MEMBERSHIP SHARE PURCHASE AGREEMENT
MEMBERSHIP SHARE PURCHASE AGREEMENT, dated as of May __, 1999 (this
"Agreement"), among ZEFER Corp., a Delaware corporation ("ZEFER"), ZEFER Corp.
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Northeast, a Delaware corporation and wholly-owned subsidiary of ZEFER ("ZEFER
Northeast"), spyplane LLC, a California limited liability company (the
"Company"), and the equityholders of the Company set forth on the signature
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pages hereto (the "Equityholders").
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WITNESSETH:
WHEREAS, the Equityholders own all of the outstanding membership share
interests (the "Units") of the Company;
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WHEREAS, ZEFER and ZEFER Northeast wish to acquire the Units from the
Equityholders in exchange for shares (the "ZEFER Shares") of ZEFER's common
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stock, $.01 par value ("ZEFER Common Stock"), and payment of the amounts set
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forth in Section 1.2 below (the "Cash/Note Consideration" and, together with the
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ZEFER Shares, the "Consideration") to the Equityholders, and the Equityholders
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wish to surrender the Units in exchange for such Consideration, all upon and
subject to the terms and conditions set forth herein; and
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein and in the Employment Agreements dated as of the
date hereof between ZEFER and each of the Equityholders, and intending to be
legally bound hereby, ZEFER, ZEFER Northeast, the Equityholders and the Company
hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF UNITS
SECTION 1.1 Basic Transaction. The Equityholders hereby agree to transfer
99% of the Units to ZEFER and 1% of the Units to ZEFER Northeast, and ZEFER
hereby agrees to issue the ZEFER Shares and pay the Cash/Note Consideration to
the Equityholders, at the Closing, subject to and upon the terms and conditions
contained herein.
SECTION 1.2 Exchange Consideration. The Consideration which ZEFER shall
issue and pay to the Equityholders at the Closing for all of the Units and in
consideration of the agreements and covenants of the Equityholders contained
herein shall consist of 50,000 ZEFER Shares and one million nine hundred and
eighty thousand dollars ($1,980,000.00), subject to adjustment as set forth in
Section 1.3, payable as follows: (a) $1,000,000 in cash payable by wire
transfer to the Equityholders in the amounts set forth opposite each
Equityholder's name on Schedule 1.2 hereto and in accordance with written
instructions of such Equityholder given to ZEFER at least two business days
prior to the Closing and (b) the execution and delivery to each Equityholder of
a Subordinated Promissory Note (a "ZEFER Note") having a principal amount of
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$490,000 (in the form of Exhibit B hereto). Each Equityholder shall be entitled
to the number of ZEFER Shares and the amount of cash set forth across from his
or her name on Schedule 1.2 hereto.
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SECTION 1.3 [Intentionally Omitted.]
SECTION 1.4 The Closing. Subject to the satisfaction or waiver of the
conditions set forth in Article VII hereto, the closing of the exchange of the
Units for the Consideration and the other transactions contemplated hereby (the
"Closing") shall take place at the office of Ropes & Xxxx, One International
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Place, Boston, Massachusetts, or at such other place as may be agreed to by
ZEFER and the Equityholders, on May 14, 1999 or on such other date as may be
agreed to by ZEFER and the Equityholders (the "Closing Date"); provided,
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however, that such Closing may be effected via exchange of facsimile signature
pages to the Agreement by the parties hereto.
SECTION 1.5 Deliveries at the Closing. At the Closing (i) the Company
shall deliver to ZEFER and ZEFER Northeast the various certificates,
instruments, and documents referred to in Section 7.2 below, (ii) ZEFER and
ZEFER Northeast will deliver to the Company the various certificates,
instruments, and documents referred to in Section 7.3 below, (iii) each of the
Equityholders shall deliver to ZEFER and ZEFER Northeast documents sufficient to
transfer all of the outstanding Units to ZEFER and ZEFER Northeast, accompanied
by duly executed assignment documents and the various certificates, instruments
and documents referred to in Section 7.2 below, (iv) ZEFER will deliver to each
of the Equityholders, in exchange for such Units so delivered to ZEFER and ZEFER
Northeast, the number of shares of ZEFER Common Stock to which such Equityholder
is entitled pursuant to Section 1.2 hereof (subject to the restrictions set
forth in the Employment Agreements delivered pursuant to Section 7.2(f) hereof),
the amount of cash to which such Equityholder is entitled pursuant to Section
1.2 hereof and the respective ZEFER Notes.
SECTION 1.6 Material Adverse Effect. When used in connection with the
Company, ZEFER or ZEFER Northeast, as the case may be, the term "Material
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Adverse Effect" means any change, effect or circumstance that, individually or
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when taken together with all other similar or related changes, effects or
circumstances that have occurred prior to the date of determination of the
occurrence of the Material Adverse Effect, is or is reasonably likely to be
materially adverse to the business, prospects, assets (including intangible
assets), financial condition or results of operations of the Company, ZEFER or
ZEFER Northeast, as the case may be, taken as a whole, as applicable based on
the party making the representation, warranty or disclosure.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE EQUITYHOLDERS
Each of the Equityholders hereby represents and warrants to ZEFER and ZEFER
Northeast, severally and not jointly, that, except as set forth in the written
disclosure schedule attached hereto that is arranged in paragraphs corresponding
to the numbered and lettered paragraphs contained in Articles II and III (the
"Company Disclosure Schedule"):
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SECTION 2.1 Equityholders. Each Equityholder is an individual residing
at the address indicated on Schedule 2.1 hereto.
SECTION 2.2 Authority. Each Equityholder has full legal capacity, power
and authority to execute and deliver this Agreement and to perform his
obligations hereunder. This
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Agreement has been duly and validly authorized, executed and delivered by each
Equityholder and, assuming the due authorization, execution and delivery by the
other parties hereto, constitutes the valid and legally binding obligation of
such Equityholder, enforceable in accordance with its terms and conditions. No
Equityholder need give any notice to, make any filing with or obtain any
authorization, consent or approval of any government or governmental agency or
any other third party in order to consummate the transactions contemplated by
this Agreement.
SECTION 2.3 Noncontravention. Neither the execution and the delivery of
this Agreement, nor the consummation of the transactions contemplated hereby,
will (i) violate any charter, by-law or other governing document of such
Equityholder or any constitution, statute, regulation, rule, injunction,
judgment, order, decree, ruling, charge or other restriction of any government,
governmental agency or court to which the Equityholder is subject to or (ii)
conflict with, result in a breach of, constitute a default under, result in the
acceleration of, create in any party the right to accelerate, terminate, modify
or cancel or require any notice under any Agreement, contract, lease, license,
instrument or other legally binding arrangement to which any Equityholder is a
party or by which he is bound or to which any of his assets is subject which
will have a Material Adverse Effect on the Company.
SECTION 2.4 Brokers' Fees. No Equityholder has any liability or
obligation to pay any fees or commissions to any broker, finder or agent with
respect to the transactions contemplated by this Agreement for which ZEFER,
ZEFER Northeast or the Company could become liable or obligated.
SECTION 2.5 The Units. Each Equityholder holds of record and owns
beneficially the issued and outstanding Units indicated in Schedule 2.5 attached
hereto, free and clear of any restrictions on transfer (other than restrictions
under applicable securities laws), mortgages, pledges, liens, encumbrances,
charges, security interests, options, warrants, purchase rights, contracts,
commitments, equities, claims and demands. No Equityholder is a party to any
option, warrant, purchase right or other contract or commitment that could
require such Equityholder to sell, transfer or otherwise dispose of any
membership interests of the Company (other than this Agreement). No
Equityholder is a party to any voting trust, proxy or other Agreement or
understanding with respect to the voting of any membership interests of the
Company.
SECTION 2.6 Qualification of the Equityholders. (a) Each Equityholder is
acquiring the ZEFER Common Stock for his or its own account and not with a view
to or for resale in connection with any distribution thereof; (b) such
Equityholder understands that such shares of ZEFER Common Stock have not been
registered under the Securities Act or any state securities laws by reason of
specified exemptions from the registration provisions of the Securities Act
which depend upon, among other things, the bona fide nature of his or its
investment intent as expressed herein; (c) such Equityholder is able to bear the
economic risk of investment in the ZEFER Common Stock and is experienced and has
such knowledge and experience in financial and business matters that he or it is
capable of evaluating the risks and merits of the transactions contemplated by
this Agreement; and (e) such Equityholder acknowledges that such shares of ZEFER
Common Stock will bear a legend restricting transfer unless (i) the transfer is
exempt from the registration requirements of the Securities Act and an opinion
of counsel reasonably satisfactory to ZEFER that
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such transfer is exempt therefrom is delivered to the ZEFER, or (ii) the
transfer is made pursuant to an effective registration statement under the
Securities Act.
ARTICLE III
REPRESENTATIONS AND WARRANTIES CONCERNING THE COMPANY
The Company and the Equityholders hereby represent and warrant to ZEFER and
ZEFER Northeast, jointly and severally, that, except as set forth in the Company
Disclosure Schedule attached hereto:
SECTION 3.1 Organization, Qualification and Other Equity Interests. The
Company is a limited liability company duly organized, validly existing and in
good standing under the laws of California and has the requisite corporate power
and authority necessary to own, lease and operate the properties it purports to
own, operate or lease and to carry on its business as it is now being conducted.
