Exhibit 10
ASSET PURCHASE AND SALE AGREEMENT
by and among
NEW CENTURY TITLE COMPANY,
a wholly-owned subsidiary of CAPITAL TITLE GROUP, INC.,
BRIDGESPAN TITLE COMPANY,
a wholly-owned subsidiary of BRIDGESPAN, INC.,
BRIDGESPAN INC.
and
CAPITAL TITLE GROUP, INC.
Dated as of
September 8, 2001
ASSET PURCHASE AND SALE AGREEMENT
This ASSET PURCHASE AND SALE AGREEMENT dated as of September 8, 2001 (this
"AGREEMENT"), is entered into by and among NEW CENTURY TITLE COMPANY, a
California corporation ("BUYER") and a wholly-owned subsidiary of CAPITAL TITLE
GROUP, INC., a Delaware corporation ("CTG"), BRIDGESPAN TITLE COMPANY, a
California corporation ("SELLER") and a wholly-owned subsidiary of BRIDGESPAN
INC., a Delaware corporation ("BridgeSpan"), CTG (but only for purposes of
Sections 5.5 and 8.4 hereof and the guarantee set forth on the signature page
hereto) and BridgeSpan (but only for purposes of Section 8.2 hereof).
RECITALS
Seller owns and operates an underwritten title company in California under
the name of BridgeSpan Title Company.
Buyer wishes to purchase all of the assets and inventory of the Business
located at each of six locations currently operated by Seller in Santa ▇▇▇▇▇,
San Mateo, and Sacramento Counties in the State of California, and to continue
the Business in those Counties under its own name. Buyer also wishes to assume
the five leases underlying five of the six locations of the Business.
Seller wishes to sell to Buyer all of the assets and inventory of the
Business and to assign to Buyer the leases underlying five locations of the
Business.
Terms not defined herein, shall have the meanings ascribed to them in
Section 10.
ARTICLE 1
PURCHASE AND SALE
1.1 AGREEMENT TO SELL AND PURCHASE ASSETS. Subject to the terms and
conditions of this Agreement, Seller agrees to sell, assign, transfer and convey
to Buyer at the Closing, and Buyer agrees to purchase and acquire from Seller at
the Closing, all of Seller's right, title and interest, whatever, in and to the
assets listed on SCHEDULE 1.1 (the "ASSETS"). Seller's right, title and interest
in the Assets will be sold, assigned, transferred and conveyed to Buyer on the
Closing Date, free and clear of all Encumbrances.
1.2 LEASE ASSIGNMENTS. Described in SCHEDULE 1.2 hereto are locations of
certain sites leased by Seller (the "LEASED SITES"). At the Closing but
effective as of the Effective Time (as hereinafter defined), Seller shall sell,
transfer, and assign to Buyer all of Seller's right, title and interest in and
to the leases for the Leased Sites pursuant to an Assignment and Assumption of
Lease on commercially reasonable terms and conditions mutually agreed upon by
both parties (the "LEASE ASSIGNMENTS").
1.3 EXCLUDED ASSETS. Except for the Assets set forth on Schedule 1.1 of
this Agreement, all other assets of Seller are excluded from the purchase and
sale contemplated by this Agreement (the "EXCLUDED ASSETS"). Without limiting
the generality of the foregoing, any and all revenue and accounts receivable for
the Business that accrued prior to the Effective Time shall be Excluded Assets,
to the extent that any such accrued revenues and accounts receivables are not
for services to be rendered by Buyer following the Effective Time.
1.4 ASSUMED LIABILITIES. On the Closing Date, but effective as of the
Effective Time, Buyer shall assume, become responsible for and agree to
discharge only the following specifically enumerated obligations and liabilities
of Seller (the "ASSUMED Liabilities"):
1.4.1 Subject to the provisions of Section 5.5, the obligations
payable pursuant to, and other obligations and liabilities arising out of or
resulting from, the leases for the Leased Sites that arise or accrue after the
Effective Time, but only to the extent that the leases are assigned to Buyer at
the Effective Time, and any lease that is not be assigned to Buyer at the
Effective Time will be an Excluded Liability;
1.4.2 The obligations payable pursuant to, and other obligations and
liabilities arising out of or resulting from, Buyer's or Buyer assignee's
ownership or operation of the Assets or the Business that arise or accrue after
the Effective Time, due to the ownership or operation of the Assets or the
Business after the Effective Time, including, but not limited to:
(a) Obligations and liabilities under all real estate closings,
title preliminaries, title policy issuances and other transactions that are part
of the Assets (including those that are in process as of the Closing) being
transacted as part of the Business on and after the Effective Time;
(b) Liabilities and custodial obligations arising under any trust
accounts that constitute part of the Assets from and after the Effective Time
(including all such trust accounts existing as of the Effective Time);
(c) Wages, unemployment insurance contributions, termination
payments, retirement, pensions, profit sharing, bonus, severance pay,
disability, health, accrued time off, or other benefits paid or payable or
obligations owed to the Transferred Employees that accrue or arise after the
Effective Time;
(d) Liabilities arising from any accounts payable and premiums
due to underwriters that accrue after the Effective Time; and
1.4.3 Obligations and liabilities accruing or arising after the
Effective Time under any Assumed Contract.
1.5 EXCLUDED LIABILITIES. "Excluded Liabilities" shall mean every liability
of Seller other than the Assumed Liabilities. All of the Excluded Liabilities
shall remain, as between Buyer and Seller, the sole responsibility of and shall
be retained, paid, performed and discharged solely by Seller. Excluded
Liabilities shall include, but not be limited by, any liability, incurred prior
to the Effective Time:
1.5.1 in regard to the operation or ownership of any Leased Site or
Asset, or from the conduct of the Business of Seller, which arises after the
Effective Time but which arises directly out of, but only to the extent that it
arises directly out of, any violation or breach by Seller of, any
misrepresentation by Seller in, any default by Seller under, or any failure by
Seller to perform or comply with, any representation, warranty, covenant,
obligation, or other provision of any contract, agreement, or this Agreement, or
any event which with the passing of time or the giving of notice, or both, would
constitute such a violation, breach, misrepresentation, default or failure by
Seller that in each case occurred prior to the Effective Time;
1.5.2 arising from any accounts payable and premiums due to
underwriters that accrued prior to the Effective Time or arising from rent or
monies payable under any lease or contract of Seller that accrued prior to the
Effective Time;
1.5.3 for (i) any taxes arising as a result of Seller's operation of
its business or ownership of the Leased Sites and Assets prior to the Effective
Time, (ii) any taxes that will arise as a result of the transfer of the Leased
Sites and Assets pursuant to this Agreement and (iii) any deferred taxes of any
nature of Seller;
1.5.4 arising out of or relating to Seller's credit facilities or any
security interest related thereto;
1.5.5 arising under any environmental laws relating to the operation
of Seller's business at the Leased Sites or Seller's leasing, ownership or
operation of real property at the Leased Sites or otherwise, provided such
liability was incurred prior to the Effective Time;
1.5.6 under any of the following: unemployment insurance
contributions, termination payments, retirement, pension, profit-sharing, bonus,
severance pay, disability, health, accrued time off, or other employee benefit
plans, agreements or understandings of any kind for Seller's employees or former
employees, or both, provided such liability was incurred prior to the Effective
Time;
1.5.7 under any employment, severance, retention or termination
agreement with any employee of Seller, provided such liability was incurred
prior to the Effective Time;
1.5.8 arising out of or relating to any grievance of a Seller
employee, whether or not the affected employees are hired by Buyer, provided
such liability was incurred prior to the Effective Time;
1.5.9 of Seller to any of its stockholders;
1.5.10 to indemnify, reimburse or advance amounts to any officer,
director, employee or agent of Seller, provided such liability was incurred
prior to the Effective Time;
1.5.11 to distribute to any of Seller's stockholders or otherwise
apply all or any part of the consideration received hereunder;
1.5.12 arising out of any claim, counterclaim, action, suit, order,
proceeding, litigation, arbitration or investigation pending as of the Effective
Time, whether or not set forth in the Schedules hereto, or any claim,
counterclaim, action, suit, order, proceeding, litigation, arbitration or
investigation commenced after the Effective Time and to the extent arising out
of any occurrence or event happening prior to the Effective Time, including, but
not limited to, escrow and title claims and losses; and
1.5.13 arising out of or resulting from Seller's noncompliance with
any law, rule, regulation, or other similar requirement, or order of any
governmental body, including, but not limited to, unclaimed property not
escheated to the State.
