 6.8, there are no material claims, actions, suits or
proceedings, pending or, to the knowledge of VPI or NEWCO, threatened, against
or affecting VPI or NEWCO, at law or in equity, or before or by any federal,
state, municipal or other governmental department, commission, board, bureau,
agency or instrumentality having jurisdiction over either of them and no notice
of any claim, action, suit or proceeding, whether pending or threatened, has
been received. VPI and NEWCO have conducted and are conducting their respective
businesses in compliance with the requirements, standards, criteria and
conditions set forth in applicable federal, state, foreign and local statutes,
ordinances, permits, licenses, orders, approvals, variances, rules and
regulations and are not in violation of any of the foregoing.
6.9 NO VIOLATIONS. Neither VPI nor NEWCO is in violation of any VPI Charter
Document. None of VPI, NEWCO, or, to the knowledge of VPI and NEWCO, any other
party thereto, is in default under any lease, instrument, agreement, license or
permit to which VPI or NEWCO is a party, or by which VPI or NEWCO, or any of
their respective properties, are bound (collectively, the "VPI Documents"); and
(a) the rights and benefits of VPI and NEWCO under the VPI Documents will not be
adversely affected by the transactions contemplated hereby and (b) the execution
of this Agreement and the performance of the obligations hereunder and the
consummation of the transactions contemplated hereby will not result in any
violation or breach or constitute a default under, any of the terms or
provisions of the VPI Documents or the VPI Charter Documents. Except as set
forth on Schedule 6.9, none of the VPI Documents requires notice to, or the
consent or approval of, any governmental agency or other third party with
respect to any of the transactions contemplated hereby in order to remain in
full force and effect and consummation of the transactions contemplated hereby
will not give rise to any right to termination, cancellation or acceleration or
loss of any right or benefit.
6.10 VALIDITY OF OBLIGATIONS. The execution and delivery of this
Agreement by VPI and NEWCO and the performance of the transactions contemplated
herein have been duly and validly authorized by the respective Boards of
Directors of VPI and NEWCO and this Agreement has been
39
duly and validly authorized by all necessary corporate action and is a legal,
valid and binding obligation of VPI and NEWCO, enforceable against each of VPI
and NEWCO in accordance with its terms except as limited by bankruptcy,
insolvency or other similar laws of general application relating to or affecting
the enforcement of creditors' rights generally, and the individuals signing this
Agreement on behalf of VPI and NEWCO have the legal power, authority and
capacity to bind such parties.
6.11 VPI STOCK. At the time of issuance thereof, the VPI Stock to be
delivered to the STOCKHOLDERS upon exchange of Dividend Access Shares pursuant
to this Agreement will constitute valid and legally issued shares of VPI, fully
paid and nonassessable, and with the exception of restrictions upon resale set
forth in Sections 15 and 16 hereof, will be identical in all material and
substantive respects, except with respect to voting rights, to the VPI Stock
issued and outstanding as of the date hereof and the VPI Stock to be issued
pursuant to the Other Agreements by reason of the provisions of the Delaware
GCL. The shares of VPI Stock to be issued to the STOCKHOLDERS pursuant to this
Agreement will not be registered under the 1933 Act, except as provided in
Section 17 hereof.
6.12 NO SIDE AGREEMENTS. Neither VPI nor NEWCO has entered or will enter
into any agreement with any of the Founding Companies or any of the stockholders
of the Founding Companies or VPI other than the Other Agreements and the
agreements specifically contemplated by each of the Other Agreements, including
the employment agreements referred to therein, and none of VPI, NEWCO, their
equity owners or affiliates have received any cash compensation or payments in
connection with this transaction except for reimbursement of out-of-pocket
expenses which are necessary or appropriate to this transaction.
6.13 BUSINESS; REAL PROPERTY; MATERIAL AGREEMENTS. Neither VPI nor NEWCO
has conducted any operations or business since inception other than activities
related to the VPI Plan of Organization. Neither VPI nor NEWCO owns or has at
any time owned any real property or any material personal property or is a party
to any other agreement, except as listed on Schedule 6.13 and
40
except that VPI is a party to the Other Agreements and the agreements
contemplated thereby and to such agreements as will be filed as Exhibits to the
Registration Statement.
6.14 TAXES.
(a) VPI and NEWCO have timely filed all requisite federal, state,
local and other Tax Returns for all fiscal periods ended on or before the date
hereof. All such Tax Returns have set forth all material items required to be
set forth therein and were prepared in compliance with applicable laws and were
true, correct and complete in all material respects. No material fact or
information has become known to VPI or NEWCO or their officers or employees
responsible for maintaining the financial records of VPI and NEWCO subsequent to
the filing of such Tax Returns to the contrary of any information contained
therein. Except as set forth on Schedule 6.14, there are no examinations in
progress (and VPI and NEWCO and their employees are not aware of any proposed
examinations) or claims against VPI or NEWCO (including liens against assets of
VPI or NEWCO) for federal, state, local and other Taxes (including penalties and
interest) for any period or periods prior to and including the date hereof and
no notice of any claim for Taxes, whether pending or threatened, has been
received. Except as set forth on Schedule 6.14, neither VPI nor NEWCO has
entered into an agreement or waiver or have been requested to enter into an
agreement or waiver extending any statute of limitations regarding Taxes.
(b) All Taxes, including interest and penalties (whether or not shown
on any Tax Return) owed by VPI and NEWCO, any member of an affiliated or
consolidated group which includes or included VPI or NEWCO, or with respect to
any payment made or deemed made by VPI or NEWCO, required to be paid by the date
hereof, have been paid. All amounts required to be deposited, withheld or
collected under applicable federal, state, local or other Tax laws and
regulations by VPI and NEWCO for Taxes have been so deposited, withheld or
collected, and such deposit, withholding or collection has either been paid to
the respective governmental
41
agencies or set aside and secured in accounts for such purpose or secured and
reserved against and entered on the financial statements.
(c) The amounts, if any, shown as accruals for Taxes on the VPI
Financial Statements are sufficient for the payment of all Taxes of the kinds
indicated (including penalties and interest) for all fiscal periods ended on or
before that date.
(d) Except as set forth on Schedule 6.14, neither VPI nor NEWCO has
been included in or joined in the filing of any consolidated or combined Tax
Return (other than as a common parent). Neither VPI nor NEWCO is a party to or
bound by or obligated under any Tax sharing, Tax benefit or similar agreement
with any person or entity.
(e) Except as set forth on Schedule 6.14, neither VPI nor NEWCO (i)
has assumed or is liable for any Taxes of any other person or entity, including
any predecessor corporation or partnership, as a result of any purchase of
assets or other business acquisition transaction (other than a merger in which
VPI or NEWCO or such person or entity was the surviving corporation or a
consolidation) and (ii) has indemnified any other person or entity or otherwise
agreed to pay on behalf of any other person or entity any Taxes arising from or
which may be asserted on the basis of any Tax treatment adopted with respect to
all or any aspect of such business acquisition transaction.
(f) Copies of (i) the federal, state and local income tax returns and
franchise tax returns of VPI and NEWCO for their last three (3) fiscal years or
such shorter period of time as VPI or NEWCO shall have existed, (ii) any Tax
examinations commenced or closed or outstanding during their three (3) most
recent fiscal years, and (iii) currently outstanding extensions of statutory
limitations, are attached hereto as Schedule 6.14.
(g) VPI and NEWCO have a taxable year ended on the date set forth as
such on Schedule 6.14.
(h) Except as disclosed on Schedule 6.14, neither VPI's nor NEWCO's
methods of accounting have changed in the past five years. No adjustment to
taxable income by
42
reason of a change of accounting method is required in respect of any period for
which the statute of limitations has not expired.
(i) Neither VPI nor NEWCO is an investment company as defined in
Section 351(e)(1) of the Code.
(j) All statutory or regulatory material elections with respect to
Taxes affecting VPI and NEWCO as of the date hereof are disclosed on Schedule
6.14.
(k) Neither VPI nor NEWCO has filed a consent with the Internal
Revenue Service pursuant to section 341(f) of the Code or has agreed to have
section 341(f)(2) of the Code apply to any disposition of any subsection (f)
asset (as defined in section 341(f) of the Code) owned by VPI or NEWCO.
6.15 COMPLETION OF DUE DILIGENCE. VPI has substantially completed its due
diligence of the COMPANY as of the date hereof, except for any additional
investigation that may be needed as a result of a notice pursuant to Section 7.7
or an amendment pursuant to Section 7.8.
6.16 DISCLOSURE. This Agreement (which includes the Schedules and Annexes
attached hereto) and the Registration Statement do not contain any untrue
statement of a material fact by VPI or NEWCO, and do not omit to state any
material fact necessary in order to make the statements made herein or therein,
in light of the circumstances under which they are made, not misleading.
7. COVENANTS PRIOR TO CLOSING
7.1 ACCESS AND COOPERATION; DUE DILIGENCE. (a) Between the date of this
Agreement and the Closing Date, the COMPANY will afford to the officers and
authorized representatives of VPI and the Other Founding Companies (including
the Underwriters and their counsel) access to all of the COMPANY's sites,
properties, books and records and will furnish VPI with such additional
financial and operating data and other information as to the business and
properties of the COMPANY as VPI or the Other Founding Companies may from time
to time reasonably request. The COMPANY will
43
reasonably cooperate with VPI and the Other Founding Companies and their
respective representatives, including VPI's auditors and counsel, in the
preparation of any documents or other material (including the Registration
Statement) which may be required in connection with any documents or materials
required by this Agreement. VPI, NEWCO, the STOCKHOLDERS and the COMPANY shall
treat all information obtained in connection with the negotiation and
performance of this Agreement or the due diligence investigations conducted with
respect to the Other Founding Companies as confidential in accordance with the
provisions of Section 14 hereof. In addition, VPI will cause each of the Other
Founding Companies to enter into a provision similar to this Section 7.1
requiring each such Other Founding Company, its stockholders, directors,
officers, representatives, employees and agents to keep confidential any
information regarding the COMPANY obtained by such Other Founding Company.
(b) Between the date of this Agreement and the Closing Date, VPI will
afford to the officers and authorized representatives of the COMPANY access to
all of VPI's and NEWCO's sites, properties, books and records and all due
diligence, agreements, documents and information of or concerning the Founding
Companies and will furnish the COMPANY with such additional financial and
operating data and other information as to the business and properties of VPI
and NEWCO as the COMPANY may from time to time reasonably request. VPI and NEWCO
will cooperate with the COMPANY, its representatives, auditors and counsel in
the preparation of any documents or other material which may be required in
connection with any documents or materials required by this Agreement. VPI will
provide complete access to its operations and key officers and employees to the
COMPANY, its representatives and advisors on a continuing basis through the
Closing Date. The COMPANY will cause all information obtained in connection with
the negotiation and performance of this Agreement to be treated as confidential
in accordance with the provisions of Section 14 hereof.
7.2 CONDUCT OF BUSINESS PENDING CLOSING. Between the date of this Agreement
and the Closing Date, the COMPANY shall, except (x) as set forth on Schedule
7.2, (y) as requested by VPI or (z) as consented to by VPI (which consent shall
not be unreasonably withheld):
44
(i) carry on its business in substantially the same manner as it has
heretofore and not introduce any new method of management, operation or
accounting;
(ii) maintain its properties and facilities, including those held
under leases, in at least as good working order and condition as at
present, ordinary wear and tear excepted;
(iii) perform in all material respects its obligations under debt and
lease instruments and other agreements relating to or affecting its assets,
properties, equipment or rights;
(iv) keep in full force and effect present insurance policies or other
comparable insurance coverage;
(v) maintain and preserve its business organization intact, and use
its best efforts to retain its present employees and relationships and
present agreements with suppliers, customers and others having business
relations with the COMPANY;
(vi) maintain compliance with all permits, laws, rules and
regulations, consent orders, and all other orders of applicable courts,
regulatory agencies and similar governmental authorities, except for
inadvertent, immaterial noncompliance with any such permit, law, rule,
regulation or order (provided that any such noncompliance shall be deemed a
breach of this Section 7.2 for purposes of Section 11 hereof);
(vii) maintain present debt and lease instruments and not enter into
new or amended debt or lease instruments, other than in the ordinary course
of business; and
(viii) maintain or reduce present salaries and commission levels for
all officers, directors, employees and agents except for regularly
scheduled raises to non-officers consistent with past practices.