The Company is duly qualified or licensed as a foreign corporation or entity to
do business, and is in good standing, in each jurisdiction where the character
of its properties owned, leased or operated by it or the nature of its
activities makes such qualification or licensing necessary, except where the
failure to be so duly qualified or licensed and in good standing would not have
a Material Adverse Effect. The Company does not directly or indirectly own any
equity or similar interest in, or any interest convertible into or exchangeable
or exercisable for, any equity or similar interest in, any corporation,
partnership, joint venture or other business association or entity.
SECTION 3.2 Articles of Organization and Operating Agreement. The
Company has heretofore furnished to ZEFER and ZEFER Northeast a complete and
correct copy of its Articles of Organization and Operating Agreement as amended
to date. Such Articles of Organization and Operating Agreement are in full
force and effect. The Company is not in violation of any of the provisions of
its Articles of Organization or Operating Agreement.
SECTION 3.3 Capitalization. Schedule 3.3 attached hereto sets forth, as
of the date hereof, all of the outstanding Units of the Company. All of such
Units are validly issued, fully paid and nonassessable. There are no options,
warrants or other rights, agreements, arrangements or commitments of any
character relating to the issued or unissued membership share interests of the
Company or obligating the Company to issue or sell any membership share
interests of, or other equity interests in, the Company. Except as set forth on
Schedule 3.3, there are no obligations, contingent or otherwise, of the Company
to repurchase, redeem or otherwise acquire any Units.
SECTION 3.4 Authority Relative to this Agreement. The Company has all
necessary corporate power and authority to execute and deliver this Agreement
and to perform its obligations hereunder and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by the
Company and the consummation by the Company of the transactions contemplated
hereby have been duly and validly authorized by all necessary corporate action,
and no other corporate proceedings on the part of the Company are necessary to
authorize this Agreement or to consummate the transactions so contemplated.
This Agreement has been duly and validly executed and delivered by the Company
and, assuming the due authorization, execution and
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delivery by the other parties hereto, constitutes a legal, valid and binding
obligation of the Company enforceable against the Company in accordance with its
terms.
SECTION 3.5 No Conflict; Required Filings and Consents.
(1) Schedule 3.5(a) hereto includes a list of (i) all loan agreements,
indentures, mortgages, pledges, conditional sale or title retention agreements,
security agreements, equipment obligations, guaranties, standby letters of
credit, equipment leases or lease purchase agreements to which the Company is a
party or by which it is bound and (ii) all contracts, agreements, commitments or
other understandings or arrangements to which the Company is a party or by which
it or any of its properties or assets are bound or affected, but excluding
contracts, agreements, commitments or other understandings or arrangements
entered into in the ordinary course of business and involving, in each case,
payments or receipts by the Company of amounts reasonably expected to be less
than $10,000 in any single instance but not more than $50,000 in the aggregate
(collectively, the "Contracts").
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(2) (i) The Company has not breached, is not in default under, and has not
received written notice of any breach of or default under, any of the Contracts,
(ii) to the knowledge of the Company, no other party to any of the Contracts has
materially breached or is in material default of any of its obligations
thereunder, and (iii) except as set forth in Schedule 3.5(b) attached hereto, to
the knowledge of the Company, each of the Contracts is in full force and effect.
(3) The execution and delivery of this Agreement by the Company does not,
and the performance of this Agreement by the Company and the consummation of the
transactions contemplated hereby will not, (i) conflict with or violate the
Articles of Organization or Operating Agreement of the Company, (ii) conflict
with or violate any federal, foreign, state or provincial law, rule, regulation,
order, judgment or decree (collectively, "Laws") applicable to the Company or by
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which any of its properties is bound or affected, or (iii) result in any
material breach of or constitute a material default (or an event that with
notice or lapse of time or both would become a default) under, or impair the
Company's rights or alter the rights or obligations of any third party under, or
give to others any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of a security interest, lien, claim,
encumbrance or any other restriction on any of the properties or assets of the
Company pursuant to, any note, bond, mortgage, indenture, contract, agreement,
lease, license, permit, franchise or other instrument or obligation to which the
Company is a party or by which the Company or any of its properties is bound or
affected.
(4) The execution and delivery of this Agreement by the Company does not,
and the performance of this Agreement by the Company will not, require any
consent, approval, authorization or permit on the part of the Company of, or
filing with or notification on the part of the Company to, any federal, foreign,
state or provincial governmental or regulatory authority except for (i)
applicable requirements, if any, of the Securities Act of 1933, as amended, and
the rules and regulations thereunder (the "Securities Act"), the Securities
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Exchange Act of 1934, as amended, and the rules and regulations thereunder (the
"Exchange Act"), and state securities laws ("Blue Sky Laws") and (ii) where the
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failure to obtain such consents, approvals, authorizations or permits, or to
make such filings or notifications, would not prevent or delay consummation of
the transactions
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contemplated by this Agreement, or otherwise prevent the Company from performing
its obligations under this Agreement, and would not have a Material Adverse
Effect.
SECTION 3.6 Compliance, Permits.
(1) The Company is in compliance, in all material respects, with all Laws
applicable to the Company or by which any of its assets or properties are bound.
(2) The Company holds all material permits, licenses, easements,
variances, exemptions, consents, certificates, orders and approvals from
governmental authorities which are necessary for the operation of the business
of the Company as it is now being conducted (collectively, the "Company
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Permits").
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The Company is in compliance in all material respects with the terms
of the Company Permits.
SECTION 3.7 Financial Statements.
(1) Attached to Schedule 3.7 hereto are (i) the unaudited balance sheet of
the Company as of December 31, 1998, together with the related statement of
income, cash flow and Equityholders' equity for the fiscal year then ended, and
(ii) the unaudited balance sheet of the Company as of March 31, 1999 and the
related statement of income, cash flow and equityholders' equity for the three
months then ended (collectively, the "Financial Statements").
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(2) Each of the Financial Statements fairly presents in all material
respects the consolidated financial position of the Company as at the respective
dates thereof and the consolidated results of its operations, cash flows and
equityholder equity for the periods indicated, except that the Financial
Statements for the three month period ended March 31, 1999 are subject to normal
and recurring year-end adjustments which were not or are not expected to be
material in amount.
SECTION 3.8 Absence of Certain Changes or Events. Since December 31,
1998, the Company has conducted its business in the ordinary course and there
has not occurred: (a) any Material Adverse Effect; (b) any amendments to the
Articles of Organization or Operating Agreement of the Company; (c) any damage
to, destruction, sale or loss of any asset of the Company (whether or not
covered by insurance) that has had or could reasonably be expected to have a
Material Adverse Effect; (d) any material change by the Company in its
accounting methods, principles or practices; (e) any material revaluation by the
Company of any of its assets, including, without limitation, writing off notes
or accounts receivable other than in the ordinary course of business; (f) any
other action or event that would have required the consent of ZEFER pursuant to
Section 5.1 had such action or event occurred after the date of this Agreement
except where such an action or event would not have a Material Adverse Effect;
or (g) any sale of the property or assets of the Company, except in the ordinary
course of business.
SECTION 3.9 No Undisclosed Liabilities. The Company has no liabilities
(absolute, accrued, contingent or otherwise), except liabilities (a) adequately
provided for in the Financial Statements, (b) which are current liabilities
incurred since March 31, 1999 in the ordinary course of business consistent with
past practice, or (c) incurred in connection with this Agreement.
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SECTION 3.10 Absence of Litigation. Except as set forth on Schedule 3.10
hereto, there are no claims, actions, suits, proceedings or investigations
pending or, to the knowledge of the Company, threatened against the Company or
any properties or rights of the Company before any federal, foreign, state or
provincial court, arbitrator or administrative, governmental or regulatory
authority or body.
SECTION 3.11 Employee Benefit Plans, Employment Agreements.
(1) Schedule 3.11 (a) hereto lists all employee pension plans (as defined
in Section 3(2) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA")), all employee welfare plans (as defined in Section 3(1) of
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ERISA), and all other bonus, stock option, stock purchase, incentive, deferred
compensation, supplemental retirement, severance and other similar fringe or
employee benefit plans, programs or arrangements, and any current employment,
executive compensation, consulting or severance agreements, written or
otherwise, for the benefit of, or relating to, any present or former employee
(including any beneficiary of any such employee) of, or any present or former
consultant (including any beneficiary of any such consultant) to the Company,
any trade or business (whether or not incorporated) which is a member of a
controlled group including the Company or which is under common control with the
Company (an "ERISA Affiliate") within the meaning of Section 414 of the Code
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(all such plans, practices and programs are referred to as the "Company Employee
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Plans"). The Company has made available to ZEFER copies of (i) the most recent
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annual report on Form 5500 series, with accompanying schedules and attachments,
filed with respect to each Company Employee Plan required to make such a filing,
and (ii) the most recent Internal Revenue Service determination letter with
respect to each Company Employee Plan intended to be qualified under Section
401(a) of the Code, if any.