1.6 OBLIGATIONS UNDER THIS AGREEMENT. For purposes of clarification, each
party shall remain responsible for its respective obligations under this
Agreement and any other agreement entered into in connection herewith.
ARTICLE 2
CONSIDERATION; ALLOCATION; PAYMENT
2.1 ASSUMPTION; PURCHASE; CONSIDERATION. In consideration of the sale,
conveyance, transfer and assignment of the Assets at the Closing Buyer shall:
2.1.1 assume all of Seller's obligations arising from and after the
Effective Time under the leases for the Leased Sites, pursuant to the Lease
Assignments;
2.1.2 accept the Lease Assignments and the Assets;
2.1.3 assume the Assumed Liabilities; and
2.1.4 pay to Seller the Purchase Price, less the ▇▇▇▇▇▇▇ Money
Deposit.
2.2 PURCHASE PRICE. The purchase price for the Assets shall be $3,250,000,
subject to adjustment pursuant to Section 2.3 (the "PURCHASE PRICE"). At the
Closing, Buyer shall pay to Seller by transfer of immediately available funds to
one or more bank accounts designated by Seller the Purchase Price, less the
▇▇▇▇▇▇▇ Money Deposit.
2.3 PURCHASE PRICE ADJUSTMENT. The Purchase Price will be adjusted by
adding to it the amounts equal to (i) one hundred (100%) of the accrued paid
time off due to Transferred Employees upon the termination of their employment
with Seller, and (ii) fifty percent (50%) of the aggregate accrued paid time
off, and fifty percent (50%) of the aggregate severance pay of up to two weeks
salary, for all but five (5) of the employees of Seller as of the date hereof
(A) whose employment with Seller is terminated during the Interim Period,
whether voluntarily or involuntarily, or (B) who do not receive offers of
employment from Buyer during the Interim Period (the "PURCHASE PRICE
ADJUSTMENT").
2.4 ▇▇▇▇▇▇▇ MONEY DEPOSIT. Upon the signing of this Agreement, Buyer shall
deliver to the Seller a refundable ▇▇▇▇▇▇▇ money deposit of $250,000 (the
"▇▇▇▇▇▇▇ MONEY DEPOSIT"). The ▇▇▇▇▇▇▇ Money Deposit will be applied against the
Purchase Price upon Closing of the transactions contemplated hereby, or returned
to Buyer pursuant to Section 9.2.
2.5 ALLOCATION. The Purchase Price shall be allocated and apportioned among
the Assets as agreed to by the parties prior to Closing. Buyer and Seller agree
to each prepare and file on a timely basis with the Internal Revenue Service
(and applicable state tax authorities) substantially identical and supplemental
Internal Revenue Service Forms 8594 (and corresponding state tax forms). If any
tax authority challenges such allocation, the party receiving notice of such
challenge shall give the other prompt written notice thereof and the parties
shall cooperate in order to preserve the effectiveness of such allocation. The
parties agree to abide by such allocations for all tax reporting purposes.
Seller and Buyer acknowledge that the foregoing allocation may be amended upon
mutual agreement.
2.6 EFFECTIVE TIME. The effective time of the transactions contemplated
hereby shall be 12:01 a.m. local time on the first day following the Closing
(the "EFFECTIVE TIME"), notwithstanding the fact that the actual physical
exchange of documents shall take place at the Closing.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows. Each representation and
warranty of Seller below, except those set forth in Sections 3.1, 3.2, 3.3 and
3.4, is being given only to the best knowledge of Seller:
3.1 DUE EXECUTION. This Agreement has been duly executed and delivered by
Seller and constitutes the valid and binding agreement of Seller in accordance
with its terms. Seller has full corporate power and authority to execute,
deliver and perform this Agreement (and all other agreements and instruments to
be executed and delivered by Seller in connection herewith). Other than the
California Approval (as defined in Section 5.1.5) or except as set forth on
SCHEDULE 3.10 hereto, no authorization, consent or approval of, or filing with,
any public body, court or authority is necessary on the part of Seller for the
consummation by Seller of the transactions contemplated by this Agreement and
its obligations hereunder.
3.2 NO VIOLATION OF OTHER INSTRUMENTS. Except as set forth on SCHEDULE
3.10, the execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated hereby will not, violate any
provisions (including provisions requiring any consent or approval) of any
charter, bylaw, mortgage, lien, order, judgment, decree, or of any material
lease, agreement or instrument to which Seller is a party or by which Seller is
bound, and will not violate any other material restriction of any kind or
character to which Seller is subject.
3.3 CORPORATE STATUS OF SELLER. Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of California
and is duly qualified to do business in California and in each jurisdiction in
which its owning, leasing or utilization of the Assets or conduct of the
Business makes such qualification necessary. Seller has all requisite corporate
power and all governmental licenses, authorizations, consents and approvals
required for it to own, lease and operate the Business and the Assets as now
owned, leased and operated and to carry on the Business as now being conducted,
except where the failure to have such power, licenses, authorizations, consents
or approvals would not have a material adverse effect on the Business or Assets.
3.4 SELLER CAPITAL STOCK. BridgeSpan Inc. owns all outstanding shares of
the capital stock of Seller.
3.5 FINANCIAL STATEMENTS. Seller has heretofore delivered or caused to be
delivered to Buyer unaudited statements of income for the seven-month period
ended July 31, 2001, certified by the chief financial officer of Seller (such
financial statements are hereinafter collectively called the "FINANCIAL
STATEMENTS") for the Business. To the best knowledge of Seller management, the
Financial Statements are correct and complete, present fairly the financial
position, results of operations, and changes in financial position of the
business and operations of the Business as of the dates or for the periods
indicated, subject to normal year-end adjustments, are consistent with the books
and records of the entities to which they relate and have been prepared in
accordance with generally accepted accounting principles consistently applied
throughout the periods involved.
3.6 TITLE TO ASSETS. Seller has good and marketable title to the Assets;
provided, however, that, with respect to any of the Assets that Seller leases,
Seller's interest is limited to a leasehold interest therein. The Assets are not
subject to any Encumbrance other than those disclosed in SCHEDULE 1.1 to this
Agreement, which Encumbrances will be discharged or removed prior to Closing.