7.3 PROHIBITED ACTIVITIES. Except as disclosed on Schedule 7.3, between the
date hereof and the Closing Date, the COMPANY shall not, without the prior
written consent of VPI or unless requested by VPI:
(i) make any change in its Charter Documents;
45
(ii) issue any securities, options, warrants, calls, conversion rights
or commitments relating to its securities of any kind other than in
connection with the exercise of options or warrants listed on Schedule 5.4;
(iii) declare or pay any dividend, or make any distribution in respect
of its stock whether now or hereafter outstanding (except for dividends or
distributions of cash that do not cause the COMPANY to fail to meet the
financial requirements, as of the Closing Date, set forth in the first
sentence of Section 3.3), or purchase, redeem or otherwise acquire or
retire for value any shares of its stock;
(iv) enter into any contract or commitment or incur or agree to incur
any liability or make any capital expenditures, except if it is in the
normal course of business (consistent with past practice) or involves an
amount not in excess of $10,000;
(v) create, assume or permit to exist any mortgage, pledge or other
lien or encumbrance upon any assets or properties whether now owned or
hereafter acquired, except: (1) with respect to purchase money liens
incurred in connection with the acquisition of equipment with an aggregate
cost not in excess of $10,000 necessary or desirable for the conduct of the
businesses of the COMPANY; (2)(A) liens for Taxes either not yet due or
payable or being contested in good faith and by appropriate proceedings
(and for which contested Taxes adequate reserves have been established and
are being maintained) or (B) materialmen's, mechanics', workers',
repairmen's, employees' or other like liens arising in the ordinary course
of business (the liens set forth in clause (2) being referred to herein as
"Statutory Liens"), or (3) liens set forth on Schedules 5.10 and/or 5.17
hereto;
(vi) sell, assign, lease or otherwise transfer or dispose of any
property or equipment except in the normal course of business;
(vii) negotiate for the acquisition of any business or the start-up of
any new business;
46
(viii) merge or consolidate or agree to merge or consolidate with or
into any other corporation;
(ix) waive any material rights or claims of the COMPANY, provided that
the COMPANY may negotiate and adjust bills in the course of good faith
disputes with customers in a manner consistent with past practice,
provided, further, that such adjustments shall not be deemed to be included
on Schedule 5.11 unless specifically listed thereon;
(x) commit a material breach or amend or terminate any material
agreement, permit, license or other right of the COMPANY;
(xi) enter into any other transaction outside the ordinary course of
its business or prohibited hereunder;
(xii) effect any change in the capital structure of the COMPANY,
including, but not limited to, the issuance of any option, warrant, call,
conversion right or commitment of any kind with respect to the COMPANY's
capital stock or the purchase or other reacquisition of any outstanding
shares for treasury stock; or
(xiii) make expenditures outside the normal course of business.
7.4 NO SHOP. None of the STOCKHOLDERS, the COMPANY, or any agent, officer,
director, trustee or any representative of any of the foregoing will, during the
period commencing on the date of this Agreement and ending with the earlier to
occur of the Closing Date or the termination of this Agreement in accordance
with its terms, directly or indirectly:
(i) solicit or initiate the submission of proposals or offers from any
person or entity for,
(ii) participate in any discussions pertaining to, or
(iii) furnish any information to any person or entity other than VPI
or its authorized agents relating to any acquisition or purchase of all or
a material amount of the assets of, or any equity interest in, the COMPANY
or a merger, consolidation or business combination of the COMPANY.
47
7.5 NOTICE TO BARGAINING AGENTS. Prior to the Pre-Closing Date, the COMPANY
shall satisfy any requirement for notice of the transactions contemplated by
this Agreement under applicable collective bargaining agreements, and shall
provide VPI on Schedule 7.5 with proof that any required notice has been sent.
7.6 AGREEMENTS. The STOCKHOLDERS and the COMPANY shall terminate, on or
prior to the Closing Date, (i) any stockholders agreements, voting agreements,
voting trusts, options, warrants and employment agreements between the COMPANY
and any employee listed on Schedule 8.11 hereto and (ii) any existing agreement
between the COMPANY and any STOCKHOLDER not reflecting fair market terms, except
such existing agreements as are set forth on Schedule 9.7. Such termination
agreements are listed on Schedule 7.6 and copies thereof are attached hereto.
7.7 NOTIFICATION OF CERTAIN MATTERS. The STOCKHOLDERS and the COMPANY shall
give prompt notice to VPI of (i) the occurrence or non-occurrence of any event
the occurrence or non-occurrence of which would be likely to cause any
representation or warranty of the COMPANY or the STOCKHOLDERS contained herein
to be untrue or inaccurate in any material respect at or prior to the
Pre-Closing and (ii) any material failure of any STOCKHOLDER or the COMPANY to
comply with or satisfy any covenant, condition or agreement to be complied with
or satisfied by such person hereunder. VPI and NEWCO shall give prompt notice to
the COMPANY of (i) the occurrence or non-occurrence of any event the occurrence
or non-occurrence of which would be likely to cause any representation or
warranty of VPI or NEWCO contained herein to be untrue or inaccurate in any
material respect at or prior to the Pre-Closing and (ii) any material failure of
VPI or NEWCO to comply with or satisfy any covenant, condition or agreement to
be complied with or satisfied by it hereunder. The delivery of any notice
pursuant to this Section 7.7 that is not accompanied by a proposed amendment or
supplement to a schedule pursuant to Section 7.8 shall not be deemed to (i)
modify the representations or warranties hereunder of the party delivering such
notice, which modification may only be made pursuant to Section 7.8, (ii) modify
the conditions set forth in Sections
48
8 and 9, or (iii) limit or otherwise affect the remedies available hereunder to
the party receiving such notice.
7.8 AMENDMENT OF SCHEDULES. Each party hereto agrees that, with respect to
the representations and warranties of such party contained in this Agreement,
such party shall have the continuing obligation until the Pre-Closing Date to
supplement or amend promptly the Schedules hereto with respect to any matter
hereafter arising which, if existing at the date of this Agreement, would have
been required to be set forth or described in the Schedules, provided, however,
that supplements and amendments to Schedules 5.10, 5.11, 5.14, 5.15, 5,16 and
5.19 shall only have to be delivered at the Pre-Closing Date, unless such
Schedule is to be amended to reflect an event occurring other than in the
ordinary course of business. Notwithstanding the foregoing sentence, no
amendment or supplement to a Schedule prepared by the COMPANY that constitutes
or reflects an event or occurrence that would have a Material Adverse Effect may
be made unless VPI and a majority of the Founding Companies other than the
COMPANY consent to such amendment or supplement; and provided further, that no
amendment or supplement to a schedule prepared by VPI or NEWCO that constitutes
or reflects an event or occurrence that would have a Material Adverse Effect may
be made unless a majority of the Founding Companies consent to such amendment or
supplement. For all purposes of this Agreement, including without limitation for
purposes of determining whether the conditions set forth in Sections 8.1 and 9.1
have been fulfilled, the Schedules hereto shall be deemed to be the schedules as
amended or supplemented pursuant to this Section 7.8. In the event that one of
the Other Founding Companies seeks to amend or supplement a schedule pursuant to
Section 7.8 of one of the Other Agreements, and such amendment or supplement
constitutes or reflects an event or occurrence that would have a Material
Adverse Effect on such Other Founding Company, VPI shall give the COMPANY notice
promptly after it has knowledge thereof. If VPI and a majority of the Founding
Companies consent to such amendment or supplement, but the COMPANY does not give
its consent, the COMPANY may terminate this Agreement pursuant to Section
12.l(iv) hereof. In the event that the COMPANY seeks to amend or supplement a
Schedule pursuant to this Section 7.8, and
49
VPI and a majority of the Other Founding Companies do not consent to such
amendment or supplement, this Agreement shall be deemed terminated by mutual
consent as set forth in Section 12.1(i) hereof. In the event that VPI or NEWCO
seeks to amend or supplement a Schedule pursuant to this Section 7.8 and a
majority of the Founding Companies do not consent to such amendment or
supplement, this Agreement shall be deemed terminated by mutual consent as set
forth in Section 12.1(i) hereof. No party to this Agreement shall be liable to
any other party if this Agreement shall be terminated pursuant to the provisions
of this Section 7.8. No amendment of or supplement to a Schedule shall be made
later than 24 hours prior to the anticipated effectiveness of the Registration
Statement. For purposes of this Section 7.8, consent to an amendment or
supplement to a schedule pursuant to Section 7.8 of this Agreement or one of the
Other Agreements shall have been deemed given by VPI or any Founding Company if
no response is received within 24 hours following receipt of notice of such
amendment or supplement (or sooner if required by the circumstances under which
such consent is requested and so requested in the notice). The provisions of
this Section 7.8 shall be contained in the Other Agreements executed in
connection with the VPI Plan of Organization.
7.9 COOPERATION IN PREPARATION OF REGISTRATION STATEMENT. The COMPANY and
STOCKHOLDERS shall furnish or cause to be furnished to VPI and the Underwriters
all of the information concerning the COMPANY and the STOCKHOLDERS required for
inclusion in, and will cooperate with VPI and the Underwriters in the
preparation of, the Registration Statement and the prospectus included therein
(including audited and unaudited financial statements, prepared in accordance
with generally accepted accounting principles, in form suitable for inclusion in
the Registration Statement). The COMPANY and the STOCKHOLDERS agree promptly to
advise VPI if, at any time during the period in which a prospectus relating to
the offering is required to be delivered under the 1933 Act, any information
contained in the prospectus concerning the COMPANY or the STOCKHOLDERS becomes
incorrect or incomplete in any material respect, and to provide the information
needed to correct such inaccuracy. VPI will give the COMPANY and the
50
STOCKHOLDERS an opportunity and a reasonable amount of time to review and
comment on a substantially final draft of the Registration Statement prior to
filing, and with respect to all amendments thereto, VPI will give the COMPANY
and STOCKHOLDERS an opportunity to review and comment on those portions of such
amendments that relate to the COMPANY. Insofar as the information contained in
the Registration Statement relates solely to the COMPANY or the STOCKHOLDERS, as
of the effective date of the Registration Statement the COMPANY represents and
warrants as to such information with respect to itself, and each STOCKHOLDER
represents and warrants, as to such information with respect to the COMPANY and
himself or herself, that the Registration Statement will not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading and that the STOCKHOLDERS
and the COMPANY have had the opportunity to review and approve such information.
If, prior to the 25th day after the date of the final prospectus of VPI utilized
in connection with the IPO, the COMPANY or the STOCKHOLDERS become aware of any
fact or circumstance which would change (or, if after the Closing Date, would
have changed) a representation or warranty of the COMPANY or the STOCKHOLDERS in
this Agreement or would affect any document delivered pursuant hereto in any
material respect, the COMPANY and the STOCKHOLDERS shall immediately give notice
of such fact or circumstance to VPI. However, subject to the provisions of
Section 7.8, such notification shall not relieve either the COMPANY or the
STOCKHOLDERS of their respective obligations under this Agreement, and, subject
to the provisions of Section 7.8, at the sole option of VPI, the truth and
accuracy of any and all warranties and representations of the COMPANY, or on
behalf of the COMPANY and of STOCKHOLDERS at the date of this Agreement and on
the Pre-Closing Date and on the Closing Date, contained in this Agreement
(including the Schedules and Annexes hereto) shall be a precondition to the
consummation of this transaction.
7.10 FINAL FINANCIAL STATEMENTS. The COMPANY shall provide prior to the
Closing Date, and VPI shall have had sufficient time to review the unaudited
consolidated balance sheets of the
51
COMPANY as of the end of all fiscal quarters following the Balance Sheet Date,
and the unaudited consolidated statement of income, cash flows and retained
earnings of the COMPANY for all fiscal quarters ended after the Balance Sheet
Date, disclosing no material adverse change in the financial condition of the
COMPANY or the results of its operations from the financial statements as of the
Balance Sheet Date. For the fiscal quarter ending March 31, 1998, such financial
statements shall be delivered to VPI on or before April 21, 1998, unless the
Closing Date shall have occurred on or before April 21, 1998. Except as set
forth on Schedule 7.10, such financial statements shall have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis throughout the periods indicated (except as noted therein). Except as
noted in such financial statements, all of such financial statements will
present fairly the results of operations of the COMPANY for the periods
indicated thereon and shall be for such dates and time periods as required by
Regulation S-X under the 1933 Act and the 1934 Act.
7.11 FURTHER ASSURANCES. The parties hereto agree to execute and deliver,
or cause to be executed and delivered, such further instruments or documents or
take such other action as may be reasonably necessary or convenient to carry out
the transactions contemplated hereby.
7.12 AUTHORIZED CAPITAL. VPI shall maintain its authorized capital stock as
set forth in the Registration Statement filed with the SEC except for such
changes in authorized capital stock as are made to respond to comments made by
the SEC or requirements of any exchange or automated trading system for which
application is made to register the VPI Stock.
7.13 BEST EFFORTS TO CONSUMMATE TRANSACTION. VPI agrees to use its
commercially reasonable best efforts to effectuate the acquisition of the
businesses of the Founding Companies pursuant to the Other Agreements, and the
IPO. Between the date hereof and the Closing Date, VPI agrees that it will take
no action except such actions which are in furtherance of the business of VPI as
described in the Registration Statement. In connection with the closings of the
transactions under the Other Agreements, VPI agrees that it will not waive any
closing condition under any Other Agreement that would result in a Material
Adverse Effect to VPI.