(2) (i) None of the Company Employee Plans promises or provides retiree
medical or other retiree welfare benefits to any person, and neither the Company
nor any ERISA Affiliate has ever maintained, contributed to, or been required to
contribute to, any plan that is or was a "multiemployer plan" as such term is
defined in Section 3(37) of ERISA, a pension plan subject to Title IV of ERISA
or a plan subject to Part 3 of Title I of ERISA; (ii) there has been no
"prohibited transaction," as such term is defined in Section 406 of ERISA and
Section 4975 of the Code, with respect to any Company Employee Plan, which could
result in any material liability of the Company; (iii) all Company Employee
Plans are in compliance in all material respects with the requirements
prescribed by any and all Laws (including ERISA and the Code), currently in
effect with respect thereto (including all applicable requirements for
notification to participants or the Department of Labor, Internal Revenue
Service (the "IRS") or Secretary of the Treasury), and the Company has performed
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all material obligations required to be performed by it under, is not in any
material respect in default under or violation of, and have no knowledge of any
default or violation by any other party to, any of the Company Employee Plans;
(iv) each Company Employee Plan intended to qualify under Section 401(a) of the
Code and each trust intended to qualify under Section 501(a) of the Code is the
subject of a favorable determination letter from the IRS, and nothing has
occurred which may reasonably be expected to impair such determination; and (v)
there are no lawsuits or other claims (other than claims for benefits in the
ordinary course) pending or, to the best knowledge of the Company, threatened
with respect to any Company Employee Plan.
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(3) Schedule 3.11(c) hereto sets forth a true and complete list of: (i)
all employment agreements with officers of the Company; (ii) all agreements with
consultants who are individuals obligating the Company to make minimum annual
cash payments in an amount exceeding $50,000; (iii) all employees of, or
consultants to, the Company who have executed a non-competition agreement with
the Company; (iv) all severance agreements, programs and policies of the Company
with or relating to its employees, in each case with outstanding commitments
exceeding $50,000, excluding programs and policies required to be maintained by
law; and (v) all plans, programs, agreements and other arrangements of the
Company with or relating to its employees which contain change in control
provisions.
SECTION 3.12 Labor Matters. (i) There are no controversies pending or, to
the knowledge of the Company, threatened between the Company and any of its
employees except as set forth on Schedule 3.12 hereto; (ii) the Company is not a
party to any collective bargaining agreement or other labor union contract
applicable to persons employed by the Company, and to the knowledge of the
Company there are no activities or proceedings of any labor union to organize
any such employees; and (iii) to the knowledge of the Company there are not
currently and there have not been any strikes, slowdowns, work stoppages,
lockouts, or threats thereof, by or with respect to any employees of the
Company.
SECTION 3.13 Restrictions on Business Activities. Except for this
Agreement, to the Company's knowledge, there is no agreement, judgment,
injunction, order or decree binding upon the Company or any other person which
has or could reasonably be expected to have the effect of prohibiting or
impairing any material business practice of the Company or the acquisition of
property by the Company.
SECTION 3.14 Title to Property. The Company has good and marketable title
to all of its properties and assets, free and clear of all liens, charges and
encumbrances, except liens for taxes not yet due and payable and such liens or
other imperfections of title, if any, as do not materially detract from the
value of or interfere with the present use of the property affected thereby or
would not have a Material Adverse Effect; and, to the knowledge of the Company,
all leases pursuant to which the Company leases from others real or personal
property, are in good standing, valid and effective in accordance with their
respective terms, and there is not, to the knowledge of the Company, under any
of such leases, any existing material default or event of default (or event
which with notice or lapse of time, or both, would constitute a material
default). The Company does not own any real property.
SECTION 3.15 Taxes.
(1) For purposes of this Agreement, "Tax" or "Taxes" shall mean taxes,
fees, levies, duties, tariffs, imposts, and governmental impositions or charges
of any kind in the nature of (or similar to) taxes, payable to any federal,
state, local or foreign taxing authority, including, without limitation, (i)
income, franchise, profits, gross receipts, ad valorem, net worth, value added,
sales, use, service, real or personal property, special assessments, capital
stock, license, payroll, withholding, employment, social security (or similar),
workers' compensation, unemployment compensation, environmental (including Taxes
under Code section 59A) utility, severance, production, excise, stamp,
occupation, premiums, windfall profits, transfer and gains taxes, and (ii)
interest, penalties, additional taxes and additions to tax imposed with respect
thereto; and "Tax
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Returns" shall mean returns, reports, declarations, forms and information
statements with respect to Taxes required to be filed with the IRS or any other
federal, foreign, state or provincial taxing authority, domestic or foreign,
including, without limitation, consolidated, combined and unitary tax returns,
including any amendments thereto.
(2) (i) All Tax Returns of, relating to or which include the Company which
are required to have been filed have been filed on a timely basis with the
appropriate authorities and all such Tax Returns are true, correct and complete
in all respects, (ii) all Taxes required to have been paid by the Company
(whether or not shown on any Tax Return) have been paid in full on a timely
basis to the appropriate authorities, and (iii) all Taxes or other amounts
required to have been collected or withheld by the Company have been timely and
properly collected or withheld and paid to the appropriate authorities.
(3) (1) No claim has ever been made by an authority in a jurisdiction
where the Company does not file Tax Returns that the Company is or may be
subject to Tax by that jurisdiction, (2) no Taxing authority has asserted in
writing any adjustment, deficiency, or assessment that could result in
additional Tax for which the Company is or may be liable, (3) there is no
pending audit, examination, investigation, dispute, proceeding or claim for
which the Company has received notice relating to any Tax for which the Company
is or may be liable, (4) no statute of limitations with respect to any Tax for
which the Company is or may be liable has been waived or extended, (5) the due
date of any Tax Returns that the Company is required to file has not been
extended, (6) the Company is not a party to any Tax sharing or Tax allocation
agreement, arrangement or understanding and (7) there are no powers of attorney
with respect to Taxes of the Company currently in force.
(4) There are no liens on any of the assets of the Company which arose in
connection with any failure or asserted failure to pay any Tax, other than liens
for current Taxes not yet due and payable.
(5) The Company is not a party to any contract, agreement, plan or
arrangement that, individually or collectively, could give rise to any payment
in the nature of compensation that would not be deductible by reason of Sections
162, 280G or 404 of the Code.
(6) The Company has not been treated as a corporation at any time since
its inception for federal income Tax purposes and is not responsible for any
federal income Taxes, including the federal income Taxes of any other party, as
transferee or successor, by contract or otherwise. The Company is not a party
to any joint venture, partnership or other arrangement that could be treated as
a partnership for Tax purposes.
(7) Copies of (i) any Tax examinations, (ii) extensions of statutes of
limitations, (iii) the federal, state, local and foreign income Tax Returns of
the Company, and (iv) substantive correspondence between the Company and all
Taxing authorities for its last three (3) taxable years have previously been
furnished to the ZEFER and ZEFER Northeast.
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(8) Schedule 3.15(h) lists (A) the Company's Tax basis in its assets as of
December 31, 1998 and as utilized in the Tax Returns and (B) the amount of any
net operating loss, net capital loss, unused investment or other credit, unused
foreign Tax, excess charitable contribution, adjustments under Section 481 of
the Code and other Tax attributes allocable to the Company as shown on the Tax
Returns.
(9) The unpaid Taxes of the Company (A) did not as of December 31, 1998
exceed the reserve for Taxes (other than deferred Taxes established to reflect
book-tax timing differences) set forth on the Company's Audited Financial
Statements and (B) do not exceed that reserve as adjusted for the passage of
time through the Closing Date in accordance with the past custom and practice of
the Company in filing its Tax Returns.
(10) No Tax is required to be withheld by ZEFER or ZEFER Northeast as a
result of the payment of the Consideration pursuant to this Agreement.
SECTION 3.16 Environmental Matters. The Company: (i) has obtained all
material approvals which are required to be obtained under all applicable
federal, state or local laws or any regulation, code, plan, order, decree,
judgment, notice or demand letter issued, entered, promulgated or approved
thereunder relating to pollution or protection of the environment, including
laws relating to emissions, discharges, releases or threatened releases of
pollutants, contaminants, or hazardous or toxic materials or wastes into ambient
air, surface water, ground water, or land or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport, or handling of pollutants, contaminants or hazardous or toxic
materials or wastes by the Company ("Environmental Laws"); (ii) is in material
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compliance with all terms and conditions of such required approvals, and also is
in material compliance with all other limitations, restrictions, conditions,
standards, prohibitions, requirements, obligations, schedules and timetables
contained in applicable Environmental Laws; and (iii) as of the date hereof, is
not aware of nor has received notice of any past or present violations by the
Company of Environmental Laws or any event, condition, circumstance, activity,
practice, incident, action or plan which is reasonably likely to interfere with
or prevent continued material compliance with or which would give rise to any
material common law or statutory liability, or otherwise form the basis of any
material claim, action, suit or proceeding, against the Company based on or
resulting from the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling, or the emission, discharge or release
into the environment, of any pollutant, contaminant or hazardous or toxic
material or waste.
SECTION 3.17 Intellectual Property. Except as set forth on Schedule 3.17
hereto, the Company owns or licenses all patents, patent applications,
trademarks, service marks, trade names, corporate names, copyrights, trade
secrets or other proprietary rights necessary to the conduct of the business of
the Company. Except as listed in Schedule 3.17 hereto, the Company has not
licensed from any third party any proprietary rights or, to the knowledge of the
Company, infringed, misappropriated or otherwise conflicted with any proprietary
rights of any third parties. To the Company's knowledge, no activity of any
third party infringes upon any proprietary rights of the Company. All of the
Company's trademarks and trade names are listed in Schedule 3.17 hereto and the
Company has good title to all of such trademarks and trade names free and clear
of any lien, charge, license or other encumbrance.