3.7 CONTRACTS AND AGREEMENTS. Each Assumed Contract is in full force and
effect, is valid and binding upon the Company and is enforceable by the Company
in accordance with its terms and, to the knowledge of the Company, is valid and
binding upon the other parties thereto and is enforceable by such other parties
in accordance with its terms, in each case except as could not reasonably be
expected to have a material adverse effect on the Business or the Assets. Seller
is not aware of any circumstance that could reasonably be expected to adversely
affect Seller in any material respect in the performance of its obligations
under any Assumed Contract.
3.8 PENDING LITIGATION; CONTINGENCIES. To the best knowledge of Seller
management, there are no actions, suits, proceedings or formal inquiries before
any court, arbitration board, regulatory agency or governmental body pending or
threatened against Seller and affecting the Assets or the Business.
3.9 NO DEFAULTS. To the best knowledge of Seller management, no event has
occurred and no condition exists which constitutes, or with the giving of notice
or lapse of time, or both, would constitute, a default by Seller in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any Assumed Contract or in any material permit or
governmental authorization to which Seller is a party or by which Seller or its
business or properties may be bound or adversely affected and that relates to
the Business or the Assets. Seller is not in default with respect to any order,
writ, injunction or decree of any court or in default under any order, material
regulation or demand of any federal, state, municipal or other governmental
agency that relates to the Business or the Assets and that could reasonably be
expected to have a material adverse effect on the Assets or the Business or the
consummation of the transactions contemplated by this Agreement.
3.10 COMPLIANCE WITH STATUTES AND REGULATIONS. To the best knowledge of
Seller management, Seller is, with respect to its operation of the Business, in
compliance in all respects with, and has at all times complied in all respects
with, all applicable statutes, permits and licensing requirements, zoning and
building codes, land use regulations, health, safety and environmental standards
and orders of, and all restrictions imposed by, all governmental authorities
having jurisdiction over it or the conduct of the Business and the ownership and
operation of the Assets, except where such non-compliance could not reasonably
be expected to have a material adverse effect on the Business or the Assets.
Except as described on SCHEDULE 3.10 hereto, there is no requirement applicable
to Seller to make any filing with, or obtain any permit, authorization, consent
or approval of, any governmental or administrative entity as a condition to the
lawful consummation by Seller of the transactions contemplated by this Agreement
and the other agreements and instruments to be executed and delivered by Seller
pursuant hereto, other than filings, the failure of making of which, would not
have a material adverse effect on the transactions contemplated by this
Agreement.
3.11 TAX MATTERS. Except as set forth on SCHEDULE 3.11 hereto, Seller has
timely filed all federal, state, local and foreign tax returns for income taxes,
sales taxes, withholding and payroll taxes, property taxes and other taxes of
every kind whatsoever required by law to have been filed prior to the date of
this Agreement and relating to the Business. Seller has paid or caused to be
paid all taxes relating to the Business which have become due, together with any
interest, if any, due thereon and any penalties or late fees associated
therewith, whether pursuant to such returns or pursuant to any assessments or
otherwise.
3.12 EMPLOYMENT OF LABOR. Seller currently employs approximately 54
employees in the Business. To the best knowledge of Seller management, Seller
has complied in all material respects with applicable federal and state laws and
regulations relating to the employment of labor in the Business, including the
provisions thereof relating to wages, hours, safety, fair employment practices,
and employee benefits. No employees of Seller are represented by a collective
bargaining unit.
3.13 INSURANCE. There is in effect for Seller with respect to the Business
such insurance against loss or damage of the kinds customarily insured against
by corporations engaged in the same or similar business or having similar
properties, with reputable insurers, in such amounts and by such methods as is
customary in the case of such corporations.
3.14 DISCLOSURE MATERIALS; UNTRUE STATEMENTS. In connection with the
execution and delivery of this Agreement, Seller has provided or caused to be
provided to Buyer ( or its agents, advisors or representatives) various
documents and other materials relating to Seller and the Business. Such
documents and other materials, together with the representations and warranties
of Seller contained in this Agreement, and the schedules, exhibits and
certificates furnished by Seller to Buyer (or its agents, advisors or
representatives) in connection with the execution of this Agreement or in
connection with the transactions contemplated hereby are referred to herein as
the "Disclosure Materials." To the best knowledge of Seller management, the
Disclosure Materials, taken as a whole, contain an accurate description of the
Business of Seller. Neither this Agreement nor any other exhibit, schedule or
certificate being delivered in connection herewith contains any untrue statement
of a material fact or, when taken as a whole, omits to state any material fact
necessary in order to make the statements contained in such document not
misleading.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
4.1 CORPORATE STATUS. Buyer is a corporation duly organized, validly
existing and in good standing under the laws of the State of California and has
full corporate power and authority to execute, deliver and perform this
Agreement (and all other agreements and instruments to be executed and delivered
by Buyer in connection herewith) and to consummate the transactions contemplated
hereby and thereby. The execution, delivery and performance of this Agreement
(or any other agreement or instrument to be executed and delivered in connection
herewith) does not, and the consummation of the transactions contemplated hereby
will not, with or without the passage of time or delivery of notice or both,
violate or constitute a default under any provisions (including provisions
requiring any consent or approval) of any charter, bylaw, mortgage, lien, order,
judgment or decree or material lease, agreement or instrument to which Buyer is
a party or by which Buyer or any of its assets is bound, and will not violate
any other material restriction to which Buyer is subject.
4.2 DUE AUTHORIZATION. The execution and delivery of this Agreement (and
all other agreements and instruments contemplated hereunder) by Buyer, the
performance by Buyer of its obligations hereunder and thereunder, and the
consummation by Buyer of the transactions contemplated hereby and thereby have
been duly and validly authorized by all necessary corporate action of Buyer.
This Agreement has been duly and validly executed and delivered by Buyer and
constitutes, and the other agreements and instruments to be executed and
delivered by Buyer pursuant hereto, upon their execution and delivery by Buyer,
will constitute legal, valid and binding agreements of Buyer.
4.3 CONSENT AND APPROVALS. There is no requirement applicable to Buyer to
make any filing with, or obtain any permit, authorization, consent or approval
of, any governmental or administrative entity as a condition to the lawful
consummation by Buyer of the transactions contemplated by this Agreement and the
other agreements and instruments to be executed and delivered by Buyer pursuant
hereto, other than filings, the failure of making of which would not have a
material adverse effect on the transactions contemplated by this Agreement.