52
7.14 SECTION 85 ELECTIONS. Each of the STOCKHOLDERS and NEWCO hereby agrees
to jointly elect in the prescribed form and within the prescribed time elections
under subsection 85(l) of the Income Tax Act (Canada) at the respective amounts
selected by each STOCKHOLDER to be the proceeds of disposition and the cost of
the COMPANY Stock sold hereunder.
7.15 BRITISH COLUMBIA SECURITIES CONSENTS. VPI and NEWCO shall use their
commercially reasonable best efforts to obtain all necessary rulings, orders or
consents of the British Columbia Securities Commission (the "Securities
Consents") to permit the consummation of the transactions contemplated herein,
including without limitation, the acquisition and disposition of the Dividend
Access Shares and the rights of exchange contained therein, the acquisition of
the VPI Stock, and the disposition of the VPI Stock in circumstances
substantially the same as all other stockholders of the Other Founding
Companies, all in compliance with applicable United States and Canadian
securities laws.
8. CONDITIONS PRECEDENT TO OBLIGATIONS OF STOCKHOLDERS AND COMPANY
The obligations of STOCKHOLDERS and the COMPANY with respect to actions to
be taken on the Pre-Closing Date are subject to the satisfaction or waiver on or
prior to the Pre-Closing Date of all of the following conditions. The
obligations of the STOCKHOLDERS and the COMPANY with respect to actions to be
taken on the Closing Date are subject to the satisfaction or waiver on or prior
to the Closing Date of the conditions set forth in Sections 8.2, 8.3, 8.8 and
8.9. From and after the Pre-Closing Date or, with respect to the conditions set
forth in Sections 8.2, 8.3, 8.8 and 8.9, from and after the Closing Date, all
conditions not satisfied shall be deemed to have been waived, except that no
such waiver shall be deemed to affect the survival of the representations and
warranties of VPI and NEWCO contained in Section 6 hereof:
8.1 REPRESENTATIONS AND WARRANTIES. All representations and warranties of
VPI and NEWCO contained in Section 6 shall be true and correct in all material
respects as of the Pre-Closing
53
Date as though such representations and warranties had been made as of that
time; and a certificate to the foregoing effect dated the Pre-Closing Date and
signed by the President or any Vice President of VPI shall have been delivered
to the STOCKHOLDERS.
8.2 PERFORMANCE OF OBLIGATIONS. All of the terms, covenants and conditions
of this Agreement to be complied with and performed by VPI and NEWCO on or
before the Pre-Closing Date and the Closing Date shall have been duly complied
with and performed in all material respects; and certificates to the foregoing
effect dated the Pre-Closing Date and the Closing Date and signed by the
President or any Vice President of VPI shall have been delivered to the
STOCKHOLDERS.
8.3 NO LITIGATION. No action or proceeding before a court or any other
governmental agency or body shall have been instituted or threatened to restrain
or prohibit the transactions contemplated hereby or the IPO and no governmental
agency or body shall have taken any other action or made any request of the
COMPANY as a result of which the management of the COMPANY deems it inadvisable
to proceed with the transactions hereunder.
8.4 OPINION OF COUNSEL. The COMPANY and the Underwriters shall have
received a corporate opinion letter from counsel for VPI, dated the Pre-Closing
Date, in the form annexed hereto as Annex VI.
8.5 REGISTRATION STATEMENT. The Registration Statement shall have been
declared effective by the SEC and the Underwriters shall have agreed to acquire
on a firm commitment basis, subject to the conditions set forth in the
underwriting agreement, on terms such that the aggregate value of the cash and
the number of shares of VPI Stock to be received by the STOCKHOLDERS is not less
than the Minimum Value set forth on Annex III.
8.6 CONSENTS AND APPROVALS. All necessary consents of and filings with any
governmental authority or agency relating to the consummation of the transaction
contemplated herein shall have been obtained and made, and all consents and
approvals of third parties listed on Schedule 6.9 shall have been obtained.
54
8.7 GOOD STANDING CERTIFICATES. VPI and NEWCO each shall have delivered to
the COMPANY a certificate, dated as of a date no later than ten days prior to
the Pre-Closing Date, duly issued by the Delaware Secretary of State and in each
state or province in which VPI or NEWCO is authorized to do business, showing
that each of VPI and NEWCO is in good standing and authorized to do business and
that all state franchise and/or income tax returns and taxes for VPI and NEWCO,
respectively, for all periods prior to the Pre-Closing Date have been filed and
paid.
8.8 NO MATERIAL ADVERSE CHANGE. No event or circumstance shall have
occurred with respect to VPI or NEWCO which would constitute a Material Adverse
Effect, and VPI and/or NEWCO shall not have suffered any material loss or
damages to any of its properties or assets, whether or not covered by insurance,
which change, loss or damage materially affects or impairs the ability of VPI
and/or NEWCO to conduct its business.
8.9 CLOSING OF IPO. The closing of the sale of the VPI Stock to the
Underwriters in the IPO and the acquisitions of at least eight of the Other
Founding Companies with aggregate earnings before taxes of at least $8 million
for the 12-month period ended December 31, 1997, pursuant to the Other
Agreements shall have occurred simultaneously with the Closing Date hereunder.
8.10 SECRETARY'S CERTIFICATE. The COMPANY shall have received a certificate
or certificates, dated the Pre-Closing Date and signed by the secretary of VPI
and of NEWCO, certifying the truth and correctness of attached copies of VPI's
and NEWCO's respective Certificates of Incorporation (including amendments
thereto), Bylaws (including amendments thereto), and resolutions of the boards
of directors and, if required, the stockholders of VPI and NEWCO approving VPI's
and NEWCO's entering into this Agreement and the consummation of the
transactions contemplated hereby. Such certificate or certificates also shall be
addressed to the Underwriters and copies thereof shall be delivered to the
Underwriters.
8.11 EMPLOYMENT AGREEMENTS. Each of the persons listed on Schedule 8.11
shall have been afforded the opportunity to enter into an employment agreement
substantially in the form of Annex VIII hereto.
55
8.12 DIRECTORS AND OFFICERS INSURANCE. VPI shall have obtained Directors
and Officers liability insurance in amounts that are customary and commercially
reasonable.
8.13 STOCK OPTIONS. VPI shall have established a stock option plan pursuant
to which 6% of the outstanding shares of VPI will be made available for issuance
by the Founding Companies to their employees on a pro rata basis based upon the
respective consideration amounts paid by VPI under this Agreement and the Other
Agreements. The exercise price of all options granted under such stock option
plan as of the Closing Date will be the price per share of VPI Stock in the IPO,
and all such options shall vest in four equal installments commencing on the
first anniversary of the Closing Date and on each of the three anniversaries
thereafter. The terms set forth in the preceding sentence and all other terms of
the options shall be no less favorable than the options made available to the
Other Founding Companies.
8.14 SUPPORT AGREEMENT AND TRUST AGREEMENT. The Support Agreement attached
as Exhibit B of Annex I hereto and the Trust Agreement attached as Exhibit C of
Annex I hereto shall have been executed and delivered by VPI, NEWCO and, where
applicable, the trustee under the Trust Agreement .
9. CONDITIONS PRECEDENT TO OBLIGATIONS OF VPI AND NEWCO
The obligations of VPI and NEWCO with respect to actions to be taken on the
Pre-Closing Date are subject to the satisfaction or waiver on or prior to the
Pre-Closing Date of all of the following conditions. The obligations of VPI and
NEWCO with respect to actions to be taken on the Closing Date are subject to the
satisfaction or waiver on or prior to the Closing Date of the conditions set
forth in Sections 9.2, 9.3, 9.5 and 9.13. From and after the Pre-Closing Date
or, with respect to the conditions set forth in Sections 9.2, 9.3, 9.5 and 9.13,
from and after the Closing Date, all conditions not satisfied shall be deemed to
have been waived, except that no such waiver shall be deemed to affect the
survival of the representations and warranties of the COMPANY contained in
Section 5 hereof.
9.1 REPRESENTATIONS AND WARRANTIES. All representations and warranties of
the STOCKHOLDERS and the COMPANY contained in this Agreement shall be true and
correct in all
56
material respects as of the Pre-Closing Date with the same effect as though such
representations and warranties had been made on and as of such date; and the
STOCKHOLDERS shall have delivered to VPI certificates dated the Pre-Closing Date
and signed by them to such effect.
9.2 PERFORMANCE OF OBLIGATIONS. All of the terms, covenants and conditions
of this Agreement to be complied with or performed by the STOCKHOLDERS and the
COMPANY on or before the Pre-Closing Date or the Closing Date, as the case may
be, shall have been duly performed or complied with in all material respects;
and the STOCKHOLDERS shall have delivered to VPI certificates dated the
Pre-Closing Date and the Closing Date, respectively, and signed by them to such
effect.
9.3 NO LITIGATION. No action or proceeding before a court or any other
governmental agency or body shall have been instituted or threatened to restrain
or prohibit the transactions contemplated hereby or the IPO and no governmental
agency or body shall have taken any other action or made any request of VPI as a
result of which the management of VPI deems it inadvisable to proceed with the
transactions hereunder.
9.4 SECRETARY'S CERTIFICATE. VPI shall have received a certificate, dated
the Pre-Closing Date and signed by the secretary or an assistant secretary of
the COMPANY, certifying the truth and correctness of attached copies of the
Charter Documents and resolutions of the board of directors and the STOCKHOLDERS
approving the COMPANY's entering into this Agreement and the consummation of the
transactions contemplated hereby. Such certificate also shall be addressed to
the Underwriters and a copy thereof shall be delivered to the Underwriters.
9.5 NO MATERIAL ADVERSE EFFECT. No event or circumstance shall have
occurred with respect to the COMPANY which would constitute a Material Adverse
Effect, and the COMPANY shall not have suffered any material loss or damages to
any of its properties or assets, whether or not covered by insurance, which
change, loss or damage materially affects or impairs the ability of the COMPANY
to conduct its business.
57
9.6 STOCKHOLDERS' RELEASE. The STOCKHOLDERS shall have delivered to VPI an
instrument dated the Pre-Closing Date releasing the COMPANY and VPI from (i) any
and all claims of the STOCKHOLDERS against the COMPANY and VPI and (ii)
obligations of the COMPANY and VPI to the STOCKHOLDERS, except for (x) items
specifically identified on Schedules 5.10, 5.11 and 5.16 as being claims of or
obligations to the STOCKHOLDERS, (y) continuing obligations to the STOCKHOLDERS
relating to their employment by the COMPANY and (z) obligations arising under
this Agreement or the transactions contemplated hereby.
9.7 TERMINATION OF RELATED PARTY AGREEMENTS. Except as set forth on
Schedule 9.7, all existing agreements between the COMPANY and the STOCKHOLDERS
not reflecting fair market terms shall have been canceled effective prior to or
as of the Closing Date.
9.8 OPINION OF COUNSEL. VPI shall have received an opinion from Counsel to
the COMPANY and the STOCKHOLDERS, dated the Pre-Closing Date, substantially in
the form annexed hereto as Annex VII, and the Underwriters shall have received a
copy of the same opinion addressed to them.
9.9 CONSENTS AND APPROVALS. All necessary consents of and filings with any
governmental authority or agency relating to the consummation of the
transactions contemplated herein shall have been obtained and made and all
consents and approvals of third parties listed on Schedule 5.24 shall have been
obtained.
9.10 GOOD STANDING CERTIFICATES. The COMPANY shall have delivered to VPI a
certificate, dated as of a date no earlier than ten days prior to the
Pre-Closing Date, duly issued by the appropriate governmental authority in the
COMPANY's province of incorporation and, unless waived by VPI, in each province
in which the COMPANY is authorized to do business, showing the COMPANY is in
good standing and authorized to do business and that all province franchise (if
any) and/or income tax returns and taxes for the COMPANY for all periods prior
to the Pre-Closing have been filed and paid.
58
9.11 REGISTRATION STATEMENT. The Registration Statement shall have been
declared effective by the SEC.
9.12 EMPLOYMENT AGREEMENTS. Each of the persons listed on Schedule 8.11
shall have entered into an employment agreement substantially in the form of
Annex VIII hereto.
9.13 CLOSING OF IPO. The closing of the sale of the VPI Stock to the
Underwriters in the IPO and the acquisitions of at least eight of the Other
Founding Companies with aggregate earnings before taxes of at least $8 million
for the 12-month period ended December 31, 1997, pursuant to the Other
Agreements shall have occurred simultaneously with the Closing Date hereunder.
9.14 INTENTIONALLY DELETED.
9.15 INSURANCE. VPI shall have been named as an additional insured on all
insurance policies of the COMPANY, and certificates of insurance to that effect
shall have been delivered to VPI. VPI shall reimburse the COMPANY for the
incremental cost of having VPI so named as an additional insured.