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SECTION 3.17 Immigration Compliance. (a) The Company is in compliance in
all material respects with all applicable foreign, federal, state and local
laws, rules, directives and regulations relating to the employment authorization
of its employees (including, without limitation, the Immigration Reform and
Control Act of 1986, as amended and supplemented, and Section 212(n) and 274A of
the Immigration and Nationality Act, as amended and supplemented, and all
implementing regulations relating thereto), and the Company has not employed nor
is it currently employing any unauthorized aliens (as such term is defined under
8 CFR 274a.1(a)).
(b) The Company has not received any notice from the Immigration and
Naturalization Service (the "INS") or the U.S. Department of Labor (the "DOL")
--- ---
of the disapproval or denial of any visa petition pending before the INS or
labor certification pending before the DOL on behalf of any employee or
prospective employee of the Company.
(c) Schedule 3.18 (c) of the Company Disclosure Schedule contains a true,
complete and accurate list of all non-immigrant or immigrant visa petitions
pending before the INS and labor certifications pending before the DOL on behalf
of any of the employees or prospective employees of the Company.
(d) Since the approval of each of their respective visa petitions, there
has been no material change in the terms and conditions of employment of any
employees of the Company, provided that it is acknowledged that certain
employees from time to time unilaterally breach the terms of their employment
with the Company.
SECTION 3.18 Insurance. Schedule 3.19 of the Company Disclosure Schedule
attached hereto describes each insurance policy maintained by the Company with
respect to the Company's properties, assets and operations and sets forth the
date of expiration of each such insurance policy. All of such insurance policies
are in full force and effect. The Company is not in default with respect to its
obligations under any of such insurance policies.
SECTION 3.19 Accounts Receivable. The accounts receivable of the Company
as reflected in the most recent Financial Statements, to the extent uncollected
on the date hereof, and the accounts receivable reflected on the books of the
Company are valid and existing and represent monies due, and the Company has
made reserves reasonably considered adequate for receivables not collectible in
the ordinary course of business, and (subject to the aforesaid reserves) are
subject to no refunds or other adjustments and to no defenses, rights of setoff,
assignments, restrictions, encumbrances or conditions enforceable by third
parties on or affecting any thereof.
SECTION 3.20 Brokers. No broker, finder or investment banker is entitled
to any brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of the Company or its affiliates.
SECTION 3.21 Change in Control Payments. The Company has no plans,
programs or agreements to which it is a party, or to which it is subject,
pursuant to which payments may be required or acceleration of benefits may be
required upon a change of control of the Company.
-11-
SECTION 3.22 Expenses. Schedule 3.23 of the Company Disclosure Schedule
attached hereto sets forth a description of all of the estimated third party
expenses of the Company, including those payable to auditors, consultants and
other professionals, as of the date hereof which the Company expects to incur,
or has incurred, in connection with the transactions contemplated by this
Agreement. Notwithstanding anything else to the contrary herein, the
information set forth in Schedule 3.23 of the Company Disclosure Schedule shall
not act as a limitation on such third party expenses or otherwise limit the
rights of such third parties against the Company.
SECTION 3.23 Books and Records. The books of account, corporate records,
documents reflecting the issuance of the outstanding Units and other records of
the Company are true and complete in all material respects and have been made
available to ZEFER.
SECTION 3.24 Transactions with Affiliates. Except as set forth in Schedule
3.25 of the Company Disclosure Schedule attached hereto, neither any
Equityholder nor any other Affiliate of the Company nor any member of the
immediate family of any Equityholder or any other affiliate of the Company (a)
is a competitor, customer or supplier of the Company or any of its Subsidiaries,
(b) is a party to any Contract with the Company or any of its Subsidiaries, (c)
has any right to or interest in any asset, tangible or intangible, which is used
in the operations of the Company or any of its Subsidiaries or (d) has any
Indebtedness to or from the Company or any of its Subsidiaries.
SECTION 3.25 Full Disclosure. No representation or warranty made by the
Company contained in this Agreement and no statement contained in any
certificate or schedule furnished by the Company to ZEFER and ZEFER Northeast
in, or pursuant to the provisions of, this Agreement, including without
limitation the Company Disclosure Schedule, contains any untrue statement of a
material fact or omits or will omit to state any material fact necessary, in the
light of the circumstances under which it was made, in order to make statements
herein or therein not misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF ZEFER
ZEFER hereby represents and warrants to the Company and the Equityholders
that, except as set forth in the written disclosure schedule attached hereto
that is arranged in paragraphs corresponding to the numbered and lettered
paragraphs contained in this Article IV (the "ZEFER Disclosure Schedule"):
-------------------------
SECTION 4.1 Organization and Qualification; Subsidiaries. ZEFER is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has the requisite corporate power and authority
necessary to own, lease and operate the properties it purports to own, operate
or lease and to carry on its business as it is now being conducted. ZEFER is
duly qualified or licensed as a foreign corporation to do business, and is in
good standing, in each jurisdiction where the character of its properties owned,
leased or operated by it or the nature of its activities makes such
qualification or licensing necessary, except for such
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failures to be so duly qualified or licensed and in good standing that would not
have a Material Adverse Effect. ZEFER does not have any subsidiaries other than
as set forth in Schedule 4.1 of the ZEFER Disclosure Schedule.
SECTION 4.2 Charter and By-Laws. ZEFER has heretofore furnished to the
Company a complete and correct copy of its Certificate of Incorporation and By-
Laws, as amended to date. Such Certificate of Incorporation and By-Laws are in
full force and effect.
SECTION 4.3 Capitalization. The authorized capital stock of ZEFER
consists of (i) 9,684,060 shares of ZEFER Common Stock and (ii) 96,632 shares of
Class A Preferred Stock, par value $.01 per share ("Preferred Stock"). As of
---------------
the date hereof, there were (i) 8,288,411 shares of ZEFER Common Stock issued
and outstanding and (ii) 4,370 shares of Preferred Stock issued and outstanding.
Except as otherwise set forth in Schedule 4.3 of the ZEFER Disclosure Schedule,
there are no options, warrants or other rights, agreements, arrangements or
commitments of any character relating to the issued or unissued shares of
capital stock of ZEFER or obligating ZEFER to issue or sell any shares of
capital stock of, or other equity interests in, ZEFER.
SECTION 4.4 Authority Relative to this Agreement. ZEFER has all
necessary corporate power and authority to execute and deliver this Agreement
and to perform its obligations hereunder and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by ZEFER and
the consummation by ZEFER of the transactions contemplated hereby have been duly
and validly authorized by all necessary corporate action on the part of ZEFER,
and no other corporate proceedings on the part of ZEFER are necessary to
authorize this Agreement or to consummate the transactions contemplated thereby.
This Agreement has been duly and validly executed and delivered by ZEFER and,
assuming the due authorization, execution and delivery by the Company and the
Equityholders, constitutes a legal, valid and binding obligation of ZEFER
enforceable against it in accordance with its terms.
SECTION 4.5 No Conflict, Required Filings and Consents.
(1) Except as set forth in Schedule 4.5(a) of the ZEFER Disclosure
Schedule, the execution and delivery of this Agreement by ZEFER do not, and the
performance of this Agreement by ZEFER will not, (i) conflict with or violate
the Certificate of Incorporation or By-Laws of ZEFER, (ii) conflict with or
violate any Laws applicable to ZEFER or by which its properties are bound or
affected, or (iii) result in any material breach of or constitute a material
default (or an event which with notice or lapse of time or both would become a
default) under, or impair ZEFER's rights or alter the rights or obligations of
any third party under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of a lien or
encumbrance on any of the properties or assets of ZEFER pursuant to, any note,
bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which ZEFER is a party or by
which ZEFER or any of its properties are bound or affected.
(2) The execution and delivery of this Agreement by ZEFER does not, and
the performance of this Agreement by ZEFER will not, require any consent,
approval, authorization or permit on the part of the ZEFER of, or filing with or
notification on the part of the ZEFER to, any
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xxxxxxx xxxxxxx, xxxxx or provincial governmental or regulatory authority except
(i) for applicable requirements, if any, of the Securities Act, the Exchange
Act, and the Blue Sky Laws, and (ii) where the failure to obtain such consents,
approvals, authorizations or permits, or to make such filings or notifications,
would not prevent or delay consummation of the transactions contemplated by this
Agreement, or otherwise prevent ZEFER from performing its obligations under this
Agreement, and would not have a Material Adverse Effect.
SECTION 4.6 Validity of ZEFER Common Stock. The shares of ZEFER Common
Stock to be issued pursuant to this Agreement will be, when issued, duly
authorized, validly issued, fully paid and nonassessable and subject to no
preemptive rights.
SECTION 4.7 Financial Statements. Attached to Schedule 4.7 hereto is the
unaudited balance sheet of ZEFER as of March 31, 1999, together with the related
statement of income, cash flow and stockholders' equity for the three months
then ended (the "ZEFER Financial Statements"). The ZEFER Financial Statements
--------------------------
fairly present in all material respects the consolidated financial position of
ZEFER as at the date thereof and the consolidated results of its operations,
cash flows and stockholder equity for the period indicated, subject to normal
and recurring year-end adjustments which were not or are not expected to be
material in amount.