4.4 LITIGATION. To the best knowledge of Buyer management, there are no
actions, suits, proceedings or formal inquiries before any court, arbitration
board, regulatory agency or governmental body pending or threatened against or
affecting Buyer that would prevent, delay or hinder the consummation of the
transactions contemplated by this Agreement
ARTICLE 5
CONDUCT OF BUSINESS PENDING THE CLOSING
5.1 CONDUCT OF BUSINESS PENDING THE CLOSING. Seller covenants and agrees
that, prior to the Closing Date, unless Buyer shall otherwise consent in writing
or as otherwise expressly contemplated or permitted by this Agreement:
5.1.1 The Business shall be conducted only in, and Seller shall not
take any action except in, the ordinary course, on an arm's length basis and in
accordance in all material respects with all applicable laws, rules and
regulations and past custom and practice; and Seller shall maintain its
facilities in good condition and repair (normal wear and tear excepted) and in
accordance with Seller's policies and procedures relating thereto as in effect
prior to the execution of this Agreement;
5.1.2 Seller shall not, directly or indirectly, sell, pledge, dispose
of, grant a security interest in, or otherwise encumber any of the Assets;
5.1.3 Seller shall maintain in force its current insurance (or
reinsurance) policies and not permit or allow them to be canceled or terminated
or reduced in coverage amount or any of the coverage thereunder to lapse, unless
simultaneously with such termination, cancellation, reduction in coverage amount
or lapse, replacement policies providing coverage equal to or greater than the
coverage under the canceled, terminated, reduced or lapsed policies for
substantially similar premiums are in full force and effect;
5.1.4 Seller (i) shall use its commercially reasonable efforts to
preserve intact the Assets, the Business and the goodwill associated therewith;
(ii) shall not take any action which would render, or which reasonably would be
expected to render, any representation or warranty made by it in this Agreement
or in any other agreement or instrument executed in connection with the
transactions contemplated hereby untrue in any material respect at, or at any
time prior to, the Closing Date; and (iii) shall notify Buyer of any emergency
or other change in the normal course of its business (as currently conducted) or
in the operation of its properties and of any governmental or third party
complaints, investigations or hearings (or communications indicating that the
same may be contemplated) if such emergency, change, complaint, investigation or
hearing would be material, individually or in the aggregate, to the Business
(taken as a whole) or to Seller's or Buyer's ability to consummate the
transactions contemplated by this Agreement;
5.1.5 Seller shall cooperate with Buyer in securing, and the parties
shall use commercially reasonable efforts to secure, from all required
subdivisions and agencies of the State of California, the full and unconditional
approval to the transfer of the Assets to Buyer, and the continuation (following
consummation of such transactions) of Seller's license to conduct title
insurance and escrow operations in Santa ▇▇▇▇▇, San Mateo, and Sacramento
Counties as contemplated by this Agreement (the "CALIFORNIA APPROVAL"); and
5.1.6 Seller shall use commercially reasonable efforts to secure any
Lease Assignments and any necessary consents to transfer and assign to Buyer the
Assumed Contracts and Buyer shall, upon Seller's reasonable request, assist
Seller in obtaining such consents.
5.2 NOTIFICATION. During the period subsequent to the execution of this
agreement and prior to the Closing Date (the "PRE-CLOSING PERIOD"), Seller shall
promptly notify Buyer in writing of:
5.2.1 the discovery by Seller of any event, condition, fact or
circumstance that occurred or existed on or prior to the date of this Agreement
and that caused or constitutes a material inaccuracy in or material breach of
any representation or warranty made by Seller in this Agreement;
5.2.2 any event, condition, fact or circumstance that occurs, arises
or exists after the date of this Agreement and that would cause or constitute a
material inaccuracy in or material breach of any representation or warranty made
by Seller in this Agreement if such event, condition, fact or circumstance had
existed on the date of this Agreement;
5.2.3 any material breach of any covenant or obligation of Seller
hereunder; and
5.2.4 any event, condition, fact or circumstance that occurs, arises
or exists after the date of this Agreement and that would make the timely
satisfaction of any of the conditions set forth in this Agreement impossible or
unlikely.
5.3 BUYER NOTIFICATION. During the Pre-Closing Period, Buyer shall promptly
notify Seller in writing of:
5.3.1 the discovery by Buyer of any event, condition, fact or
circumstance that occurred or existed on or prior to the date of this Agreement
and that caused or constitutes a material inaccuracy in or material breach of
any representation or warranty made by Buyer in this Agreement;
5.3.2 any event, condition, fact or circumstance that occurs, arises
or exists after the date of this Agreement and that would cause or constitute a
material inaccuracy in or material breach of any representation or warranty made
by Buyer in this Agreement if such event, condition, fact or circumstance had
existed on the date of this Agreement;
5.3.3 any material breach of any covenant or obligation of Buyer
hereunder ; and
5.3.4 any event, condition, fact or circumstance that occurs, arises
or exists after the date of this Agreement and that would make the timely
satisfaction of any of the conditions set forth in this Agreement impossible or
unlikely.
5.4 TRANSFERRED EMPLOYEES.
5.4.1 OFFER OF EMPLOYMENT. Subject to and in accordance with the
provisions of this Section 5.4, Buyer may, in its sole discretion, offer
employment to any or all of the employees who are employed by Seller in the
Business as of the date of this Agreement (the "EMPLOYEES"). Prior to the
Closing, Buyer, after notice to Seller as to the timing and method of contact,
may contact any or all of the Employees for the purpose of making offers of
employment with Buyer (or any affiliate designated by Buyer) after the Closing
Date and receiving written acceptances of such employment (in each case
contingent on consummation of the transactions contemplated by this Agreement).
Each Employee who is employed by Seller on the Closing Date and who is hired by
Buyer (or any affiliate designated by Buyer) as of the Effective Time as a
result of an offer of employment made by Buyer pursuant to this Section 5.4.1 is
hereafter referred to as a "TRANSFERRED EMPLOYEE". Transferred Employees shall
not include any person on a disability leave of more than twenty-six (26) weeks.
On a periodic basis following the date of this Agreement and prior to the
Closing, Buyer shall advise Seller of its intentions with respect to the
Employees it desire to extend or has extended offers to and the general status
of discussions with such Employees. Each Transferred Employee will be eligible
to participate in the benefit programs, plans, arrangements, payroll practices
(including vacation or paid time off entitlement) offered to employees of Buyer
(or any affiliate designed by Buyer that employs such Transferred Employee) from
time to time ("Buyer Employee Benefit Plans") pursuant to the terms of each such
plan, or in the absence of plan terms or provisions, in accordance with
regularly established policies or procedures of Buyer, and Buyer shall recognize
each Transferred Employee's service with Seller for purposes of eligibility and
vesting under any Buyer Employee Benefit Plan and for all general employment
purposes including, without limitation, seniority, vacation, personal time and
similar general employment purposes, provided that any paid time off offered by
Buyer in the calendar year of the Effective Time to any Transferred Employee may
be offset by any paid time off used by or paid to a Transferred Employee by
Seller in the calendar year of the Effective Time.
5.4.2 TRANSITION. The employment by Seller of the Transferred
Employees shall end at the close of business on the Closing Date and the
employment of the Transferred Employees by Buyer shall commence at the Effective
Time. Buyer shall have no obligation with respect to payments of salary,
compensation, wages, health or similar benefits, commissions, bonuses (deferred
or otherwise), severance, stock or stock options or any other sums due to any
Transferred Employee that accrued prior to the Effective Time. In addition,
Seller will be fully responsible for all amounts owing to Transferred Employees
prior to the Effective Time, subject to the amounts set forth in SECTION 2.3.
5.4.3 RETENTION OF EMPLOYEES PRIOR TO CLOSING. Seller agrees to use
reasonable efforts to assist Buyer in securing the employment after the Closing
Date of those Employees to whom Buyer (or any affiliate designated by Buyer)
makes or intends to make offers of employment pursuant to Section 5.4.1 above.
Seller shall not transfer any Employee to employment with Seller outside of the
Business prior to the Closing or without the consent of Buyer. Seller shall
notify Buyer promptly if notwithstanding the foregoing, any Employee terminates
employment with Seller after the date of this Agreement but prior to the
Closing.
5.4.4 NO RIGHT TO CONTINUED EMPLOYMENT OR BENEFITS. No provision in
this Agreement shall create any third party beneficiary or other right in any
person (including any beneficiary or dependent thereof) for any reason,
including, without limitation, in respect of continued, resumed or new
employment with Seller or Buyer (or any affiliate of Seller or Buyer) or in
respect of any benefits that may be provided, directly or indirectly, under any
plan or arrangement maintained by Seller, Buyer or any affiliate of Seller or
Buyer.