9.16 LOCKUP AGREEMENT. Each of the COMPANY and the STOCKHOLDERS shall have
signed an agreement with the Underwriters, in form and substance identical to
agreements signed by the Other Founding Companies and the Founding Stockholders
in connection with the Other Agreements, by which the STOCKHOLDERS covenant to
hold all of the VPI Stock acquired hereunder for a period of at least 180 days
after the Closing Date except for transfers to immediate family members, and
trusts for the benefit of STOCKHOLDERS and/or immediate family members, who
agree to be bound by such restrictions on transfer.
59
10. COVENANTS OF VPI AND THE STOCKHOLDERS AFTER CLOSING
10.1 RELEASE FROM GUARANTEES; REPAYMENT OF CERTAIN OBLIGATIONS. VPI shall
use its best efforts to have the STOCKHOLDERS released, contemporaneously with
the Closing Date, from any and all guarantees on any indebtedness that they
personally guaranteed and from any and all pledges of assets that they pledged
to secure such indebtedness for the benefit of the COMPANY, with all such
guarantees on indebtedness being assumed by VPI. In the event that VPI cannot
obtain such releases from the lenders of any such guaranteed indebtedness on the
Closing Date, VPI shall repay all indebtedness of the COMPANY relating to such
personal guarantees within 60 days after the Closing Date. VPI shall indemnify
and hold harmless the STOCKHOLDERS from the payment of any guaranties on any
indebtedness or contractual obligations that the STOCKHOLDERS had incurred prior
to the Pre-Closing Date provided that such indebtedness or obligations are
related to the business of the COMPANY as being conducted at the Pre-Closing
Date.
10.2 INTENTIONALLY DELETED.
10.3 PREPARATION AND FILING OF TAX RETURNS
(i) The COMPANY shall, if possible, file or cause to be filed
all separate Tax Returns of any Acquired Party for all taxable periods
that end on or before the Closing Date. All such Tax Returns shall have
set forth all material items required to be set forth therein and shall
have been prepared in compliance with applicable laws and shall be
true, correct and complete in all material respects. Each STOCKHOLDER
shall pay or cause to be paid all Tax liabilities (in excess of all
amounts already paid with respect thereto or properly accrued or
reserved with respect thereto on the COMPANY Financial Statements and
books and records) required to be shown by such Tax Returns to be due.
(ii) VPI shall file or cause to be filed all consolidated Tax
Returns of, or that include, any Acquired Party for all taxable periods
ending after the Closing Date. VPI shall pay or cause to be paid all
Tax liabilities (in excess of amounts already paid with respect thereto
or
60
properly accrued or reserved with respect thereto on the VPI Financial
Statements and books and records) required to be shown by such Tax
Returns to be due.
(iii) Each party hereto shall, and shall cause its
subsidiaries and component members of a controlled group of
corporations including the COMPANY, as defined in Section 1563 of the
Code, to, provide to each of the other parties hereto such cooperation
and information as any of them reasonably may request in filing any Tax
Return, amended Tax Return or claim for refund, determining a liability
for Taxes or a right to refund of Taxes or in conducting any audit or
other proceeding in respect of Taxes. Such cooperation and information
shall include providing copies of all relevant portions of relevant Tax
Returns, together with relevant accompanying schedules and relevant
work papers, relevant documents relating to rulings or other
determinations by taxing authorities and relevant records concerning
the ownership and Tax basis of property, which such party may possess.
Each party shall make its employees reasonably available on a mutually
convenient basis at its cost to provide explanation of any documents or
information so provided. Subject to the preceding sentence, each party
required to file Tax Returns pursuant to this Agreement shall bear all
costs of filing such Tax Returns.
10.4 APPOINTMENT OF DIRECTORS. The STOCKHOLDERS hereby designate ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ to serve as a director of VPI effective as of the Closing Date.
Representatives of the Founding Companies shall constitute a majority of the
directors of VPI immediately following the Closing Date.
10.5 PRESERVATION OF EMPLOYEE BENEFIT PLANS. Following the Closing Date,
VPI shall not terminate any health insurance, life insurance or 401(k) plan in
effect at the COMPANY until such time as VPI is able to replace such plan with a
plan that is applicable to VPI and all of its then existing subsidiaries. VPI
shall have no obligation to provide replacement plans that have the same terms
and provisions as the existing plans, except as may be required by ERISA or
other applicable law; provided, however, that any new health insurance plan
shall provide for coverage for preexisting
61
conditions for employees of the COMPANY who were covered by the COMPANY's health
insurance plan immediately prior to the Closing Date or as otherwise required by
law.
10.6 MAINTENANCE OF BOOKS. VPI will cause the COMPANY (a) to maintain the
books and records of the COMPANY existing prior to the Pre-Closing Date for a
period of six years after the Pre-Closing Date and (b) to make such books and
records available to the STOCKHOLDERS for any reasonable purpose.
10.7 LIQUIDATION. Each of VPI and NEWCO covenant and agree that it will not
liquidate NEWCO, or terminate the Support Agreement or the Exchange Trust
Agreement, until the earlier of (i) the tenth anniversary of the Closing Date
and (ii) the point in time at which no Dividend Access Shares are outstanding.
11. INDEMNIFICATION
The STOCKHOLDERS, VPI and NEWCO each make the following covenants that are
applicable to them, respectively:
11.1 GENERAL INDEMNIFICATION BY THE STOCKHOLDERS. The STOCKHOLDERS covenant
and agree that they, jointly and severally, will indemnify, defend, protect and
hold harmless VPI, NEWCO and the COMPANY at all times, from and after the date
of this Agreement until the Expiration Date, from and against all losses,
claims, damages, actions, suits, proceedings, demands, assessments, adjustments,
costs and expenses (including specifically, but without limitation, reasonable
attorneys' fees and expenses of investigation) incurred by VPI, NEWCO or the
COMPANY as a result of or arising from (i) any breach of the representations and
warranties of the STOCKHOLDERS or the COMPANY set forth herein or on the
Schedules or certificates delivered in connection herewith, (ii) any breach of
any agreement on the part of the STOCKHOLDERS or the COMPANY under this
Agreement, (iii) any liability under the 1933 Act, the 1934 Act or other federal
or state law or regulation, at common law or otherwise, arising out of or based
upon any untrue statement or alleged untrue statement of a material fact
relating solely to the COMPANY or the STOCKHOLDERS, and
62
provided to VPI or its counsel by the COMPANY or the STOCKHOLDERS, contained in
the Registration Statement or any prospectus forming a part thereof, or any
amendment thereof or supplement thereto, or arising out of or based upon any
omission or alleged omission to state therein a material fact relating solely to
the COMPANY or the STOCKHOLDERS required to be stated therein or necessary to
make the statements therein not misleading, or (iv) the matters described on
Schedule 11.1(iv) (relating to specifically identified matters such as ongoing
claims and/or litigation), which Schedule shall be prepared by VPI, provided,
however, (A) that in the case of any indemnity arising pursuant to clause (iii)
such indemnity shall not inure to the benefit of VPI, NEWCO or the COMPANY to
the extent that such untrue statement (or alleged untrue statement) was made in,
or omission (or alleged omission) occurred in, any preliminary prospectus and
the STOCKHOLDERS provided, in writing, corrected information to VPI counsel and
to VPI for inclusion in the final prospectus, and such information was not so
included or properly delivered, and (B) that no STOCKHOLDER shall be liable for
any indemnification obligation pursuant to this Section 11.1 to the extent
attributable to a breach of any representation, warranty or agreement made
herein individually by any other STOCKHOLDER.
11.2 INDEMNIFICATION BY VPI. VPI covenants and agrees that it will
indemnify, defend, protect and hold harmless the STOCKHOLDERS at all times from
and after the date of this Agreement until the Expiration Date, from and against
all losses, claims, damages, actions, suits, proceedings, demands, assessments,
adjustments, costs and expenses (including specifically, but without limitation,
reasonable attorneys' fees and expenses of investigation) incurred by the
STOCKHOLDERS as a result of or arising from (i) any breach by VPI or NEWCO of
their representations and warranties set forth herein or on the Schedules or
certificates attached hereto, (ii) any breach of any agreement on the part of
VPI or NEWCO under this Agreement, (iii) any liabilities which the STOCKHOLDERS
may incur due to VPI's or NEWCO's failure to be responsible for the liabilities
and obligations of the COMPANY as provided in Section 1 hereof (except to the
extent that VPI or NEWCO has claims against the STOCKHOLDERS under Section 11.1
hereof by reason of
63
such liabilities); (iv) any liability under the 1933 Act, the 1934 Act or
other federal or state law or regulation, at common law or otherwise, arising
out of or based upon any untrue statement or alleged untrue statement of a
material fact relating to VPI, NEWCO or any of the Other Founding Companies
contained in any preliminary prospectus, the Registration Statement or any
prospectus forming a part thereof, or any amendment thereof or supplement
thereto, or arising out of or based upon any omission or alleged omission to
state therein a material fact relating to VPI or NEWCO or any of the Other
Founding Companies required to be stated therein or necessary to make the
statements therein not misleading, or (v) the matters described on Schedule
11.2(v) (relating to specifically identified matters including the release of
the guarantees pursuant to Section 10.1 hereof).
11.3 THIRD PERSON CLAIMS. Promptly after any party hereto (hereinafter the
"Indemnified Party") has received notice of or has knowledge of any claim by a
person not a party to this Agreement ("Third Person"), or the commencement of
any action or proceeding by a Third Person, the Indemnified Party shall, as a
condition precedent to a claim with respect thereto being made against any party
obligated to provide indemnification pursuant to Section 11.1 or 11.2 hereof
(hereinafter the "Indemnifying Party"), give the Indemnifying Party written
notice of such claim or the commencement of such action or proceeding. Such
notice shall state the nature and the basis of such claim and a reasonable
estimate of the amount thereof. The Indemnifying Party shall have the right to
defend and settle (subject to the consent of the Indemnified Party, as
hereinafter provided), at its own expense and by its own counsel, any such
matter so long as the Indemnifying Party pursues the same in good faith and
diligently, provided that the Indemnifying Party shall not settle any criminal
proceeding without the written consent of the Indemnified Party. If the
Indemnifying Party undertakes to defend or settle, it shall promptly notify the
Indemnified Party of its intention to do so, and the Indemnified Party shall
cooperate with the Indemnifying Party and its counsel in the defense thereof and
in any settlement thereof. Such cooperation shall include, but shall not be
limited to, furnishing the Indemnifying Party with any books, records or
information reasonably requested by the Indemnifying Party that are in the
Indemnified Party's possession or control. All Indemnified Parties shall use the
64
same counsel, which shall be the counsel selected by the Indemnifying Party,
provided that if counsel to the Indemnifying Party shall have a conflict of
interest that prevents counsel for the Indemnifying Party from representing the
Indemnified Party, the Indemnified Party shall have the right to participate in
such matter through counsel of its own choosing and the Indemnifying Party will
reimburse the Indemnified Party for the reasonable expenses of its counsel.
Further, absent a conflict, the Indemnified Party may select counsel and have
such counsel participate in such matter at the sole cost of the Indemnified
Party. After the Indemnifying Party has notified the Indemnified Party of its
intention to undertake to defend or settle any such asserted liability, and for
so long as the Indemnifying Party diligently pursues such defense, the
Indemnifying Party shall not be liable for any additional legal expenses
incurred by the Indemnified Party in connection with any defense or settlement
of such asserted liability, except (i) as set forth in the preceding sentence
and (ii) to the extent such participation is requested in writing by the
Indemnifying Party, in which event the Indemnified Party shall be reimbursed by
the Indemnifying Party for reasonable additional legal expenses and
out-of-pocket expenses. If the Indemnifying Party desires to accept a final and
complete settlement of any such Third Person claim in which no admission of
wrongdoing is required of the Indemnified Party and the Indemnified Party
refuses to consent to such settlement, then the Indemnifying Party's liability
under this Section with respect to such Third Person claim shall be limited to
the amount so offered in settlement by said Third Person. If the Indemnifying
Party does not undertake to defend such matter to which the Indemnified Party is
entitled to indemnification hereunder, or fails diligently to pursue such
defense, the Indemnified Party may undertake such defense through counsel of its
choice, at the cost and expense of the Indemnifying Party, and the Indemnifying
Party shall reimburse the Indemnified Party for the amount paid in such
settlement and any other liabilities or expenses incurred by the Indemnified
Party in connection therewith, provided, however, that under no circumstances
shall the Indemnified Party settle any Third Person claim without the written
consent of the Indemnifying Party, which consent shall not be unreasonably
withheld, conditioned or delayed. All settlements hereunder shall effect a
complete release of the Indemnified Party, unless the Indemnified Party
otherwise agrees
65
in writing. The parties hereto will make appropriate adjustments for insurance
proceeds in determining the amount of any indemnification obligation under this
Section.
11.4 EXCLUSIVE REMEDY. The indemnification provided for in this Section 11
shall (except as prohibited by ERISA) be the exclusive remedy in any action
seeking damages or any other form of monetary relief brought by any party to
this Agreement against another party relating to this Agreement or the
preparation of the Registration Statement and the IPO, provided, however, that
nothing herein shall be construed to limit the right of a party, in a proper
case, to seek injunctive relief for a breach of this Agreement. The obligations
set forth herein are contingent upon similar obligations being incorporated in
all of the Other Agreements.