SECTION 4.8 Absence of Litigation. Except as set forth on Schedule 4.8
hereto, there are no claims, actions, suits, proceedings or investigations
pending or, to the knowledge of ZEFER, threatened against ZEFER or any
properties or rights of ZEFER before any federal, foreign, state or provincial
court, arbitrator or administrative, governmental or regulatory authority or
body.
SECTION 4.9 Insurance. The insurance policies maintained by ZEFER with
respect to its properties, assets and operations are sufficient for operating
its business and are in full force and effect. ZEFER is not in default with
respect to its obligations under any of its insurance policies.
SECTION 4.10 Absence of Certain Changes or Events. Since May 5, 1999,
ZEFER has conducted its business in the ordinary course and there has not
occurred (a) any Material Adverse Effect; (b) any amendments to the Certificate
of Incorporation or By-laws of ZEFER; (c) any material change by ZEFER in its
accounting methods, principles or practices; or (d) any material breach or
material default (or an event that with notice or lapse of time or both would
become such a breach or default) under that certain Purchase Agreement dated as
of March 23, 1999 by and among ZEFER, GTCR Fund VI, L.P., GTCR VI Executive
Fund, L.P. and GTCR Associates VI.
SECTION 4.11 Full Disclosure. No representation or warranty made by ZEFER
contained in this Agreement and no statement contained in any certificate or
schedule furnished by ZEFER to the Company in, or pursuant to the provisions of,
this Agreement, including without limitation the ZEFER Disclosure Schedule,
contains any untrue statement of a material fact or omits to state any material
fact necessary, in the light of the circumstances under which it was made, in
order to make the statements herein not misleading.
-14-
ARTICLE IV A
REPRESENTATIONS AND WARRANTIES OF ZEFER NORTHEAST
ZEFER Northeast hereby represents and warrants to the Company and the
Equityholders that, except as set forth in the written disclosure schedule
attached hereto that is arranged in paragraphs corresponding to the numbered and
lettered paragraphs contained in this Article IV A (the "ZEFER Northeast
---------------
Disclosure Schedule"):
-------------------
SECTION 4.1A. Organization and Qualification; Subsidiaries. ZEFER
Northeast is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has the requisite corporate power
and authority necessary to own, lease and operate the properties it purports to
own, operate or lease and to carry on its business as it is now being conducted.
ZEFER Northeast is duly qualified or licensed as a foreign corporation to do
business, and is in good standing, in each jurisdiction where the character of
its properties owned, leased or operated by it or the nature of its activities
makes such qualification or licensing necessary, except for such failures to be
so duly qualified or licensed and in good standing that would not have a
Material Adverse Effect.
SECTION 4.2A. Charter and By-Laws. ZEFER Northeast has heretofore
furnished to the Company a complete and correct copy of its Certificate of
Incorporation and By-Laws, as amended to date. Such Certificate of
Incorporation and By-Laws are in full force and effect.
SECTION 4.3A. Authority Relative to this Agreement. ZEFER Northeast has
all necessary corporate power and authority to execute and deliver this
Agreement and to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
by ZEFER Northeast and the consummation by ZEFER Northeast of the transactions
contemplated hereby have been duly and validly authorized by all necessary
corporate action on the part of ZEFER Northeast, and no other corporate
proceedings on the part of ZEFER Northeast are necessary to authorize this
Agreement or to consummate the transactions contemplated thereby. This Agreement
has been duly and validly executed and delivered by ZEFER Northeast and,
assuming the due authorization, execution and delivery by the Company and the
Equityholders, constitutes a legal, valid and binding obligation of ZEFER
Northeast enforceable against it in accordance with its terms.
SECTION 4.4A. No Conflict, Required Filings and Consents.
(1) Except as set forth in Schedule 4.4A(a) of the ZEFER Northeast
Disclosure Schedule, the execution and delivery of this Agreement by ZEFER
Northeast do not, and the performance of this Agreement by ZEFER Northeast will
not, (i) conflict with or violate the Certificate of Incorporation or By-Laws of
ZEFER Northeast, (ii) conflict with or violate any Laws applicable to ZEFER
Northeast or by which its properties are bound or affected, or (iii) result in
any material breach of or constitute a material default (or an event which with
notice or lapse of time or both would become a default) under, or impair ZEFER
Northeast's rights or alter the rights or obligations of any third party under,
or give to others any rights of termination, amendment,
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acceleration or cancellation of, or result in the creation of a lien or
encumbrance on any of the properties or assets of ZEFER Northeast pursuant to,
any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which ZEFER Northeast is
a party or by which ZEFER Northeast or any of its properties are bound or
affected.
(2) The execution and delivery of this Agreement by ZEFER Northeast does
not, and the performance of this Agreement by ZEFER Northeast will not, require
any consent, approval, authorization or permit on the part of the ZEFER
Northeast of, or filing with or notification on the part of the ZEFER Northeast
to, any federal foreign, state or provincial governmental or regulatory
authority except (i) for applicable requirements, if any, of the Securities Act,
the Exchange Act, and the Blue Sky Laws, and (ii) where the failure to obtain
such consents, approvals, authorizations or permits, or to make such filings or
notifications, would not prevent or delay consummation of the transactions
contemplated by this Agreement, or otherwise prevent ZEFER Northeast from
performing its obligations under this Agreement, and would not have a Material
Adverse Effect.
ARTICLE V
CONDUCT OF BUSINESS PENDING THE CLOSING
SECTION 5.1 Conduct of Business by the Company Pending the Closing. The
Company covenants and agrees that, during the period from the date of this
Agreement and continuing until the Closing, unless ZEFER shall otherwise agree
in writing, which agreement shall not be unreasonably withheld, the Company
shall conduct its business only in, and the Company shall not take any action
except in, the ordinary course of business and in a manner consistent with past
practice other than actions expressly provided for in this Agreement; and the
Company shall use all reasonable commercial efforts to preserve intact the
business organization of the Company, to keep available the services of the
present officers, employees and consultants of the Company and to preserve the
present relationships of the Company with customers, suppliers and other persons
with which the Company has business relations. By way of amplification and not
limitation, except as expressly provided for in this Agreement, the Company
shall not, during the period from the date of this Agreement and continuing
until the Closing, directly or indirectly do, or propose to do, any of the
following without the prior written consent of ZEFER:
(1) amend the Articles of Organization or Operating Agreement of the
Company;
(2) issue, sell, pledge, dispose of or encumber, or authorize the
issuance, sale, pledge, disposition or encumbrance of, any membership share
interests of the Company of any class, or any options, warrants, convertible
securities or other rights of any kind to acquire any shares of capital stock,
or any other ownership interest (including, without limitation, any phantom
interest) in the Company;
(3) except in the ordinary course of business, sell, pledge, dispose of or
encumber any assets (tangible or intangible) of the Company except for (i)
dispositions of obsolete or worthless assets and (ii) sales of assets not in
excess of $10,000 in the aggregate;
-16-
(4) (i) declare, set aside, make or pay any dividend or other
distribution (whether in cash, stock or property or any combination thereof) in
respect of any of its membership share interests, (ii) split, combine or
reclassify any of its membership share interests or issue or authorize or
propose the issuance of any other securities in respect of, in lieu of or in
substitution for its membership share interests or (iii) amend the terms or
change the period of exercisability of, purchase, repurchase, redeem or
otherwise acquire, any of its securities including without limitation, Units or
any option, warrant or right, directly or indirectly, to acquire Units, or
propose to do any of the foregoing;
(5) (i) acquire (by merger, consolidation, or acquisition of stock or
assets) any corporation, partnership or other business organization or division
thereof; (ii) except in the ordinary course of business and only under the
Company's revolving line of credit, incur any indebtedness for borrowed money or
issue any debt securities or assume, guarantee or endorse or otherwise as an
accommodation become responsible for, the obligations of any person or, except
in the ordinary course of business consistent with past practice, make any loans
or advances; (iii) enter into or amend any material contract or agreement; (iv)
authorize any capital expenditures or purchases of fixed assets which are, in
the aggregate, in excess of $25,000; or (v) enter into or amend any contract,
agreement, commitment or arrangement to effect any of the matters prohibited by
this Section 5.1(e);
(6) increase the compensation payable or to become payable to its
officers, increase compensation payable or to become payable to its employees
other in the ordinary course of business, or grant any severance or termination
pay to, or enter into any employment or severance agreement with any director,
officer or other employee of the Company, or establish, adopt, enter into or
amend any collective bargaining, bonus, profit sharing, thrift, compensation,
stock option, restricted stock, pension, retirement, deferred compensation,
employment, termination, severance or other plan, agreement, trust, fund, policy
or arrangement for the benefit of any current or former directors, officers or
employees, except, in each case, as may be required by law;
(7) take any action to change accounting policies or procedures
(including, without limitation, procedures with respect to revenue recognition,
payments of accounts payable and collection of accounts receivable);
(8) make any material tax election inconsistent with past practice or
settle or compromise any material federal, state, local or foreign tax liability
or agree to an extension of a statute of limitations;
(9) pay, discharge or satisfy any claims, liabilities or obligations
(absolute, accrued, asserted or unasserted, contingent or otherwise), other than
the payment, discharge or satisfaction in the ordinary course of business and
consistent with past practice of liabilities reflected or reserved against in
the Financial Statements or incurred in the ordinary course of business and
consistent with past practice; or
(10) take, or agree in writing or otherwise to take, any of the actions
described in Sections 5.1 (a) through (i) above, or any action which would make
any of the representations or warranties
-17-
of the Company contained in this Agreement untrue or incorrect or prevent the
Company from performing or cause the Company not to perform its covenants
hereunder.