5.4.5 EMPLOYEE LIABILITIES ASSUMED. Buyer will not and does not assume
any other liability or obligation related to the Transferred Employees other
than those liabilities and obligations that arise out of employment of the
Transferred Employee by Buyer arising after the Effective Time.
5.4.6 SELLER TO DISTRIBUTE PURCHASE PRICE ADJUSTMENT TO EMPLOYEES.
Pursuant to SECTION 2.3, Buyer, at Closing, will pay Seller the Purchase Price.
As soon as practicable following the Closing, Seller will distribute to the
appropriate ex-employees of Seller, including any Transferred Employees, any
amounts for accrued and unused paid time off required by law to be paid by
Seller to such Seller ex-employees. Each of Seller and BridgeSpan hereby agrees
to indemnify Buyer and CTG from any Damages (as defined below) incurred by Buyer
or CTG arising out of Seller's failure to pay such Seller ex-employees any
amounts for accrued and unused paid time off required by law to be paid by
Seller to such Seller ex-employees.
5.5 LEASED SITES WITH LETTERS OF CREDIT. Seller agrees to leave in place
the letters of credit (the "LETTERS OF CREDIT") that guarantee Seller's
performance under the leases for the Leased Sites for the benefit of Buyer, for
two years following the Closing Date. Buyer agrees to use its best efforts to
negotiate for a release or reduction of the Letters of Credit as promptly as
practicable after the Effective Time. Buyer and Capital Title Group, Inc.,
agree, jointly and severally, to indemnify Seller for any and all monetary loss,
costs or damages incurred as a result of an exercise of the Letters of Credit
arising out of Buyer's default under the subject leases.
ARTICLE 6
CONDITIONS PRECEDENT TO CLOSING
The obligations of the Seller and Buyer arising under this Agreement to be
performed at the Closing Date are subject to fulfillment at or prior to the
Closing Date of each of the following conditions:
6.1 CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER. The obligations of Buyer
under this Agreement to consummate the transactions contemplated hereby to be
consummated at the Closing shall be subject to the satisfaction, at or prior to
the Closing, of all of the following conditions, any one or more of which may be
waived in writing at the option of Buyer:
6.1.1 All representations and warranties of Seller in this Agreement
or in any exhibit, schedule or document delivered pursuant hereto shall be true
and complete in all material respects, in each case when made and as of the
Closing Date as if made on and as of that date.
6.1.2 All of the terms, covenants and conditions to be complied with
and performed by Seller on or prior to the Closing Date shall have been complied
with or performed in all material respects.
6.1.3 All of the Assets and all of the Assumed Contracts, without
limitation, immaterial or otherwise, shall be fully assignable to Buyer.
6.1.4 Buyer shall have received a certificate or certificates, dated
as of the Closing Date, executed on behalf of Seller by an authorized executive
officer thereof, certifying that the conditions specified in SECTION 6.1 hereof
have been fulfilled and stating that the representations and warranties made by
Seller in this Agreement are true and correct in all material respects as of the
Closing Date.
6.1.5 There shall not be in effect any law, rule or regulation of any
governmental authority or court of competent jurisdiction restraining, enjoining
or otherwise preventing consummation of the transactions contemplated by this
Agreement.
6.1.6 Buyer shall have received evidence reasonably satisfactory to it
that the transactions contemplated by this Agreement have been approved by the
Board of Directors and, as applicable, shareholders of Seller, and by any
lenders or creditors of Seller, or any other party or entity of which consent is
required in order for Seller to enter into this Agreement, perform its
obligations hereunder and consummate the transactions contemplated hereby.
6.1.7 Seller shall have permitted Buyer and its representatives full
access during normal business hours and upon reasonable notice to all of the
properties, books, tax returns, contracts and records of Seller relating to the
Business or the Assets, and shall have provided all documents and information
with respect to the Business or the Assets as may have been reasonably requested
by Buyer or such representatives.
6.1.8 There shall be no action, proceeding or threatened, pending or
actual litigation to enjoin, restrain or prohibit the consummation of the
transactions contemplated by this Agreement or which would have the effect, if
successful, of imposing any material liability upon Buyer or materially
impairing the right of Buyer to own all of the Assets or to continue the
Business as presently conducted.
6.1.9 The Buyer shall have received the California Approval.
6.1.10 Seller shall have complied with all laws, rules, and
regulations necessary to consummate the transactions contemplated by this
Agreement, including but not limited to, any California corporation, Uniform
Commercial Code, or general business laws, necessary to consummate the
transactions contemplated by this Agreement except for such non compliance as
would not have a material adverse effect on the transactions contemplated by
this Agreement.
6.2 CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER. The obligations of
Seller under this Agreement to consummate the transactions contemplated hereby
to be consummated at the Closing shall be subject to the satisfaction, at or
prior to the Closing, of all the following conditions, any one or more of which
may be waived in writing at the option of Seller:
6.2.1 All representations and warranties of Buyer made in this
Agreement or in any exhibit, schedule or document delivered pursuant hereto
shall be true and complete in all material respects, in each case when made and
as of the Closing Date as if made on and as of that date.
6.2.2 All of the terms, covenants and conditions to be complied with
and performed by Buyer on or prior to the Closing Date shall have been complied
with or performed in all material respects.
6.2.3 Seller shall have received a certificate, dated as of the
Closing Date, executed on behalf of Buyer by an authorized executive officer
thereof, certifying that the conditions specified in SECTION 6.2 have been
fulfilled and stating that the representations and warranties made by Buyer in
this Agreement are true and correct in all material respects as of the Closing
Date.
6.2.4 There shall not be in effect any law, rule or regulation of any
governmental authority or court of competent jurisdiction restraining, enjoining
or otherwise preventing consummation of the transactions contemplated by this
Agreement.
6.2.5 Seller shall have received evidence reasonably satisfactory to
it that the transactions contemplated by this Agreement have been approved by
the Board of Directors of Buyer and, as applicable, shareholders of Buyer, and
by any other party or entity of which consent is required in order for Buyer to
enter into this Agreement, perform its obligations hereunder and consummate the
transactions contemplated hereby.
6.2.6 There shall be no action, proceeding or threatened, pending or
actual litigation to enjoin, restrain or prohibit the consummation of the
transactions contemplated by this Agreement.
6.3 WAIVER OF CONDITIONS. Seller may unilaterally waive any of the
conditions to closing set forth in SECTION 6.2 of this Agreement. Buyer may
unilaterally waive any of the conditions to closing set forth in SECTION 6.1 of
this Agreement.
ARTICLE 7
CLOSING
7.1 CLOSING. The transactions contemplated by this Agreement, including
payment of the Purchase Price, shall be consummated at a closing (the
"CLOSING"), which, except as may be otherwise agreed in writing by Buyer and
Seller, will be held at the offices of Squire, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., Two
Renaissance Square, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
subject to the satisfaction or waiver of the conditions set forth in Article 6,
at a mutually agreeable time and date within three business days after the date
all of the conditions precedent to Closing set forth under Article 6 have been
met or waived, or such other time as Buyer and Seller may mutually agree (the
"CLOSING DATE").