11.5 LIMITATIONS ON INDEMNIFICATION. VPI, NEWCO and the other persons or
entities indemnified pursuant to Section 11.1 shall not assert any claim for
indemnification hereunder against the STOCKHOLDERS until such time as, and
solely to the extent that, the aggregate of all claims which such persons may
have against the STOCKHOLDERS shall exceed 2.0% of the sum of (i) the cash paid
to the STOCKHOLDERS and (ii) the value of the VPI Stock delivered to the
STOCKHOLDERS (the "Indemnification Threshold"), provided, however, that VPI,
NEWCO and the other persons or entities indemnified pursuant to Section 11.1 may
assert and shall be indemnified for any claim under Section 11.l(iv) at any
time, regardless of whether the aggregate of all claims which such persons may
have against the STOCKHOLDERS exceeds the Indemnification Threshold, it being
understood that the amount of any such claim under Section 11.1(iv) shall not be
counted towards the Indemnification Threshold. The STOCKHOLDERS shall not assert
any claim for indemnification hereunder against VPI or NEWCO until such time as,
and solely to the extent that, the aggregate of all claims which the
STOCKHOLDERS may have against VPI and NEWCO shall exceed $50,000, provided,
however, that the STOCKHOLDERS and the other persons or entities indemnified
pursuant to Section 11.2 may assert and shall be indemnified for any claim under
Section 11.2(v) at any time, regardless of whether the aggregate of all claims
which such persons may have against any of VPI and NEWCO exceeds $50,000, it
being understood that the amount of any such claim under Section
66
11.2(v) shall not be counted towards such $50,000 amount. No person shall be
entitled to indemnification under this Section 11 if and to the extent that: (a)
such person's claim for indemnification is directly or indirectly related to a
breach by such person of any representation, warranty, covenant or other
agreement set forth in this Agreement; or (b) such person receives a tax benefit
as a result of the claim or loss for which indemnification is sought (i.e., the
amount of such claim or loss for which indemnification is provided hereunder
shall be reduced by the amount of such tax benefit).
Notwithstanding any other term of this Agreement (except the proviso to
this sentence), no STOCKHOLDER shall be liable under this Section 11 for an
amount which exceeds the amount of proceeds received by such STOCKHOLDER in
connection with the transactions contemplated hereby, provided that a
STOCKHOLDER's indemnification obligations pursuant to Section 11.1(iv) shall not
be limited. Indemnity obligations hereunder may be satisfied through the payment
of cash or the delivery of VPI Stock, or a combination thereof, at the
STOCKHOLDER's election. For purposes of calculating the value of the VPI Stock
received or delivered by a STOCKHOLDER (for purposes of determining the
Indemnification Threshold, the limitation on indemnity set forth in the second
preceding sentence and the amount of any indemnity paid), VPI Stock shall be
valued at its initial public offering price as set forth in the Registration
Statement. Any indemnification payment made by the STOCKHOLDERS pursuant to this
Section 11 shall be deemed to be a reduction in the consideration received by
the STOCKHOLDERS pursuant to Section 3.
12. TERMINATION OF AGREEMENT
12.1 TERMINATION. This Agreement may be terminated by written notice from
the party asserting termination to the other parties at any time prior to the
Closing Date solely:
(i) by mutual consent of the boards of directors of VPI and the COMPANY;
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(ii) by the STOCKHOLDERS or the COMPANY (acting through its board of
directors), on the one hand, or by VPI (acting through its board of directors),
on the other hand, if the transactions contemplated by this Agreement to take
place at the Closing shall not have been consummated by June 30, 1998, unless
the failure of such transactions to be consummated is due to the willful failure
of the party seeking to terminate this Agreement to perform any of its
obligations under this Agreement to the extent required to be performed by it
prior to or on the Closing Date;
(iii) by the STOCKHOLDERS or COMPANY, on the one hand, or by VPI, on the
other hand, if a breach or default shall be made by the other party in the
observance or in the due and timely performance of any of the covenants,
agreements or conditions contained herein (including but not limited to the
condition that the aggregate value of the cash and the number of shares of
Restricted Common Stock to be received by the STOCKHOLDERS is not less than the
Minimum Value set forth on Annex III), which breach or default has a Material
Adverse Effect, and the curing of such default shall not have been made on or
before the Closing Date;
(iv) pursuant to Section 7.8 hereof; or
(v) pursuant to Section 4 hereof.
12.2 LIABILITIES IN EVENT OF TERMINATION. Except as provided in Section 7.8
hereof, the termination of this Agreement will in no way limit any obligation or
liability of any party based on or arising from a breach or default by such
party with respect to any of its representations, warranties, covenants or
agreements contained in this Agreement including, but not limited to, legal and
audit costs and out of pocket expenses relating to the transactions contemplated
hereby. No party hereto shall be liable to any other party if the Agreement is
terminated under Sections 12.1(i), (ii) (except as set forth therein), (iv) or
(v), provided, however (and notwithstanding anything in Section 18.7 to the
contrary), that VPI shall reimburse the COMPANY for the reasonable out of pocket
fees and expenses of its attorneys and accountants incurred in connection with
the transactions contemplated by this Agreement in the event that this Agreement
is terminated by the COMPANY or the STOCKHOLDERS pursuant to Section 12.1(iii);
and further provided,
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however (and notwithstanding anything in Section 18.7 to the contrary), that the
COMPANY and the STOCKHOLDERS shall reimburse VPI for the reasonable out of
pocket fees and expenses of its attorneys and accountants incurred in connection
with the transactions contemplated by this Agreement (but excluding the
transactions contemplated by the Other Agreements) in the event that this
Agreement is terminated by VPI pursuant to Section 12.1(iii).
13. NONCOMPETITION
13.1 PROHIBITED ACTIVITIES. Provided that VPI shall have complied with and
performed all of its obligations hereunder in all material respects and the
STOCKHOLDERS shall have received payment in full of the consideration described
in Section 3, each of the STOCKHOLDERS shall not, during the Noncompetition
Period, for any reason whatsoever, directly or indirectly, for themselves or on
behalf of or in conjunction with any other person, persons, company,
partnership, corporation or business of whatever nature:
(i) engage, as an officer, director, shareholder, owner, partner,
joint venturer, or in a managerial capacity, whether as an employee,
independent contractor, consultant or advisor, or as a sales
representative, in any residential property management, rental or sales
business or hotel management business in direct competition with VPI or any
of its subsidiaries, within 100 miles of Whistler, British Columbia, and
the other locations in which VPI or the COMPANY, or any of their
subsidiaries, conduct a residential property management, rental or sales
business or hotel management business (the "Territory");
(ii) call upon any person who is, at that time, within the Territory,
an employee of VPI (including the subsidiaries thereof) in a sales
representative or managerial capacity for the purpose or with the intent of
enticing such employee away from or out of the employ of VPI (including the
subsidiaries thereof), provided that each STOCKHOLDER shall be permitted to
call upon and hire any member of his or her immediate family;
69
(iii) call upon any person or entity which is at that time, or which
has been, within one (l) year prior to that time, a customer of VPI
(including the subsidiaries thereof), of the COMPANY or of any of the Other
Founding Companies within the Territory for the purpose of providing
residential property management, rental or sales services or hotel
management services to property owners and/or renters in direct competition
with VPI within the Territory;
(iv) call upon any prospective acquisition candidate, on any
STOCKHOLDER's own behalf or on behalf of any competitor in the residential
property management, rental or sales business or hotel management business,
which candidate, to the actual knowledge of such STOCKHOLDER after due
inquiry, was called upon by VPI (including the subsidiaries thereof) or for
which, to the actual knowledge of such STOCKHOLDER after due inquiry, VPI
(or any subsidiary thereof) made an acquisition analysis, for the purpose
of acquiring such entity, unless VPI (or any subsidiary thereof) has
expressly declined to pursue such acquisition candidate or at least one (1)
year has elapsed since VPI (or any subsidiary thereof) has taken any action
with respect to pursuing such acquisition candidate; or
(v) disclose customers, whether in existence or proposed, of the
COMPANY to any person, firm, partnership, corporation or business for any
reason or purpose whatsoever except to the extent that the COMPANY has in
the past disclosed such information to the types of persons to whom
disclosure is then presently contemplated for valid business reasons.
Notwithstanding the above, the foregoing covenant shall not be deemed to
prohibit any STOCKHOLDER from (A) acquiring as an investment not more than two
percent (2%) of the capital stock of a competing business whose stock is traded
on a national securities exchange or over-the-counter or (B) engaging in
business as a real estate broker, other than as an employee of the COMPANY while
employed by the COMPANY, in any location other than Nantucket Island after any
termination of STOCKHOLDER'S employment with the COMPANY.
13.2 DAMAGES. Because of the difficulty of measuring economic losses to VPI
as a result of a breach of the foregoing covenant, and because of the immediate
and irreparable damage that could be caused to VPI for which it would have no
other adequate remedy, each STOCKHOLDER agrees that
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the foregoing covenant may be enforced by VPI in the event of breach by such
STOCKHOLDER, by injunctions and restraining orders.
13.3 REASONABLE RESTRAINT. It is agreed by the parties hereto that the
foregoing covenants in this Section 13 impose a reasonable restraint on the
STOCKHOLDERS in light of the activities and business of VPI (including the
subsidiaries thereof) on the date of the execution of this Agreement and the
current plans of VPI (including VPI's subsidiaries); but it is also the intent
of VPI and the STOCKHOLDERS that such covenants be construed and enforced in
accordance with the changing locations of VPI (including VPI's other
subsidiaries) from the date hereof through the Noncompetition Period. For
example, if, during the Noncompetition Period, VPI (including VPI's other
subsidiaries) establishes new locations for its current activities or business
in addition to the locations currently established therefor, then the
STOCKHOLDERS will be precluded from soliciting customers or employees from such
new location and from directly competing within 100 miles of such new
location(s) through the term of the Noncompetition Period.
It is further agreed by the parties hereto that, in the event that any
STOCKHOLDER shall enter into a business or pursue other activities not in
competition with VPI (including VPI's other subsidiaries), or similar
activities, or business in locations the operation of which, under such
circumstances, does not violate clause (i) of Section 13.1, and in any event
such new business, activities or location are not in violation of this Section
13 or of such STOCKHOLDER's obligations under this Section 13, if any, such
STOCKHOLDER shall not be chargeable with a violation of this Section 13 if VPI
(including VPI's subsidiaries) shall thereafter enter the same, similar or a
competitive (i) business, (ii) course of activities, or (iii) location, as
applicable.
13.4 SEVERABILITY; REFORMATION. The covenants in this Section 13 are
severable and separate, and the unenforceability of any specific covenant shall
not affect the provisions of any other covenant. Moreover, in the event any
court of competent jurisdiction shall determine that the scope, time or
territorial restrictions set forth are unreasonable, then it is the intention of
the parties that such
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restrictions be enforced to the fullest extent which the court deems reasonable,
and the Agreement shall thereby be reformed.
13.5 INDEPENDENT COVENANT. Subject to the introductory clause of Section
13.1, all of the covenants in this Section 13 shall be construed as an agreement
independent of any other provision in this Agreement, and the existence of any
claim or cause of action of any STOCKHOLDER against VPI (including the
subsidiaries thereof), whether predicated on this Agreement or otherwise, shall
not constitute a defense to the enforcement by VPI of such covenants. It is
specifically agreed that the Noncompetition Period, during which the agreements
and covenants of each STOCKHOLDER made in this Section 13 shall be effective,
shall be computed by excluding from such computation any time during which a
court of competent jurisdiction or other arbitrator or mediator has determined
that such STOCKHOLDER is in violation of any provision of this Section 13. The
covenants contained in Section 13 shall have no effect if the transactions
contemplated by this Agreement are not consummated.
13.6 MATERIALITY. The COMPANY and the STOCKHOLDERS hereby agree that the
covenants in this Section 13 are a material and substantial part of this
transaction.
13.7 LIMITATION. In the event that any STOCKHOLDER who is employed by VPI
or the COMPANY pursuant to an employment agreement is terminated without cause
(as defined in such employment agreement), notwithstanding the definition of
"Noncompetition Period" in Section 18.17, the provisions of this Section 13
shall not be valid or enforceable by VPI if such STOCKHOLDER waives the
STOCKHOLDER's right to receive severance compensation under such employment
agreement. In the event such employment agreement is terminated as a result of a
material breach by the COMPANY of the employment agreement, the provisions of
this Section 13 likewise shall not be valid or enforceable.