SECTION 5.2 No Solicitation.
(1) The Company shall not, directly or indirectly, through any officer,
director, employee, representative or agent of the Company, (i) solicit,
initiate or encourage the initiation of any inquiries or proposals regarding any
merger, sale of substantial assets, sale of membership share interests
(including without limitation by way of a tender offer) or similar transactions
involving the Company other than the transactions contemplated by this Agreement
(any of the foregoing inquiries or proposals being referred to herein as an
"Acquisition Proposal"), (ii) engage in negotiations or discussions concerning,
--------------------
or provide any nonpublic information to any person relating to, any Acquisition
Proposal or (iii) agree to, approve or recommend any Acquisition Proposal.
(2) The Company shall immediately notify ZEFER after receipt of any
Acquisition Proposal, or any modification of or amendment to any Acquisition
Proposal, or any request for nonpublic information relating to the Company in
connection with an Acquisition Proposal or for access to the properties, books
or records of the Company by any person or entity that informs the Board of
Directors or any officer of the Company that it is considering making, or has
made, an Acquisition Proposal. Such notice to ZEFER shall be made orally and in
writing.
(3) The Company shall immediately cease and cause to be terminated any
existing discussions or negotiations with any persons (other than ZEFER)
conducted heretofore with respect to any of the foregoing. The Company agrees
not to release any third party from the confidentiality provisions of any
confidentiality agreement to which the Company is a party.
(4) The Company shall ensure that the officers, directors and employees
of the Company and any investment banker or other advisor or representative
retained by the Company are aware of the restrictions described in this Section
5.2.
ARTICLE VI
ADDITIONAL AGREEMENTS
SECTION 6.1 Access to Information. Upon reasonable notice, the Company
and ZEFER shall each afford to the officers, employees, accountants, counsel and
other representatives of the other, reasonable access, during the period from
the date of this Agreement to the Closing, to all its properties, books,
contracts, commitments and records and, during such period, the Company and
ZEFER each shall furnish promptly to the other party, and shall send copies
within a reasonable time upon reasonable request, all information concerning its
business, properties and personnel as such other party may reasonably request,
and each shall make available to the other the appropriate individuals
(including attorneys, accountants and other professionals) for discussion of the
other's business, properties and personnel as either ZEFER or the Company may
reasonably request.
-18-
SECTION 6.2 Consents; Approvals. The Company and ZEFER shall each use
their reasonable efforts to obtain all consents, waivers, approvals,
authorizations or orders (including, without limitation, all United States
governmental and regulatory rulings and approvals), and the Company and ZEFER
shall make all filings (including, without limitation, all filings with United
States governmental or regulatory agencies) required in connection with the
authorization, execution and delivery of this Agreement by the Company, on the
one hand, and ZEFER, on the other hand, and the consummation by them of the
transactions contemplated hereby, in each case as promptly as practicable. The
Company and ZEFER shall furnish promptly all information required to be included
in any application or other filing to be made pursuant to the rules and
regulations of any United States or foreign governmental body in connection with
the transactions contemplated by this Agreement.
SECTION 6.3 Notification of Certain Matters. The Company shall give
prompt notice to ZEFER and ZEFER Northeast, and ZEFER and ZEFER Northeast shall
give prompt notice to the Company, of (i) the occurrence or nonoccurrence of any
event the occurrence or nonoccurrence of which would be likely to cause any
representation or warranty contained in this Agreement to become materially
untrue or inaccurate, or (ii) any failure of the Company, the Equityholders,
ZEFER or ZEFER Northeast, as the case may be, materially to comply with or
satisfy any covenant, condition or agreement to be complied with or satisfied by
it hereunder; provided, however, that the delivery of any notice pursuant to
this Section shall not limit or otherwise affect the remedies available
hereunder to the party receiving such notice; and provided further that failure
to give such notice shall not be treated as a breach of covenant for the
purposes of Sections 7.2(a) or 7.3(a) unless the failure to give such notice
results in material prejudice to the other party.
SECTION 6.4 Further Action. Upon the terms and subject to the conditions
hereof each of the parties hereto shall use all reasonable efforts to take, or
cause to be taken, all actions and to do, or cause to be done, all other things
necessary, proper or advisable to consummate and make effective as promptly as
practicable the transactions contemplated by this Agreement, to obtain in a
timely manner all necessary waivers, consents and approvals and to effect all
necessary registrations and filings, and otherwise to satisfy or cause to be
satisfied all conditions precedent to its obligations under this Agreement.
SECTION 6.5 Public Announcements. ZEFER and the Company shall consult
with each other before issuing any press release with respect to this Agreement
or the transactions contemplated hereby and shall not issue any such press
release or make any such public statement without the prior consent of the other
party, which shall not be unreasonably withheld; provided, however, that ZEFER
may, without the prior consent of the Company, issue such press release or make
such public statement as may upon the advice of counsel be required by law if it
has used reasonable efforts to consult with the Company prior thereto.
SECTION 6.6 Conveyance Taxes. ZEFER, ZEFER Northeast and the Company
shall cooperate in the preparation, execution and filing of all returns,
questionnaires, applications, or other documents regarding any gains, sales,
use, transfer, value added, stock transfer and stamp taxes, any transfer,
recording, registration and other fees, and any similar taxes which become
-19-
payable in connection with the transactions contemplated hereby that are
required or permitted to be filed at or before the Closing.
SECTION 6.7 Reservation of Shares. ZEFER agrees to reserve 10,000 shares
of ZEFER Common Stock for future grants of stock or options to employees of the
Company following the Closing Date, which shares shall be separate and apart
from any additional shares that may be issued under any employee benefit plan of
ZEFER in which such employees are entitled to participate.
SECTION 6.8 Noncompetition/Nonsolicitation. (a) For a period of 18
months after the Closing Date (the "Noncompete Period"), each Equityholder shall
-----------------
not, within the United States, directly or indirectly own, manage, control,
participate in, consult with, render services for, or in any manner engage in
any business competing with the web page design, digital branding and consulting
businesses of ZEFER, ZEFER Northeast or their subsidiaries or any such business
in which ZEFER, ZEFER Northeast or any of their subsidiaries has requested and
received information relating to the acquisition of such business by ZEFER,
ZEFER Northeast and the subsidiaries and of which such Equityholder had
knowledge prior to the termination of such Equityholder's Employment Period (as
defined in the Employment Agreement); provided that passive ownership of less
than 5% of the outstanding stock of any publicly-traded corporation shall not,
in and of itself, be deemed to violate this Section 6.8.
(b) During the Noncompete Period, each Equityholder shall not
directly or indirectly through another entity (i) induce or attempt to induce
any employee of ZEFER, ZEFER Northeast or their subsidiaries to leave the employ
of ZEFER, ZEFER Northeast or such subsidiary, or in any way interfere with the
relationship between ZEFER, ZEFER Northeast and any subsidiary and any employee
thereof, (ii) hire any person who was an employee of ZEFER, ZEFER Northeast or
any subsidiary within 180 days prior to the time such employee was hired by the
Equityholder, (iii) induce or attempt to induce any customer, supplier, licensee
or other business relation of ZEFER, ZEFER Northeast or any subsidiary to cease
doing business with ZEFER, ZEFER Northeast or such subsidiary or in any way
interfere with the relationship between any such customer, supplier, licensee or
business relation and ZEFER, ZEFER Northeast and any subsidiary or (iv) directly
or indirectly acquire or attempt to acquire an interest in any business relating
to the web page design, digital branding and consulting business of ZEFER, ZEFER
Northeast and any subsidiary or with which ZEFER, ZEFER Northeast or any
subsidiary has entertained discussions or has requested and received information
relating to the acquisition of such business by ZEFER, ZEFER Northeast and any
subsidiary and of which such Equityholder had knowledge prior to the termination
of such Equityholder's Employment Period (as defined in the Employment
Agreement).
(c) If, at the time of enforcement of this Section 6.8, a court holds
that the restrictions stated herein are unreasonable under circumstances then
existing, the parties hereto agree that the maximum duration, scope or
geographical area reasonable under such circumstances shall be substituted for
the stated period, scope or area and that the court shall be allowed to revise
the restrictions contained herein to cover the maximum duration, scope and area
permitted by law. The parties hereto agree that money damages would be an
inadequate remedy for any breach of this Section 6.8. Therefore, in the event a
breach or threatened breach of this Section 6.8, ZEFER,
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ZEFER Northeast or its successors or assigns may, in addition to other rights
and remedies existing in their favor, apply to any court of competent
jurisdiction for specific performance and/or injunctive or other relief in order
to enforce, or prevent any violations of, the provisions hereof (without posting
a bond or other security).
SECTION 6.9 Employee Bonus Pool. On the date that is six months after the
Closing Date (the "Employee Bonus Date"), or in any event, not later than thirty
-------------------
(30) days thereafter, ZEFER shall cause the Company to pay to each employee
listed on Schedule 6.9 attached hereto a bonus in the amount listed on such
schedule, provided that such employee was employed by the Company (or another
division or subsidiary of ZEFER) on the Employee Bonus Date, and provided
further that in the event such employee is not so employed on the Employee Bonus
Date, the Company shall, if so directed by the Equityholders, pay such bonus to
such employee. The aggregate amount of bonuses paid pursuant to this Section 6.9
shall not exceed $1.0 million.