7.2 DELIVERIES AT CLOSING. At the Closing:
7.2.1 Seller shall deliver to Buyer the items described in clauses (a)
through (d) below, to the extent applicable with respect to the Closing:
(a) an executed general ▇▇▇▇ of sale and assignment, in form and
substance reasonably satisfactory to Buyer, with respect to the Assets to be
conveyed by Seller at the Closing and any other documents reasonably requested
by Buyer so as to convey to Buyer all right, title and interest in and to the
Assets free and clear of all Encumbrances;
(b) the officer's certificate referenced in Section 6.1.4;
(c) an executed Lease Assignment for each Leased Site; and
(d) all other documents, certificates, instruments or writings
reasonably requested by Buyer in connection herewith.
7.2.2 Buyer shall deliver to Seller the items described in clauses (a)
through (d) below, to the extent applicable with respect to the Closing:
(a) the Purchase Price, less the ▇▇▇▇▇▇▇ Money Deposit , by wire
transfer of immediately available funds to the account or accounts of Seller
(such account or accounts to be designated by Seller and disclosed to Buyer in
writing no later than two business days prior to the Closing along with any
information necessary for Buyer to complete a wire transfer of the Purchase
Price at Closing);
(b) an assumption agreement pursuant to which Buyer assumes at
the Closing the Assumed Liabilities being assigned at the Closing, in form and
substance reasonably satisfactory to Seller (the "ASSUMPTION AGREEMENT"),
executed by Buyer;
(c) an executed Lease Assignment for each Leased Site;
(d) the officer's certificate referenced in Section 6.2.3; and
(e) all other documents, certificates, instruments or writings
reasonably requested by Seller in connection herewith.
7.3 DELIVERY OF ASSETS. At Closing, Seller shall place Buyer in full
possession and control of the Assets being acquired.
7.4 RISK OF LOSS; OWNERSHIP. As of and following the Effective Time, Buyer
shall receive all benefits and bear all burdens incident to ownership with
respect to the Assets and operation of the Business. Without limiting the
generality of the foregoing, as of and following the Effective Time, Buyer
shall, INTER ALIA, be responsible for all losses, injuries, liabilities, and
damages sustained by, or caused as a result of operation or ownership of the
Assets or Business following the Effective Time.
7.5 SIMULTANEOUS ACTION. All actions taken at the Closing shall be deemed
to occur simultaneously.
ARTICLE 8
INDEMNIFICATION
8.1 SURVIVAL OF REPRESENTATIONS. All covenants to be performed prior to the
Closing, and all representations and warranties in this Agreement or in any
instrument delivered pursuant to this Agreement shall survive the consummation
of the transactions contemplated hereby and continue until the one-year
anniversary of the Effective Time (the "INDEMNIFICATION TERMINATION DATE");
PROVIDED that if any claims for indemnification have been asserted with respect
to any such representations, warranties and covenants prior to the
Indemnification Termination Date, the representations, warranties and covenants
on which any such claims are based shall continue in effect until final
resolution of any such claims. All covenants to be performed after the Effective
Time shall continue indefinitely.
8.2 INDEMNIFICATION TO BUYER. Subject to the limitations set forth in this
SECTION 8, from and after the Effective Time, Seller and BridgeSpan Inc. shall,
jointly and severally, indemnify, defend and hold harmless Buyer, Capital Title
Group, Inc., and their respective officers, directors and agents (each of the
foregoing parties is hereinafter referred to individually as a "BUYER
INDEMNIFIED PERSON" and collectively as "BUYER INDEMNIFIED PERSONS") from and
against any and all losses, costs, damages, liabilities, fees (including without
limitation attorneys' fees) and expenses (collectively, the "DAMAGES"), that any
of the Buyer Indemnified Persons incurs by reason of or in connection with (a)
any misrepresentation, breach of, or default in connection with, any of the
representations, warranties, covenants or agreements of the Seller contained in
this Agreement, including any exhibits or schedules attached hereto, (b) any
failure by Seller to pay or perform when due any of the Excluded Liabilities, or
(c) the provisions of Section 5.4.6 above. Any recovery for Damages by a Buyer
Indemnified Person hereunder shall be net of any insurance proceeds actually
recovered and/or net tax benefits realized by Buyer or any of its affiliates as
a result of such Damages.
8.3 BUYER INDEMNIFICATION DEDUCTIBLE. Anything elsewhere contained in this
SECTION 8 to the contrary notwithstanding, no Buyer Indemnified Person may
recover any Damages unless and until the aggregate amount of Damages incurred by
the Buyer Indemnified Persons exceeds $5,000.
8.4 INDEMNIFICATION TO SELLER. Subject to the limitations set forth in this
Section 8, from and after the Closing, Buyer and Capital Title Group, Inc.
shall, jointly and severally, indemnify, defend and hold harmless Seller,
BridgeSpan Inc, and their respective officers, directors and agents (each of the
foregoing persons is hereinafter referred to individually as a "SELLER
INDEMNIFIED PERSON" and collectively as "SELLER INDEMNIFIED PERSONS") from and
against any and all Damages that any of the Seller Indemnified Persons incurs by
reason of or in connection with (a) any misrepresentation, breach of or default
in connection with, any of the representations, warranties, covenants or
agreements of Buyer contained in this Agreement, (b) any failure by Buyer to pay
or perform when due any of the Assumed Liabilities or (c) the provisions of
Section 5.5 above. Any recovery for Damages by a Seller Indemnified Person
hereunder shall be net of any insurance proceeds actually recovered and/or net
tax benefits realized by Seller or any of its affiliates as a result of such
Damages.
8.5 SELLER INDEMNIFICATION DEDUCTIBLE. Anything elsewhere contained in this
SECTION 8 to the contrary notwithstanding, no Seller Indemnified Person may
recover any Damages unless and until the aggregate amount of Damages incurred by
the Seller Indemnified Persons exceeds $5,000.
8.6 Notice of Indemnified Damages.
8.6.1 If any Buyer Indemnified Person, on the one hand, or Seller
Indemnified Person, on the other hand (an "INDEMNIFIED PARTY"), has a claim or
potential claim which could give rise to an obligation on the part of the Buyer
or Seller, as the case may be, to provide indemnification (the "INDEMNIFYING
PARTY") pursuant to this Section 8, the Indemnified Party shall promptly give
the Indemnifying Party written notice thereof (an "INDEMNIFICATION CLAIM");
PROVIDED, HOWEVER, that the failure to give such prompt notice shall not prevent
any Indemnified Party from being indemnified hereunder for any Damages, except
to the extent that the failure to so promptly notify the Indemnifying Party
actually damages the Indemnifying Party.
8.6.2 In the event of a claim, a potential claim or the commencement
of any action or proceeding by a third party which could give rise to an
obligation to provide indemnification pursuant to this Section 8, the
Indemnified Party will give the Indemnifying Party prompt written notice thereof
(the "THIRD PARTY INDEMNIFICATION CLAIM"); PROVIDED, HOWEVER, that the failure
to give such prompt notice shall not prevent any Indemnified Party from being
indemnified hereunder for any Damages, except to the extent that the failure to
so promptly notify the Indemnifying Party actually damages the Indemnifying
Party.
8.6.3 Any Indemnifying Party will have the right at any time to assume
and thereafter conduct the defense of the Third Party Indemnification Claim with
counsel of his or its choice, reasonably satisfactory to the Indemnified Party.