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14. NONDISCLOSURE OF CONFIDENTIAL INFORMATION
14.1 STOCKHOLDERS. The STOCKHOLDERS recognize and acknowledge that they had
in the past, currently have, and in the future may possibly have, access to
certain confidential information of the COMPANY, the Other Founding Companies,
and/or VPI, such as operational policies, and pricing and cost policies that are
valuable, special and unique assets of the COMPANY's, the Other Founding
Companies' and/or VPI's respective businesses. The STOCKHOLDERS agree that they
shall not use, except in connection with the transactions contemplated hereby,
or disclose such confidential information to any person, firm, corporation,
association or other entity for any purpose or reason whatsoever, except
disclosures (a) to authorized representatives of VPI, (b) following the Closing,
by the STOCKHOLDERS as is required in the course of performing their duties for
VPI or NEWCO and (c) to counsel and other advisors, provided that such advisors
(other than counsel) agree to the confidentiality provisions of this Section
14.1, unless (i) such information is or becomes known to the public generally or
to businesses operating in the residential property management, rental or sales
industry through no fault of the STOCKHOLDERS, (ii) disclosure is required by
law or the order of any governmental authority under color of law, provided,
however, that prior to disclosing any information pursuant to this clause (ii),
the STOCKHOLDERS shall, if possible, give two days' prior written notice thereof
to VPI and provide VPI with the opportunity within such two-day period to
contest such disclosure, or (iii) the disclosing party reasonably believes that
such disclosure is required in connection with the defense of a lawsuit against
the disclosing party. In the event of a breach or threatened breach by any of
the STOCKHOLDERS of the provisions of this Section, VPI shall be entitled to an
injunction restraining such STOCKHOLDERS from disclosing, in whole or in part,
such confidential information. Nothing herein shall be construed as prohibiting
VPI from pursuing any other available remedy for such breach or threatened
breach, including the recovery of damages. In the event the transactions
contemplated by this Agreement are not consummated, STOCKHOLDERS shall have none
of the above-mentioned restrictions on their ability to disseminate confidential
information with respect to the COMPANY.
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14.2 VPI AND NEWCO. VPI and NEWCO recognize and acknowledge that they had
in the past and currently have access to certain confidential information of the
COMPANY, such as operational policies, and pricing and cost policies that are
valuable, special and unique assets of the COMPANY's business. VPI and NEWCO
agree that, prior to the Closing, or if the transactions contemplated by this
Agreement are not consummated, they will not use, except in connection with the
transactions contemplated hereby, or disclose such confidential information to
any person, firm, corporation, association or other entity for any purpose or
reason whatsoever, except disclosures (a) to authorized representatives of the
COMPANY, (b) to counsel and other advisors; provided, however, that such
advisors (other than counsel) agree to the confidentiality provisions of this
Section 14.2 and (c) to the Other Founding Companies and their representatives
pursuant to Section 7.1(a), unless (i) such information becomes known to the
public generally through no fault of VPI or NEWCO, (ii) disclosure is required
by law or the order of any governmental authority under color of law; provided,
however, that prior to disclosing any information pursuant to this clause (ii),
VPI and NEWCO shall, unless otherwise required by law or such order, give two
days' prior written notice thereof to the COMPANY and the STOCKHOLDERS and
provide the COMPANY and the STOCKHOLDERS with the opportunity within such
two-day period to contest such disclosure, or (iii) the disclosing party
reasonably believes that such disclosure is required in connection with the
defense of a lawsuit against the disclosing party. VPI will disclose
confidential information relating to the COMPANY to the Other Founding Companies
only if such companies have agreed, in advance, to treat such information as
confidential. In the event of a breach or threatened breach by VPI or NEWCO of
the provisions of this Section, the COMPANY and the STOCKHOLDERS shall be
entitled to an injunction restraining VPI and NEWCO from disclosing, in whole or
in part, such confidential information. Nothing herein shall be construed as
prohibiting the COMPANY and the STOCKHOLDERS from pursuing any other available
remedy for as such breach or threatened breach, including the recovery of
damages.
14.3 DAMAGES. Because of the difficulty of measuring economic losses as a
result of the breach of the foregoing covenants in Section 14.1 and 14.2, and
because of the immediate and
74
irreparable damage that would be caused for which they would have no other
adequate remedy, the parties hereto agree that, in the event of a breach by any
of them of the foregoing covenants, the covenant may be enforced against the
other parties by injunctions and restraining orders.
14.4 SURVIVAL. The obligations of the parties under this Article 14 shall
survive the termination of this Agreement for a period of three years from (a)
the Closing Date if the transactions contemplated hereby are consummated or (b)
the date hereof if the transactions contemplated hereby are not consummated.
14.5 RETURN OF DATA SUBMITTED. Upon termination of this Agreement for any
reason, VPI will cause the return to the COMPANY of all data, and all copies
thereof, submitted to VPI or its agents pursuant to this Agreement.
15. TRANSFER RESTRICTIONS
15.1 TRANSFER RESTRICTIONS. Except for transfers to immediate family
members who agree to be bound by the restrictions set forth in this Section 15.1
(or trusts for the benefit of the STOCKHOLDERS or family members, the trustees
of which so agree), for a period of one year after the Closing Date, except
pursuant to Section 17 hereof, none of the STOCKHOLDERS shall sell, assign,
exchange, transfer, distribute or otherwise dispose of any shares of VPI Stock
received by the STOCKHOLDERS pursuant to Section 2. The certificates evidencing
the Restricted Common Stock delivered to the STOCKHOLDERS pursuant to Section 2
of this Agreement shall bear a legend substantially in the form set forth below
and containing such other information as VPI may deem necessary or appropriate:
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, ASSIGNED, EXCHANGED,
TRANSFERRED, DISTRIBUTED, APPOINTED OR OTHERWISE DISPOSED OF, AND THE ISSUER
SHALL NOT BE REQUIRED TO GIVE EFFECT TO ANY ATTEMPTED SALE, ASSIGNMENT,
EXCHANGE, TRANSFER, DISTRIBUTION, APPOINTMENT OR OTHER DISPOSITION PRIOR TO
[first anniversary of Closing Date]. UPON THE WRITTEN REQUEST OF THE HOLDER OF
THIS CERTIFICATE, THE ISSUER AGREES TO REMOVE THIS RESTRICTIVE LEGEND (AND ANY
STOP ORDER PLACED WITH THE TRANSFER AGENT) AFTER THE DATE SPECIFIED ABOVE.
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15.2 CERTAIN TRANSFERS. Except for transfers to family members who agree to
be bound by the restrictions set forth in Section 15.1 (or trusts for the
benefit of the STOCKHOLDERS or family members, the trustees of which so agree)
and except pursuant to Section 17 hereof, regardless of whether transfers of
such shares are restricted pursuant to the terms of this Agreement, during the
two-year period commencing on the Closing Date, the STOCKHOLDERS shall not sell,
assign, exchange, transfer, distribute or otherwise dispose of, in any
transaction or series of transactions involving more than 5,000 shares (a
"Future Sale"), any shares of VPI Stock received by the STOCKHOLDERS pursuant to
Section 2 except in accordance with this Section 15.2. If any STOCKHOLDER
desires to make a Future Sale, the STOCKHOLDER shall first provide written
notice thereof to VPI. VPI shall have three (3) days after receipt of such
notice by VPI in which to arrange for a private sale of such shares through one
or more of the Underwriters, and such STOCKHOLDER may not make the Future Sale
except pursuant to such arrangements; provided, however, that the terms of such
sale (including commissions) are at least as favorable as the terms the
STOCKHOLDER would have received in the absence of this Section 15.2. If VPI has
not successfully arranged for a private sale of such shares through one or more
the Underwriters within such three (3) day period, the restrictions of this
Section 15.2 shall not apply to such Future Sale. Any subsequent Future Sales by
such STOCKHOLDER must be made in accordance with this Section 15.2. The terms of
this Section 15.2 shall not apply to pledges of shares of VPI Stock.
16. SECURITIES LAW REPRESENTATIONS
The STOCKHOLDERS acknowledge that the shares of VPI Stock to be delivered
to the STOCKHOLDERS pursuant to this Agreement have not been registered under
the 1933 Act and therefore may not be resold without compliance with the 1933
Act and without compliance with the Securities Act (British Columbia). The VPI
Stock to be acquired by such STOCKHOLDERS pursuant to this Agreement is being
acquired solely for their own respective accounts, for investment purposes only,
and with no present intention of distributing, selling
76
or otherwise disposing of it in connection with a distribution. The
STOCKHOLDERS acknowledge that VPI and NEWCO are not now, and may never become,
reporting issuers in the Province of British Columbia, and as a result, the
Dividend Access Shares and the VPI Stock will be issued either pursuant to a
statutory exemption, or an order of the British Columbia Securities Commission
granting an exemption, from the prospectus and registration requirements
contained in the Securities Act and thereafter may be subject to indefinite
resale restrictions and may not be resold except pursuant to an exemption from
the prospectus and registration requirements of the Securities Act (British
Columbia) or an order of the British Columbia Securities Commission, if any. In
the event that the Closing occurs without the requisite order of the British
Columbia Securities Commission granting VPI or NEWCO the right to issue the VPI
Stock to the STOCKHOLDERS without the requirement to file a prospectus under the
Securities Act (British Columbia), the STOCKHOLDERS covenant and agree (I) not
to exercise any of the rights attached to the Dividend Access Shares to obtain
VPI Stock unless the issue and delivery of the VPI Stock can be effected
pursuant to an exemption from the prospectus and registration requirements of
the Securities Act (British Columbia) and (ii) not to sell or otherwise dispose
of any of the Dividend Access Shares unless the transferee has provided a
similar acknowledgment and covenant to VPI and NEWCO.
16.1 COMPLIANCE WITH LAW. The STOCKHOLDERS covenant, warrant and represent
that none of the shares of VPI Stock issued to such STOCKHOLDERS will be
offered, sold, assigned, pledged, hypothecated, transferred or otherwise
disposed of except after full compliance with all of the applicable provisions
of the 1933 Act, the rules and regulations of the SEC and applicable state and
provincial securities laws. All of the VPI Stock shall bear the following legend
in addition to the legend required under Section 15 of this Agreement:
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THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933 (THE "ACT") AND MAY ONLY BE SOLD OR OTHERWISE TRANSFERRED IF THE HOLDER
HEREOF COMPLIES WITH THE ACT AND OTHER APPLICABLE SECURITIES LAWS.
16.2 ECONOMIC RISK; SOPHISTICATION. Each of the STOCKHOLDERS is able to
bear the economic risk of an investment in the VPI Stock acquired pursuant to
this Agreement and can afford to sustain a total loss of such investment and has
such knowledge and experience in financial and business matters that he or she
is capable of evaluating the merits and risks of the proposed investment in the
VPI Stock. The STOCKHOLDERS have had an adequate opportunity to ask questions
and receive answers from the officers of VPI concerning any and all matters
relating to the transactions described herein including, without limitation, the
background and experience of the current and proposed officers and directors of
VPI, the plans for the operations of the business of VPI, the business,
operations and financial condition of the Founding Companies other than the
COMPANY, and any plans for additional acquisitions and the like. The
STOCKHOLDERS have asked any and all questions in the nature described in the
preceding sentence and all questions have been answered to their satisfaction.
17. REGISTRATION RIGHTS
17.1 PIGGYBACK REGISTRATION RIGHTS. At any time following the Closing Date,
whenever VPI proposes to register any VPI Stock for its own or others' account
under the 1933 Act, other than (i) any shelf registration of shares to be used
as consideration for acquisitions of additional businesses by VPI and (ii)
registrations relating to employee benefit plans, VPI shall give each of the
STOCKHOLDERS prompt written notice of its intent to do so. Upon the written
request of any of the STOCKHOLDERS given within 30 days after receipt of such
notice, VPI shall cause to be included in such registration all of the VPI Stock
into which the Dividend Access Shares are exchangeable issued to such
STOCKHOLDER pursuant to this Agreement which any such STOCKHOLDER requests,
provided that VPI shall have the right to reduce the number of shares
78
included in such registration to the extent that inclusion of such shares could,
in the reasonable opinion of tax counsel to VPI or its independent auditors,
jeopardize the status of the transactions contemplated hereby and by the
Registration Statement as an exchange pursuant to which gain is not recognized
under Section 351(a) of the Code. In addition, if VPI is advised in writing in
good faith by any managing underwriter of an underwritten offering of the
securities being offered pursuant to any registration statement under this
Section 17.1 that the number of shares to be sold by persons other than VPI is
greater than the number of such shares which can be offered without adversely
affecting the offering, VPI may reduce pro rata the number of shares offered for
the accounts of such persons (based upon the number of shares desired to be sold
by such person) to a number deemed satisfactory by such managing underwriter,
provided, however, that for each such offering made by VPI after the IPO, such
reduction shall be made first by reducing the number of shares to be sold by
persons other than VPI, the STOCKHOLDERS and the stockholders of the Other
Founding Companies who receive shares of VPI Stock pursuant to the Other
Agreements (collectively, the STOCKHOLDERS and the stockholders of the other
Founding Companies who receive shares of VPI Stock pursuant to the Other
Agreements being referred to herein as the "Founding Stockholders"), and
thereafter, if a further reduction is required, by reducing the number of shares
to be sold by the Founding Stockholders on a pro rata basis based on the number
of shares proposed to be registered by each of the Founding Stockholders.