ARTICLE VII
CONDITIONS TO THE PURCHASE AND SALE OF SHARES
SECTION 7.1 Conditions to Obligation of Each Party to Effect the Purchase
and Sale of Units. The respective obligations of each party to effect the
transactions contemplated by this Agreement shall be subject to the satisfaction
at or prior to the Closing of the following conditions:
(1) No Injunctions or Restraints; Illegality. No temporary restraining
order, preliminary or permanent injunction or other order issued by any court of
competent jurisdiction or other legal restraint or prohibition preventing the
consummation of the transactions contemplated by this Agreement shall be in
effect, nor shall any proceeding brought by any administrative agency or
commission or other governmental authority or instrumentality, seeking any of
the foregoing be pending; and there shall not be any action taken, or any
statute, rule, regulation or order enacted, entered, enforced or deemed
applicable to the transactions contemplated by this Agreement, which makes the
consummation of the transactions contemplated by this Agreement illegal; and
(2) Governmental Actions. There shall not have been instituted, pending
or threatened any action or proceeding (or any investigation or other inquiry
that might result in such an action or proceeding) by any governmental authority
or administrative agency before any governmental authority, administrative
agency or court of competent jurisdiction, nor shall there be in effect any
judgment, decree or order of any governmental authority, administrative agency
or court of competent jurisdiction, in either case, seeking to prohibit or limit
ZEFER or ZEFER Northeast from exercising all material rights and privileges
pertaining to its ownership of the Company or the ownership or operation by
ZEFER, ZEFER Northeast or any of their subsidiaries of all or a material portion
of the business or assets of ZEFER, ZEFER Northeast or any of their
subsidiaries, as a result of the transactions contemplated by this Agreement.
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SECTION 7.2 Additional Conditions to Obligations of ZEFER and ZEFER
Northeast. The obligations of ZEFER and ZEFER Northeast to effect the
transactions contemplated by this Agreement are also subject to the following
conditions:
(3) Representations and Warranties. The representations and warranties of
the Company and the Equityholders contained in this Agreement shall have been
true and correct in all material respects at and as of the date made, and shall
be true and correct in all material respects as of the Closing Date with the
same effect as though made on and as of the Closing Date. In addition, all
representations and warranties of the Company and the Equityholders that are
qualified by materiality or similar words shall have been true and correct
(giving effect to such qualification) in all respects when made and as of the
Closing Date. ZEFER and ZEFER Northeast shall have received a certificate to
such effect signed on behalf of the Company and on behalf of the Equityholders
by the Equityholders;
(4) Agreements and Covenants. The Company and the Equityholders shall
have performed or complied in all material respects with all agreements and
covenants required by this Agreement to be performed or complied with by each of
them at or prior to the Closing Date, and ZEFER and ZEFER Northeast shall have
received a certificate to such effect signed on behalf of the Company and on
behalf of the Equityholders by the Equityholders;
(5) Consents Obtained. All consents, waivers, approvals, authorizations
or orders required to be obtained, and all filings required to be made, by the
Company and the Equityholders for the due authorization, execution and delivery
of this Agreement and the consummation by them of the transactions contemplated
hereby shall have been obtained and made by the Company and the Equityholders;
(6) Opinion of Counsel to the Company. ZEFER and ZEFER Northeast shall
have received an opinion of Xxxxxxx, Xxxxxxxxx & Xxxxxxxxx LLP, counsel to the
Company, in substantially the form attached hereto as Exhibit 7.2(d);
(7) Stockholders Agreement. ZEFER shall have received executed
Stockholders Agreements (or counterpart signature pages thereto) from each of
the Equityholders; and
(8) Employment Agreements. ZEFER shall have received executed Employment
Agreements, substantially in the form of Exhibit 7.2(f), from Xxxxx Xxxx and
Xxxx Xxxxxxx.
SECTION 7.3 Additional Conditions to Obligation of the Company. The
obligation of the Company to effect the transactions contemplated by this
Agreement is also subject to the following conditions:
(9) Representations and Warranties. The representations and warranties
of the ZEFER and ZEFER Northeast contained in this Agreement shall have been
true and correct in all material respects at and as of the date made, and shall
be true and correct in all material respects as of the Closing Date with the
same effect as though made on and as of the Closing Date. In addition, all
representations and warranties of the ZEFER and ZEFER Northeast that are
qualified by materiality
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or similar words shall have been true and correct (giving effect to such
qualification) in all respects when made and as of the Closing Date. The Company
shall have received a certificate to such effect signed by the President of
ZEFER and ZEFER Northeast;
(10) Agreements and Covenants. ZEFER shall have performed or complied in
all material respects with all agreements and covenants required by this
Agreement to be performed or complied with by it on or prior to the Closing
Date, and the Company shall have received a certificate to such effect signed by
the President of ZEFER and ZEFER Northeast;
(11) Consents Obtained. All consents, waivers, approvals, authorizations
or orders required to be obtained, and all filings required to be made, by ZEFER
and ZEFER Northeast for the due authorization, execution and delivery of this
Agreement and the consummation by it of the transactions contemplated hereby
shall have been obtained and made by ZEFER and ZEFER Northeast;
(12) Opinion of Counsel to ZEFER and ZEFER Northeast. The Company shall
have received an opinion of Ropes & Xxxx, counsel to ZEFER and ZEFER Northeast,
in substantially the form attached hereto as Exhibit 7.3(d); and
(13) Registration Agreement. ZEFER shall have entered into a Registration
Agreement with the Equityholders in substantially the form attached hereto as
Exhibit 7.3(e).
(14) Employment Agreements. The Equityholders shall have received
executed Employment Agreements, substantially in the form of Exhibit 7.2(f),
from ZEFER.
ARTICLE VII
INDEMNIFICATION
SECTION 8.1 Indemnification.
(1) Survival of Representations and Warranties. The representations and
------------------------------------------
warranties of the Company, the Equityholders, ZEFER and ZEFER Northeast made in
this Agreement and in the documents and certificates delivered in connection
herewith shall survive the Closing until the second anniversary of the Closing
Date (except for those contained in (i) Sections 2.2 (Authority), 2.5 (The
Units), 3.3 (Capitalization), 3.4 (Authority Relative to this Agreement) and
3.11 (Employee Benefit Plans, Employment Agreements), which shall survive the
Closing and shall continue in full force and effect without limit as to time
(subject to any applicable statutes of limitations and any extensions or waivers
thereof with respect to employee benefit matters) and (ii) Section 3.15 (Taxes),
which shall survive the Closing and shall continue in full force and effect
until 60 days after the expiration of the applicable statute of limitations,
including any extensions or waivers thereof)(the "Indemnity Period") and shall
----------------
remain operative and in full force and effect through the end of the Indemnity
Period regardless of any investigation made by or on behalf of any other party
hereto, any person controlling any such party or any of their officers or
directors, whether prior to or after the execution of this Agreement. No claim
for indemnification under this Section 8.1 for
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breach of a representation or warranty may be commenced after the Indemnity
Period, provided, however, that claims made within the applicable time period
-------- -------
shall survive to the extent of such claim until such claim is finally determined
and, if applicable, paid.
(2) Indemnification of ZEFER and ZEFER Northeast. The Equityholders agree
--------------------------------------------
to jointly and severally indemnify, defend, protect, and hold harmless each of
ZEFER, ZEFER Northeast the Company and each of their respective subsidiaries and
affiliates (each in its capacity as an indemnified party, an "Indemnitee") at
----------
all times from and after the date of this Agreement from and against all claims,
damages, actions, suits, proceedings, demands, assessments, adjustments, costs
and expenses (including specifically, but without limitation, reasonable
attorneys' fees and expenses of investigation) (collectively "Damages") incurred
-------
by such Indemnitee as a result of or incident to (i) any breach of any
representation or warranty of the Company or the Equityholders set forth herein
or in any certificate or other document delivered in connection herewith as of
the date made (as such representation or warranty would read if all
qualifications as to knowledge, materiality and Material Adverse Effect were
deleted from it) with respect to which a claim for indemnification is brought by
an Indemnitee within the applicable survival period, if any, described in
Section 8.1(a) and (ii) any breach or nonfulfillment by the Company or the
Equityholders, or any noncompliance by the Company or the Equityholders with,
any covenant, agreement, or obligation contained herein or in any certificate or
other document delivered in connection herewith.