However, unless and until an Indemnifying Party assumes the defense of the Third
Party Indemnification Claim, the Indemnified Party may defend against the Third
Party Indemnification Claim in any manner it reasonably may deem appropriate. At
such time as an Indemnifying Party assumes the defense of a Third Party
Indemnification Claim and counsel is retained by the Indemnifying Party, the
Indemnifying Party will not be liable to the Indemnified Party under this
Agreement for any fees of counsel subsequently incurred by the Indemnified Party
with respect to the same proceeding, provided that (i) the Indemnified Party
shall have the right to employ counsel in any such proceeding at its own expense
and (ii) if (A) the employment of counsel by the Indemnified Party has been
previously authorized by the Indemnifying Party, (B) the Indemnified Party shall
have reasonably concluded that there may be a conflict of interest between the
Indemnifying Party and the Indemnified Party in the conduct of any such defense
or (C) the Indemnifying Party shall not, in fact, have employed counsel to
assume the defense of such proceeding, then the fees and expenses of the
Indemnified Party's counsel shall be at the expense of the Indemnifying Party.
8.6.4 Notwithstanding Section 8.6.3, in no event will the Indemnified
Party consent to the entry of any judgment or enter into any settlement with
respect to the Third Party Indemnification Claim without the prior written
consent of each of the Indemnifying Parties, such consent not to be withheld
unreasonably.
8.6.5 In connection with any Third Party Indemnification Claim, the
Indemnified Party will provide the Indemnifying Party with such information and
cooperation as the Indemnifying Party may reasonably request in order to defend
such Third Party Indemnification Claim.
8.6.6 EXCLUSIVE REMEDY. The parties' rights to indemnification under
this Section 8 shall, from and after the Closing, constitute their respective
sole and exclusive remedy with respect to money damages for any claim arising
under or related to this Agreement or the transactions contemplated hereby.
ARTICLE 9
TERMINATION
9.1 TERMINATION. This Agreement may be terminated and the transactions
contemplated hereby may be abandoned at any time prior to the Closing Date, by
written notice by the terminating party to the other parties, as follows:
9.1.1 by mutual written consent of the Buyer and Seller;
9.1.2 by either Buyer or Seller if the Closing shall not have occurred
within 120 days of the date hereof (provided that the right to terminate this
Agreement under this Section 9.1.2 shall not be available to a party whose
failure to fulfill any obligation under this Agreement has been the cause of or
resulted in the failure of the Closing to occur on or before such date; and
provided further, that the right to terminate this Agreement under this Section
9.1.2 shall not be available if the failure to close within the time specified
is because the California Approval or the assignment of the Santa ▇▇▇▇▇ and the
San Mateo Title Plant Agreements (the "JOINT TITLE PLANT ASSIGNMENT") has not
been obtained);
9.1.3 by either Buyer or Seller if a court of competent jurisdiction
or other governmental entity shall have issued a nonappealable final order,
decree, or ruling or taken any other action, in each case having the effect of
permanently restraining, enjoining, or otherwise prohibiting the transactions
contemplated hereby;
9.1.4 by Seller if (i) the California Approval or the Joint Title
Plant Assignment is denied or not obtained because of the fault of Buyer not
cured within one-hundred twenty (120) days of the date hereof, or (ii) there has
been a material breach of any representation, warranty, covenant, or agreement
set forth in this Agreement on the part of Buyer, which breach shall not have
been cured, in the case of a representation or warranty, prior to the Closing
Date or, in the case of a covenant or agreement, within 10 business days
following receipt by Buyer of written notice of such breach from Seller; or
9.1.5 by Buyer if (i) the California Approval or the Joint Title Plant
Assignment is denied or not obtained because of the fault of Seller not cured
within one-hundred twenty (120) days of the date hereof, or (ii) there has been
a material breach of any representation, warranty, covenant, or agreement set
forth in this Agreement on the part of Seller, which breach shall not have been
cured, in the case of a representation or warranty, prior to the Closing Date
or, in the case of a covenant or agreement, within 10 business days following
receipt by Seller of written notice of such breach from Buyer, or
9.1.6 by either Buyer or Seller, if the other party goes into
liquidation, has an application or order made for its winding up or dissolution,
has a resolution passed or steps taken to pass a resolution for its winding up
or dissolution, becomes unable to pay its debts as and when they fall due, or
has a receiver, receiver and manager, administrator, liquidator, provisional
liquidator, official manager or administrator appointed to it or any of its
assets.
9.2 EFFECT OF TERMINATION. In the event of termination of this Agreement as
provided in Section 9.1 hereof, this Agreement shall immediately become void,
and there shall be no liability or obligation on the part of Buyer or Seller, or
their respective officers, directors, shareholders, or affiliates, except to the
extent the termination is a result of a material breach by a party to this
Agreement of any representation, warranty or covenant contained in this
Agreement, and except as otherwise set forth in this Agreement. If the Seller
terminates this Agreement pursuant to Section 9.1.4 or Section 9.1.6, the
▇▇▇▇▇▇▇ Money Deposit shall be forfeited to Seller. If this Agreement is
terminated for any other reason provided under Section 9.1, by Buyer or Seller,
the ▇▇▇▇▇▇▇ Money Deposit shall be immediately refunded to Buyer.
ARTICLE 10
DEFINITIONS
10.1 The following capitalized terms shall have the meanings ascribed to
them, as follows:
"AGREEMENT" shall have the meaning ascribed to it in the preamble.
"ASSETS" shall have the meaning ascribed to it in Section 1.1.
"ASSUMED CONTRACTS" means the contracts and agreements set forth on
Schedule 1.1, that make up part of the Assets, and which will be assigned by
Seller to Buyer, and assumed by Buyer.
"ASSUMED LIABILITIES" shall have the meaning ascribed to it in Section 1.4.
"ASSUMPTION AGREEMENT" shall have the meaning ascribed to it in Section
7.2.2.
"BUSINESS" means the business of providing escrow and title services by
Seller at the six locations listed on Schedule 1.2 hereto, currently operated by
Seller in Santa ▇▇▇▇▇, San Mateo, and Sacramento Counties in the State of
California.
"BUYER" shall mean New Century Title Company, a California corporation.
"CALIFORNIA APPROVAL" shall have the meaning ascribed to it in Section
5.1.5.
"CLOSING" shall mean the closing of the transactions contemplated by this
Agreement as set forth in Section 7.1 at which the purchase and sale of the
Assets will take place.
"CLOSING DATE" shall mean the date on which the Closing takes place.
"EFFECTIVE TIME" shall mean 12:01 a.m. local time on the first day
following the Closing.
"ENCUMBRANCE" shall mean, with regard to any asset, a mortgage, deed of
trust, pledge, lien, collateral agreement, security interest, claim, adverse
interest, right of first refusal, option, security arrangement, encumbrance,
title imperfection, encroachment or any other third-party interest of any nature
whatsoever in respect of such asset.
"EXCLUDED ASSETS" shall mean the assets of Seller other than the Assets, as
further described in Section 1.3.
"EXCLUDED LIABILITIES" shall have the meaning ascribed to it in Section
1.5.
"FINANCIAL STATEMENTS" shall have the meaning ascribed to it in Section
3.6.
"INTERIM PERIOD" shall have the meaning ascribed to it in Section 5.3.
"LEASE ASSIGNMENTS" shall mean the assignment to and assumption by Buyer of
all of Seller's right, title and interest in and to the leases for the Leased
Sites pursuant to an Assignment and Assumption of Lease.
"LEASED SITES" shall mean the property and improvements leased by Seller at
the five locations set forth on Schedule 1.2 where the Business is conducted.
"NOTICE" shall have the meaning ascribed to it in Section 11.7.