17.2 DEMAND REGISTRATION RIGHTS. At any time after the date two years after
the Closing Date, the Holders of a majority of the shares of VPI Stock into
which the Dividend Access Shares are exchangeable pursuant to this Agreement and
the VPI Stock issued pursuant to the Other Agreements which have not been
previously registered or sold and which are not entitled to be sold under Rule
144(k) (or any similar or successor provision) promulgated under the 1933 Act
may request in writing (the "Demand Registration Request") that VPI file a
registration statement under the 1933 Act covering the registration of up to all
of the shares of VPI Stock into which the Dividend Access Shares are
exchangeable pursuant to this Agreement and the VPI Stock issued
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pursuant to the Other Agreements then held by such Founding Stockholders (a
"Demand Registration"). Within ten (10) days of the receipt of the Demand
Registration Request, VPI shall give written notice of such request to all other
Founding Stockholders and shall, as soon as practicable but in no event later
than 45 days after the Demand Registration Request, file and use its best
efforts to cause to become effective a registration statement covering all
shares requested to be registered pursuant to this Section 17.2. VPI shall be
obligated to effect only one Demand Registration for all Founding Stockholders.
Notwithstanding the foregoing paragraph, following the Demand Registration
Request a majority of VPI's disinterested directors (i.e., directors who have
not demanded or elected to sell shares in any such public offering) may defer
the filing of the registration statement for a 60-day period if such deferral is
deemed by such directors to be in the best interests of VPI.
If immediately prior to the Demand Registration Request VPI has fixed plans
to file within 60 days after receipt of the Demand Registration Request a
registration statement covering the sale of any of its securities in a public
offering under the 1933 Act, no registration of the Founding Stockholders' VPI
Stock or VPI Stock into which the Dividend Access Shares are exchangeable shall
be initiated under this Section 17.2 until 90 days after the effective date of
such registration unless VPI is no longer proceeding diligently to effect such
registration (in which case the delay contemplated by this sentence would not be
applicable); provided that VPI shall provide the Founding Stockholders the right
to participate in such public offering pursuant to, and subject to, Section 17.1
hereof.
17.3 REGISTRATION PROCEDURES. All expenses incurred in connection with the
registrations under this Article 17 (including all registration, filing,
qualification, legal, printer and accounting fees, but excluding underwriting
commissions and discounts), shall be borne by VPI. In connection with
registrations under Sections 17.1 and 17.2, VPI shall (i) use its best efforts
to prepare and file with the SEC as soon as reasonably practicable, a
registration statement with respect to the VPI Stock and the VPI Stock into
which the Dividend Access Shares are exchangeable and use its best efforts to
cause such registration to promptly become and remain effective for a period of
at least 45
80
days (or such shorter period during which the Founding Stockholders shall have
sold all VPI Stock and the VPI Stock into which the Dividend Access Shares are
exchangeable which they requested to be registered); (ii) use its best efforts
to register and qualify the VPI Stock and the VPI Stock into which the Dividend
Access Shares are exchangeable covered by such registration statement under
applicable state securities laws as the Holders shall reasonably request for the
distribution for the VPI Stock and the VPI Stock into which the Dividend Access
Shares are exchangeable; and (iii) take such other actions as are reasonable and
necessary to comply with the requirements of the 1933 Act and the regulations
thereunder to enable the Founding Stockholders to sell their shares pursuant
thereto.
17.4 UNDERWRITING AGREEMENT. In connection with each registration pursuant
to Sections 17.1 and 17.2 covering an underwritten registered public offering,
VPI and each participating Holder agree to enter into a written agreement with
the managing underwriters in such form and containing such provisions (including
indemnification provisions) as are customary in the securities business for such
an arrangement between such managing underwriters and companies of VPI's size
and investment stature.
17.5 AVAILABILITY OF RULE 144. VPI shall not be obligated to register
shares of VPI Stock into which the Dividend Access Shares are exchangeable at
any time when the resale provisions of Rule 144(k) (or any similar or successor
provision) promulgated under the 1933 Act are available to such STOCKHOLDER with
respect to such VPI Stock.
17.6 REGISTRATION RIGHTS INDEMNIFICATION.
(a) Indemnification by VPI. In the event any shares of VPI Stock into which
the Dividend Access Shares are exchangeable pursuant to this Agreement (the
"Registrable Securities") are included in a registration statement under this
Section 17, to the extent permitted by law, VPI will, and hereby does, indemnify
and hold harmless each seller of any Registrable Securities covered by such
registration statement, its directors, officers, agents, attorneys, each other
Person who participates as an underwriter in the offering or sale of such
securities and each
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other Person, if any, who controls such seller or any such underwriter within
the meaning of the 1933 Act, against any losses, claims, damages or liabilities,
joint or several, to which such seller or any such director or officer or
underwriter or controlling Person may become subject under the 1933 Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any registration statement under which such
securities were registered under the 1933 Act, any preliminary prospectus, final
prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and VPI will reimburse such seller and each such
director, officer, underwriter and controlling Person for any expenses
(including but not limited to reasonable attorneys' fees) reasonably incurred by
them in connection with investigating or defending any such loss, claim,
liability, action or proceeding; provided that VPI shall not be liable in any
such case to the extent that any such loss, claim, damage, liability (or action
or proceeding in respect thereof) or expense arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in such registration statement, any such preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement in reliance upon and in
conformity with written information furnished to VPI by such seller expressly
for use in the preparation thereof, and provided further that VPI shall not be
liable to any Person who participates as an underwriter in the offering or sale
of Registrable Securities or any other Person, if any, who controls such
underwriter within the meaning of the 1933 Act, in any such case to the extent
that any such loss, claim, damage, liability (or action or proceeding in respect
thereof) or expense arises out of such Person's failure to send or give a copy
of the final prospectus, as the same may be then supplemented or amended, to the
Person asserting an untrue statement or alleged untrue statement or omission or
alleged omission at or prior to the written confirmation of the sale of
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Registrable Securities to such Person if such statement or omission was
corrected in such final prospectus. Such indemnity shall remain in full force
and effect regardless of any investigation made by or on behalf of such seller
or any such director, officer, underwriter or controlling Person and shall
survive the transfer of such securities by such seller.
(b) Indemnification by Sellers. If any Registrable Securities are included
in any registration statement filed pursuant to this Section 17, each
prospective seller of such securities shall indemnify and hold harmless (in the
same manner and to the same extent as set forth in subdivision (a) of this
Section 17.6) each underwriter, each Person who controls such underwriter within
the meaning of the 1933 Act, VPI, each director of VPI, each officer of VPI,
VPI's agents and attorneys and each other Person, if any, who controls VPI
within the meaning of the 1933 Act, with respect to any statement or alleged
statement in or omission or alleged omission from such registration statement,
any preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, if such statement or alleged
statement or omission or alleged omission was made in reliance upon and in
strict conformity with written information furnished to VPI by such seller
expressly for use in the preparation of such registration statement, preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement;
provided that such prospective seller shall not be liable to any Person who
participates as an underwriter in the offering or sale of Registrable Securities
or any other Person, if any, who controls such underwriter within the meaning of
the 1933 Act, in any such case to the extent that any such loss, claim, damage,
liability (or action or proceeding in respect thereof) or expense arises out of
such Person's failure to send or give a copy of the final prospectus, as the
same may be then supplemented or amended, to the Person asserting an untrue
statement or alleged untrue statement or omission or alleged omission at or
prior to the written confirmation of the sale of Registrable Securities to such
Person if such statement or omission was corrected in such final prospectus.
Such indemnity shall remain in full force and effect, regardless of any
investigation made by or on behalf of any underwriter, VPI or any such director,
officer or
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controlling Person and shall survive the transfer of such securities by such
seller. In no event shall the liability of any selling holder of Registrable
Securities under this Section 17.6(b) be greater in amount than the dollar
amount of the proceeds received by such holder upon the sale of the Registrable
Securities giving rise to such indemnification obligation.
(c) Notices of Claims, etc. Promptly after receipt by an indemnified party
of notice of the commencement of any action or proceeding involving a claim
referred to in the preceding subdivisions of this Section 17.6, such indemnified
party will, if a claim in respect thereof is to be made against an indemnifying
party, give written notice to the latter of the commencement of such action;
provided that the failure of any indemnified party to give notice as provided
herein shall not relieve the indemnifying party of its obligations under the
preceding subdivisions of this Section 17.6, except to the extent that the
indemnifying party is actually materially prejudiced by such failure to give
notice. In case any such action is brought against an indemnified party, unless
in such indemnified party's reasonable judgment a conflict of interest between
such indemnified and indemnifying parties may exist in respect of such claim,
the indemnifying party shall be entitled to participate in and to assume the
defense thereof, jointly with any other indemnifying party similarly notified to
the extent that it may wish, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any legal
or other expenses subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall, without the consent of the indemnified party, consent to entry of
any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect to such claim or
litigation.
(d) Other Indemnification. Indemnification similar to that specified in
the preceding subdivisions of this Section 17.6 (with appropriate modifications)
shall be given by VPI and each
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seller of Registrable Securities with respect to any required registration or
other qualification of securities under any federal or state law or regulation
of any governmental authority other than the 1933 Act.
(e) Indemnification Payments. The indemnification required by this Section
17.6 shall be made by periodic payments of the amount thereof during the course
of the investigation or defense, as and when bills are received or expense,
loss, damage or liability is incurred.
(f) Contribution. If the indemnification provided for in this Section 17.6
from the indemnifying party is unavailable to an indemnified party hereunder in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such loss, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and indemnified parties in connection with the actions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of such indemnifying party
and indemnified parties shall be determined by reference to, among other things,
whether any action in question, including any untrue statement of material fact
or omission or alleged omission to state a material fact, has been made by, or
relates to information supplied by, such indemnifying party or indemnified
parties, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such action. The amount paid or payable by a
party as a result of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include, subject to the limitations set
forth in Section 17.6(c) hereof, any legal or other fees or expenses reasonably
incurred by such party in connection with any investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 17.6(f) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately
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preceding paragraph. Notwithstanding the provisions of this Section 17.6(f), no
underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Registrable Securities underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which such underwriter has otherwise been required to pay by reason
on such untrue or alleged untrue statement or omission or alleged omission, and
no selling holder shall be required to contribute any amount in excess of the
amount by which the total price at which the Registrable Securities of such
selling holder were offered to the public exceeds the amount of any damages
which such selling holder has otherwise been required to pay by reason of such
untrue statement or omission. No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
If indemnification is available under this Section 17.6, the indemnifying
parties shall indemnify each indemnified party to the full extent provided in
Section 17.6(a) through Section 17.6(e) hereof without regard to the relative
fault of said indemnifying party or indemnified party or any other equitable
consideration provided for in this Section 17.6(f).
18. GENERAL
18.1 PRESS RELEASES. The parties hereto acknowledge that public disclosure
of this Agreement and/or any information regarding the transactions contemplated
hereby or the Other Agreements may adversely affect the ability of the parties
hereto and to the Other Agreements to consummate the transactions contemplated
hereby and by the Other Agreements. VPI, the COMPANY, and the STOCKHOLDERS
hereby agree that they shall not issue any press release or otherwise make any
public announcement (including communications with trade publications and other
media), or disclose information to any third party (except those agents or
representatives of a party directly involved in the transactions contemplated
hereby and except as required by law) concerning
86
VPI, the Founding Companies or the transactions contemplated hereby or by the
Other Agreements without the prior approval of VPI, the COMPANY and the
STOCKHOLDERS.
18.2 COOPERATION. The COMPANY, the STOCKHOLDERS, VPI and NEWCO shall each
deliver or cause to be delivered to the other on the Closing Date, and at such
other times and places as shall be reasonably agreed to, such additional
instruments as the other may reasonably request for the purpose of carrying out
this Agreement. The COMPANY shall cooperate and use its reasonable efforts to
have the present officers, directors and the employees of the COMPANY cooperate
with VPI on and after the Closing Date in furnishing information, evidence,
testimony and other assistance in connection with any tax return filing
obligations, actions, proceedings, arrangements or disputes of any nature with
respect to matters pertaining to all periods prior to the Closing Date.
18.3 SUCCESSORS AND ASSIGNS; THIRD PARTY BENEFICIARIES. This Agreement and
the rights of the parties hereunder may not be assigned (except by operation of
law) and shall be binding upon and shall inure to the benefit of the parties
hereto, the successors of VPI, and the heirs and legal representatives of the
STOCKHOLDERS. Nothing in this Agreement shall be deemed to create any right with
respect to any person or entity not a party to or property not subject to this
Agreement.