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(3) Third Person Claims. Promptly after an Indemnitee 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 Indemnitee shall give the Equityholders written notice of such claim
or the commencement of such action or proceeding; provided, however, that the
-------- -------
failure to give such notice will not effect the Indemnitees' right to
indemnification hereunder with respect to such claim, action or proceeding,
except to the extent that the Equityholders have been actually and materially
prejudiced as a result of such failure. If the Equityholders notify the
Indemnitee within thirty (30) days from the receipt of the foregoing notice that
they wish to defend against the claim by the Third Person, then the
Equityholders shall have the right to assume and control the defense of the
claim by appropriate proceedings with counsel reasonably acceptable to
Indemnitee. The Indemnitee may participate in the defense, at its sole expense,
of any such claim for which the Equityholders shall have assumed the defense
pursuant to the preceding sentence, provided, however that counsel for the
-------- -------
Equityholders shall act as lead counsel in all matters pertaining to the defense
or settlement of such claims, suit or proceedings; provided, further, however,
-------- ------- -------
that Indemnitee shall control the defense of any claim or proceeding that in
Indemnitee's reasonable judgment could have a material and adverse effect on
Indemnitee's business apart from the payment of money damages. The Indemnitee
shall be entitled to indemnification for the reasonable fees and expenses of its
counsel for any period during which the Equityholders have not assumed the
defense of any claim. Whether or not the Equityholders shall have assumed the
defense of any claim, neither the Indemnitee nor the Equityholders shall make
any settlement with respect to any such claim, suit or proceeding without the
prior written consent of the other, which consent shall not be unreasonably
withheld or delayed. It is understood and agreed that in situations where
failure to settle a claim expeditiously could have an adverse effect on the
party wishing to settle, the failure of a party controlling the defense to act
upon a request for consent to such settlement within five business days of
receipt of notice thereof shall be deemed to constitute consent to such
settlement for purposes of this Section 8.1.
(4) Limitations on Indemnifications. No Indemnitee shall be entitled to
-------------------------------
indemnification under this Section 8.1 for Damages relating to breaches of
representations and warranties set forth herein or in any certificate or
document delivered in connection herewith until the aggregate amount of Damages
incurred by such Indemnitee, together with Damages suffered with respect to all
other claims for indemnification pursuant to this Agreement by all other
Indemnitees, exceeds $25,000, at which time such Indemnitees shall be entitled
to indemnification for the entire aggregate cumulative amount of all Damages up
to a maximum aggregate liability equal to the Cash/Note Consideration; provided,
--------
however, that with respect to the matters set forth in Section 3.15, ZEFER and
-------
ZEFER Northeast shall be entitled to indemnification for the entirety of such
Damages (which indemnification amount shall not be included in determining
whether Damages exceed $25,000 for purposes of this Section 8.1(d)).
(5) Indemnification by ZEFER. Subject to the provisions of this Section
------------------------
8.1, ZEFER agrees to indemnify, defend, protect and hold harmless each of the
Equityholders (the "Equityholder Indemnitees") from and against any and all
Damages incurred or suffered by such Equityholder Indemnitees as a result of or
incident to (i) any breach of any representation or warranty of ZEFER or ZEFER
Northeast set forth herein or in any certificate or other document delivered in
connection herewith as of the date made (as such representation or warranty
would read
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if all qualifications as to knowledge, materiality and Material Adverse Effect
were deleted from it) with respect to which a claim for indemnification is
brought by such Equityholder Indemnitees within the applicable survival period,
if any, described in Section 8.1(a), (ii) any breach or nonfulfillment by ZEFER
or ZEFER Northeast, or any noncompliance by ZEFER or ZEFER Northeast with, any
covenant, agreement, or obligation of ZEFER or ZEFER Northeast contained herein
or in any certificate or other document delivered in connection herewith as of
the date made (the "Equityholder Damages"). ZEFER shall reimburse the
Equityholder Indemnitees for any Equityholder Damages to which this Section 8.1
relates only if a claim for indemnification is made by the Equityholder
Indemnitees within the Indemnity Period.
(6) Set-Off. ZEFER, as maker of the ZEFER Notes, may set off and apply
-------
the amount of any Damages referenced in this Section 8.1 against any amounts
payable under the ZEFER Notes.
SECTION 8.2 Survival. The agreements set forth in Section 8.1 shall
survive independently and Article I and Sections 6.4 and 6.7 shall survive the
Closing indefinitely.
ARTICLE IX
GENERAL PROVISIONS
SECTION 9.1 Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made if and when delivered personally or by overnight courier to the parties
at the following addresses or sent by electronic transmission, with confirmation
received, to the telecopy numbers specified below (or at such other address or
telecopy number for a party as shall be specified by like notice):
(1) If to ZEFER or ZEFER Northeast:
ZEFER Corp.
000 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: General Counsel
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
With copies to:
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
GTCR Fund VI, L.P.
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GTCR VI Executive Fund, L.P.
GTCR Associates VI
c/o GTCR Xxxxxx Xxxxxx, LLC
0000 Xxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxxx
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
(2) If to the Company:
spyplane LLC
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxx
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
With a copy to:
Xxxxxxx, Xxxxxxxxx & Xxxxxxxxx LLP
The ClockTower Building
000 0xx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
SECTION 9.2 Certain Definitions. For purposes of this Agreement, the
term:
(1) "affiliate" means a person that directly or indirectly, through one
or more intermediaries, controls, is controlled by, or is under common control
with, the first mentioned person;
(2) "business day" means any day in which the New York Stock Exchange is
open for trading;
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(3) "control" (including the terms "controlled by" and "under common
control with") means the possession, directly or indirectly or as trustee or
executor, of the power to direct or cause the direction of the management or
policies of a person, whether through the ownership of stock, as trustee or
executor, by contract or credit arrangement or otherwise;
(4) "knowledge" when used herein means the actual knowledge after
reasonable investigation of any director or executive officer of the Company.
(5) "person" means an individual, corporation, partnership, association,
trust, unincorporated organization, other entity or group (as defined in Section
13(d)(3) of the Exchange Act); and
(6) "subsidiary" or "subsidiaries" of the Company, ZEFER or any other
person means any corporation, partnership, joint venture or other legal entity
of which the Company, ZEFER or such other person, as the case may be (either
alone or through or together with any other subsidiary), owns, directly or
indirectly, more than 50% of the stock or other equity interests the holders of
which are generally entitled to vote for the election of the board of directors
or other governing body of such corporation or other legal entity.
SECTION 9.3 Amendment. This Agreement may be amended by the parties
hereto by action taken by or on behalf of their respective Boards of Directors
at any time prior to the Closing. This Agreement may not be amended except by an
instrument in writing signed by the parties hereto.
SECTION 9.4 Waiver. At any time prior to the Closing, any party hereto
may with respect to any other party hereto (a) extend the time for the
performance of any of the obligations or other acts, (b) waive any inaccuracies
in the representations and warranties contained herein or in any document
delivered pursuant hereto, or (c) waive compliance with any of the agreements or
conditions contained herein. Any such extension or waiver shall be valid only
if set forth in an instrument in writing signed by the party or parties to be
bound thereby.
SECTION 9.5 Expenses of Transaction. Whether or not the transactions
provided for herein are consummated, each of the parties hereto will assume and
bear all expenses, costs and fees (including legal and accounting fees and
expenses) incurred by such party in connection with the preparation, negotiation
and execution of this Agreement and the transactions contemplated hereby;
provided, however, that the Equityholders will assume and bear all expenses,
costs and fees (including legal and accounting fees and expenses) in excess of
$45,000 incurred by the Company in connection with the preparation, negotiation
and execution of this Agreement and the transactions contemplated hereby.
Expenses, costs and fees of the Company which total, in the aggregate, less than
$45,000 as of the Closing Date shall be paid by ZEFER as of the Closing Date
provided that one or more reasonably detailed invoices are provided to ZEFER one
business day prior to the Closing.
SECTION 9.6 Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
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SECTION 9.7 Severability. If any term or other provision of this
Agreement is held to be invalid, illegal or unenforceable under any rule of law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not materially affected in
any manner adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or unenforceable, in lieu of such invalid, illegal
or unenforceable provision, there shall be added automatically as a part of this
Agreement a legal, valid and enforceable provision as similar in economic and
legal effect to such invalid, illegal or unenforceable provision as may be
possible.
SECTION 9.8 Entire Agreement. This Agreement constitutes the entire
agreement and supersedes all prior agreements and undertakings, both written and
oral, among the parties, or any of them, with respect to the subject matter
hereof.
SECTION 9.9 Assignment. This Agreement shall not be assigned by any
party, by operation of law or otherwise; provided, however, that ZEFER and ZEFER
-------- -------
Northeast may assign this agreement to any entity controlling, controlled by or
under common control with ZEFER.
SECTION 9.10 Parties in Interest. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
person any right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement, including, without limitation, by way of subrogation.
SECTION 9.11 Failure or Indulgence Not Waiver; Remedies Cumulative. No
failure or delay on the part of any party hereto in the exercise of any right
hereunder shall impair such right or be construed to be a waiver of, or
acquiescence in, any breach of any representation, warranty or agreement herein,
nor shall any single or partial exercise of any such right preclude any other or
further exercise thereof or of any other right. All rights and remedies
existing under this Agreement are cumulative to, and not exclusive of, any
rights or remedies otherwise available.
SECTION 9.12 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of The Commonwealth of Massachusetts
without giving effect to the conflict of laws principles thereof.
SECTION 9.13 Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, each of the undersigned has executed this Agreement (or
has caused this Agreement to be executed by an officer thereunto duly
authorized) as of the date first written above.
ZEFER CORP.
By: /s/ Xxxx X. Xxxxxxxx
--------------------------
Xxxx X. Xxxxxxxx
Vice President
ZEFER CORP. NORTHEAST
By: /s/ Xxxx X. Xxxxxxxx
--------------------------
Xxxx X. Xxxxxxxx
Vice President
SPYPLANE LLC
By: /s/ illegible
--------------------------
Name:
Title:
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[Membership Share Purchase Agreement]
By: /s/ Xxxxx Xxxx
-----------------------------
Xxxxx Xxxx
By: /s/ Xxxx Xxxxxxx
-----------------------------
Xxxx Xxxxxxx
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