18.4 ENTIRE AGREEMENT. This Agreement (including the schedules, exhibits
and annexes attached hereto) and the documents delivered pursuant hereto
constitute the entire agreement and understanding among the STOCKHOLDERS, the
COMPANY, NEWCO and VPI and supersede any prior agreement and understanding
relating to the subject matter of this Agreement, including but not limited to
any letter of intent entered into by any of the parties hereto. This Agreement,
upon execution, constitutes a valid and binding agreement of the parties hereto
enforceable in accordance with its terms and may be modified or amended only by
a written instrument executed by the STOCKHOLDERS, the COMPANY, NEWCO and VPI,
acting through their respective officers or trustees, duly authorized by their
respective Boards of Directors.
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18.5 COUNTERPARTS. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original and all of which
together shall constitute but one and the same instrument.
18.6 BROKERS AND AGENTS. Except as disclosed on Schedule 18.6, each party
represents and warrants that it employed no broker or agent in connection with
this transaction and agrees to indemnify the other parties hereto against all
loss, cost, damages or expense arising out of claims for fees or commission of
brokers employed or alleged to have been employed by such indemnifying party.
18.7 EXPENSES. Whether or not the transactions herein contemplated shall be
consummated, VPI will pay the fees, expenses and disbursements of VPI and NEWCO
and their respective agents, representatives, accountants and counsel incurred
in connection with the subject matter of this Agreement and any amendments
thereto, including all costs and expenses incurred in the performance and
compliance with all conditions to be performed by VPI under this Agreement,
including the fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP (including such fees and
expenses in connection with the audit of the COMPANY's financial statements),
Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇, L.L.P., and any other person or entity
retained by VPI, and the costs of preparing the Registration Statement. The
STOCKHOLDERS shall pay the fees, expenses and disbursements of the STOCKHOLDERS,
the COMPANY and their respective agents, representatives, accountants and
counsel incurred in connection with the subject matter of this Agreement and any
amendments thereto, including all costs and expenses incurred in the performance
and compliance with all conditions to be performed by the COMPANY and the
STOCKHOLDERS under this Agreement, including the fees and expenses of
accountants and legal counsel to the COMPANY and the STOCKHOLDERS.
Notwithstanding the foregoing, if the transactions contemplated by this
Agreement are consummated, VPI shall reimburse the STOCKHOLDERS for such
reasonable fees, expenses and disbursements upon the closing of the IPO up to
US$50,000. In addition, each STOCKHOLDER shall pay all sales, use, transfer,
real property transfer, recording, gains, stock transfer and other similar taxes
and fees ("Transfer Taxes") imposed in connection with the transactions
contemplated hereby, other than
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Transfer Taxes, if any, imposed by the State of Delaware. Each STOCKHOLDER shall
file all necessary documentation and Tax Returns with respect to such Transfer
Taxes. In addition, each STOCKHOLDER acknowledges that he or she, and not the
COMPANY or VPI, shall pay all taxes due upon receipt of the consideration
payable pursuant to Section 3 hereof, and shall assume all tax risks and
liabilities of such STOCKHOLDER in connection with the transactions contemplated
hereby; provided, however, that the foregoing shall not in any way prejudice the
ability of the STOCKHOLDERS and the COMPANY to rely upon the opinions contained
in the tax opinion letter referenced in Annex VI.
18.8 NOTICES. All notices of communication required or permitted hereunder
shall be in writing and may be given (i) by depositing the same in United States
mail, addressed to the party to be notified, postage prepaid and registered or
certified with return receipt requested, (ii) by delivering the same in person
to an officer or agent of such party or (iii) by facsimile transmission when
confirmation of receipt is received from the party being notified by the party
sending such notice.
(a) If to VPI, or NEWCO, addressed to them at:
Vacation Properties International, Inc.
c/o Capstone Partners, LLC
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile no.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
with copies to:
Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇, L.L.P.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Facsimile no.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
(b) If to the STOCKHOLDERS, addressed to them at their respective addresses
set forth on Annex IV, with copies to such counsel as is set forth with
respect to each STOCKHOLDER on such Annex IV;
89
(c) If to the COMPANY, addressed to it at:
Whistler Chalets Limited
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Facsimile no.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
and marked "Personal and Confidential"
or to such other address or counsel as any party hereto shall specify pursuant
to this Section 18.8 from time to time.
18.9 GOVERNING LAW. This Agreement shall be construed in accordance with
the laws of the State of Delaware.
18.10 EXERCISE OF RIGHTS AND REMEDIES. Except as otherwise provided herein,
no delay of or omission in the exercise of any right, power or remedy accruing
to any party as a result of any breach or default by any other party under this
Agreement shall impair any such right, power or remedy, nor shall it be
construed as a waiver of or acquiescence in any such breach or default, or of
any similar breach or default occurring later; nor shall any waiver of any
single breach or default be deemed a waiver of any other breach or default
occurring before or after that waiver.
18.11 TIME. Time is of the essence with respect to this Agreement.
18.12 REFORMATION AND SEVERABILITY. In case any provision of this Agreement
shall be held by any court of competent jurisdiction to be invalid, illegal or
unenforceable, it shall, to the extent possible, be modified in such manner as
to be valid, legal and enforceable but so as to most nearly retain the intent of
the parties, and if such modification is not possible, such provision shall be
severed from this Agreement, and in either case the validity, legality and
enforceability of the remaining provisions of this Agreement shall not in any
way be affected or impaired thereby.
18.13 REMEDIES CUMULATIVE. Except to the extent specifically set forth
herein, no right, remedy or election given by any term of this Agreement shall
be deemed exclusive but each shall be cumulative with all other rights, remedies
and elections available at law or in equity.
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18.14 CAPTIONS. The headings of this Agreement are inserted for convenience
only, shall not constitute a part of this Agreement or be used to construe or
interpret any provision hereof.
18.15 AMENDMENTS AND WAIVERS. Any term of this Agreement may be amended and
the observance of any term of this Agreement may be waived only with the written
consent of VPI, NEWCO, the COMPANY and STOCKHOLDERS (as defined in the
introductory paragraph of this Agreement) who will hold or who hold at least 50%
of the Dividend Access Shares issued or to be issued to the STOCKHOLDERS upon
consummation of the transactions contemplated hereby. Any amendment or waiver
effected in accordance with this Section 18.15 shall be binding upon each of the
parties hereto, any other person receiving Dividend Access Shares in connection
with the transactions contemplated hereby and each future holder of such
Dividend Access Shares.
18.16 INCORPORATION BY REFERENCE. To the extent that an item is disclosed
in a particular Schedule or a subsection of a particular Schedule and such item
is readily apparent on its face as being applicable to another Schedule or
another subsection of the same Schedule, such item shall be deemed incorporated
by reference in such Schedule or such other subsection under the same Schedule.
18.17 DEFINED TERMS. Unless the context otherwise requires, capitalized
terms used in this Agreement or in any Schedule attached hereto and not
otherwise defined shall have the following meanings for all purposes of this
Agreement:
"1933 Act" means the Securities Act of 1933, as amended.
"1934 Act" means the Securities Exchange Act of 1934, as amended.
"Acquired Party" means the COMPANY, any Subsidiary and any member of a
Relevant Group.
"Acquisition Companies" shall mean NEWCO and each of the other Delaware
companies wholly-owned by VPI prior to the Closing Date.
"Affiliates" shall mean, with respect to a corporation, any other person or
entity that, directly or indirectly through one or more intermediaries,
controls, or is controlled by, or is under
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common control with such corporation, and shall mean, with respect to an
individual, any parent, spouse or child of such individual.
"Agreement" has the meaning set forth in the first paragraph hereof.
"A/R Aging Reports" has the meaning set forth in Section 5.11.
"Balance Sheet Date" has the meaning set forth in Section 5.9.
"CBCA" has the meaning set forth in Section 2.2.
"Charter Documents" has the meaning set forth in Section 5.1.
"Closing" has the meaning set forth in Section 4.
"Closing Date" has the meaning set forth in Section 4.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"COMPANY" has the meaning set forth in the first paragraph of this
Agreement.
"COMPANY Financial Statements" has the meaning set forth in Section 5.9.
"COMPANY Stock" has the meaning set forth in Section 1.1.
"Constituent Corporations" has the meaning set forth in the second recital
of this Agreement.
"Delaware GCL" has the meaning set forth in Section 1.5.
"Demand Registration" has the meaning set forth in Section 17.2.
"Environmental Laws" has the meaning set forth in Section 5.13.
"ERISA" has the meaning set forth in Section 5.20.
"Expiration Date" has the meaning set forth in Section 5(A).
"Founding Companies" has the meaning set forth in the third recital of this
Agreement.
"Founding Stockholders" has the meaning set forth in Section 17.1.
"Future Sale" has the meaning set forth in Section 15.2.
"Indemnification Threshold" has the meaning set forth in Section 11.5.
"Indemnified Party" has the meaning set forth in Section 11.3.
"Indemnifying Party" has the meaning set forth in Section 11.3.
"IPO" means the initial public offering of VPI Stock pursuant to the
Registration Statement.
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"Material Adverse Effect" has the meaning set forth in Section 5.1.
"Material Documents" has the meaning set forth in Section 5.24.
"NEWCO" has the meaning set forth in the first paragraph of this Agreement.
"NEWCO STOCK" means the common stock, par value $.01 per share, of NEWCO.
"Noncompetition Period" means the longest of the following periods: (i)
three (3) years following the Closing Date; or (ii) (A) two (2) years following
the date of termination of any employment agreement entered into between VPI
and/or the COMPANY and the STOCKHOLDER subject to the Noncompetition Period or
(B) in the case of a termination without cause under such employment agreement
of the STOCKHOLDER subject to the Noncompetition Period, one (1) year following
the termination of such employment agreement.
"Other Agreements" has the meaning set forth in the third recital of this
Agreement.
"Other Founding Companies" means all of the Founding Companies other than
the COMPANY.
"Person" means any natural person, corporation, business trust,
association, company, partnership, limited liability company, joint venture or
any other entity, government, agency or political subdivision.
"Pension/Benefit Plans" has the meaning set forth in Section 5.20.
"Pre-Closing" has the meaning set forth in Section 4.
"Pre-Closing Date" has the meaning set forth in Section 4.
"Pricing" means the date of determination by VPI and the Underwriters of
the public offering price of the shares of VPI Stock in the IPO; the parties
hereto contemplate that the Pricing shall take place on the Pre-Closing Date.
"Registrable Securities" has the meaning set forth in Section 17.6.
"Registration Statement" means that certain registration statement on Form
S-1 covering the shares of VPI Stock to be issued in the IPO.
93
"Relevant Group" means the COMPANY and any affiliated, combined,
consolidated, unitary or similar group of which the COMPANY is or was a member.
"Restricted Common Stock" means the common stock of VPI, par value US$0.01
per share, having the restricted voting rights and such other rights,
preferences, restrictions and limitations as are set forth in the Certificate of
Incorporation, as amended, of VPI on the Closing Date.
"Schedule" means each Schedule attached hereto, which shall reference the
relevant sections of this Agreement, on which parties hereto disclose
information as part of their respective representations, warranties and
covenants.
"SEC" means the United States Securities and Exchange Commission.
"Statutory Liens" has the meaning set forth in Section 7.3.
"stock" and "capital stock" and "shares" mean, when used with respect to a
limited liability company unless the context otherwise requires, the membership
interests of such limited liability company, and otherwise have their respective
ordinary meanings.
"STOCKHOLDERS" has the meaning set forth in the first paragraph of this
Agreement.
"stockholders" means, when used with respect to a corporation, the owners
of the capital stock of such corporation and means, when used with respect to a
limited liability company unless the context otherwise requires, the owners of
the membership interests of such limited liability company.
"Subsidiary" has the meaning set forth in Section 5.6.
"Tax" or "Taxes" means all federal, state, local or foreign net or gross
income, gross receipts, net proceeds, sales, use, ad valorem, value added,
franchise, bank shares, withholding, payroll, employment, excise, property,
deed, stamp, alternative or add on minimum, environmental or other taxes,
assessments, duties, fees, levies or other governmental charges of any nature
whatever, whether disputed or not, together with any interest, penalties,
additions to tax or additional amounts with respect thereto.
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"Tax Returns" has the meaning set forth in Section 5.23.
"Territory" has the meaning set forth in Section 13.1.
"Third Person" has the meaning set forth in Section 11.3.
"Transfer Taxes" has the meaning set forth in Section 18.7.
"VPI" has the meaning set forth in the first paragraph of this Agreement.
"VPI Charter Documents" has the meaning set forth in Section 6.1.
"VPI Financial Statements" has the meaning set forth in Section 6.6.
"VPI Plan of Organization" has the meaning set forth in the fourth recital
of this Agreement.
"VPI Stock" means the common stock, par value US$.01 per share, of VPI.
"Underwriters" means the prospective underwriters in the IPO, as identified
in the Registration Statement.
[THE NEXT PAGE IS THE SIGNATURE PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
VACATION PROPERTIES INTERNATIONAL, INC.
WHISTLER CHALETS HOLDING CORP.
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Vice President
WHISTLER CHALETS LIMITED
By:/s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
President
STOCKHOLDERS:
/s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