"PRE-CLOSING PERIOD" means the period subsequent to the execution of this
agreement and prior to the Closing Date.
"PURCHASE PRICE" shall have the meaning ascribed to it in Section 2.2.
"SELLER" shall mean BridgeSpan Title Company, a California corporation, and
wholly-owned subsidiary of BridgeSpan Inc.
ARTICLE 11
MISCELLANEOUS
11.1 FINDERS. Each of Buyer and Seller represents and warrants to each
other that it has no obligation to any third party which might give rise to a
claim for a brokerage commission, finder'S fee or similar payment to any person
in connection with the transactions contemplated by this Agreement. Buyer shall
indemnify, defend and hold Seller harmless, and Seller shall indemnify, defend
and hold Buyer harmless, from and against all claims by their respective finder,
broker or similar person with respect to the consummation of this Agreement and
all transactions contemplated hereby.
11.2 EXPENSES. All expenses incurred by Buyer or Seller (including fees of
counsel and accountants) in connection with the preparation of this Agreement
and the transactions contemplated hereby shall be borne by the party incurring
the same.
11.3 ARBITRATION. The parties shall attempt to resolve any dispute arising
from or relating to this Agreement by good faith discussions between their
executive officers. Any disputes between the parties arising from or relating to
this Agreement or any other dispute between the parties that can not be resolved
in accordance with the immediately preceding sentence shall be finally resolved
by arbitration conducted in Oakland, California, in accordance with the
Commercial Arbitration Rules of the American Arbitration Association ("AAA") by
a single arbitrator (the "ARBITRATOR"). The parties shall select the Arbitrator
from the Complex Case Panel list of arbitrators provided by the AAA case
coordinators (the "CASE COORDINATOR") assigned to handle the arbitration. In any
arbitration, parties shall be entitled to conduct any discovery that would be
permitted under the Federal Rules of Civil Procedure. The Arbitrator may
determine all issues of abitrability, may award interim, interlocutory,
provisional, partial or complete relief, including temporary restraining orders,
preliminary injunctions, order to compel discovery, orders of attachment, and
protective orders, and award money damages, specific performance, permanent
injunctions, or declarations of rights, and may grant any other relief in equity
or at law. The Arbitrator shall be bound by the terms and conditions of the
Agreement and shall have no power in rendering its decision, to alter or depart
from any express provision of this Agreement or to make a decision that is not
supported by substantial evidence or is not in accordance with the law governing
this Agreement. The decision of the Arbitrator shall be final, conclusive, and
binding on both parties, and shall be subject to confirmation and enforcement by
any court of competent jurisdiction. The prevailing party in any arbitration
shall be awarded all costs, charges, and expenses, including the fees charges,
and fees and expenses of the Arbitrator, the AAA , expert witnesses and
attorneys.
11.4 FURTHER ACTIONS. Seller shall, without further consideration, execute
and deliver any further or additional instruments and perform any acts which may
become reasonably necessary in order to effectuate and carry out the purposes of
this Agreement.
11.5 SEVERABILITY. In the event any term or provision of this Agreement is
declared to be invalid or illegal, for any reason, this Agreement shall remain
in full force and effect and the same shall be interpreted as though such
invalid and illegal provision were not a part hereof.
11.6 NOTICES. Any notice or communication to be given under the terms of
this Agreement ("NOTICE") shall be in writing and shall be personally delivered
or sent by mail or facsimile. Notice shall be effective (i) if personally
delivered, when delivered; (ii) if by facsimile, upon receipt of confirmation of
successful transmission; and (iii) if mailed, at midnight on the fourth business
day after deposit in the mail with airmail postage prepaid. Notices shall be
addressed as follows:
If to Buyer: ▇▇▇▇▇▇ ▇. Head, Chief Executive Officer
Capital Title Group, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With copy to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Squire, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Seller: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Financial Officer
BridgeSpan Title Company
c/o BridgeSpan, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Venture Law Group
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address as a party may from time to time designate by Notice
hereunder.
11.7 WAIVER. At any time prior to the Closing Date, the parties hereto may
to the extent legally allowed, (i) extend the time for the performance of any of
the obligations or other acts of the other parties hereto, (ii) waive any
inaccuracies in the representations and warranties contained herein or in any
document delivered pursuant hereto and (iii) waive compliance with any of the
agreements or conditions contained herein. Any agreement of a party hereto to
any such extension or waiver shall be valid only if set forth in a written
instrument signed by or on behalf of such party. No provision of this Agreement
may be modified or amended except by a writing executed by the party sought to
be charged with such modification or amendment. Any waiver by any party of a
breach of any provision of this Agreement shall not operate as or be construed
to be a waiver of any other breach of any other provision of this Agreement. The
failure of a party to insist upon strict adherence to any term of this Agreement
on one or more occasions shall not be considered a waiver or deprive that party
of the right thereafter to insist upon strict adherence to that term or any
other term of this Agreement.
11.8 NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement shall confer
any rights upon any person or entity other than the parties hereto and their
respective heirs, successors and permitted assigns.
11.9 ENTIRE AGREEMENT. This Agreement, together with any other and further
documents executed and delivered at the Closing or otherwise contemplated
hereby, constitutes and embodies the full and complete understanding and
agreement of the parties hereto and supersedes all prior understandings or
agreements whether oral or in writing.
11.10 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with he laws of the State of California (without reference to the
provisions thereof relating to conflicts of laws).
11.11 HEADINGS; INTERPRETATION. The Section headings and Article headings
used herein are for convenience and reference only and are not intended to
define, limit or describe the scope or intent of any provision of this
Agreement. When used in this Agreement, the term "including" shall mean without
limitation by reason of enumeration. The definition of a term in the plural form
shall include the singular form, and the singular the plural, as the context
requires. Any masculine personal pronoun shall be considered to mean the
corresponding feminine personal pronoun, as the context requires.
11.12 SUCCESSORS. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective heirs, personal
representatives, successors or assigns, as the case may be. Buyer may assign any
of its respective rights or obligations hereunder to a wholly owned subsidiary
of Buyer, provided that as a condition to any such assignment, Buyer shall not
be released from its liabilities and obligations arising under this Agreement.
Seller may assign any of its rights or obligations under this Agreement to
BridgeSpan, Inc., or any wholly-owned subsidiary thereof, provided that as a
condition to any such assignment, Seller shall not be released form its
liabilities and obligations arising under this Agreement.
11.13 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed a duplicate original.
11.14 SATISFACTION OF CONDITIONS PRECEDENT. Each party shall cooperate with
the other parties hereto and use its commercially reasonable efforts to satisfy
each of the conditions precedent to the accomplishment of the transactions
contemplated by this Agreement.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this Asset Purchase
Agreement to be executed as of the 8th day of September, 2001.
NEW CENTURY TITLE COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------------
Its: V. P., Chief Financial Officer and Treasurer
-----------------------------------------------
"BUYER"
BRIDGESPAN TITLE COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------------
Its: Chief Financial Officer
-----------------------------------------------
"SELLER"
BRIDGESPAN, INC.,
Solely to acknowledge and agree to the terms of
Section 8.2 herein.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------------
Its: Chief Financial Officer
-----------------------------------------------
CAPITAL TITLE GROUP, INC.,
By its signature, Capital Title Group, Inc. (i)
acknowledges and agrees to the terms of Sections
5.5 and 8.4 herein, and (ii) agrees to
unconditionally guarantee, and hereby does
unconditionally guarantee the performance of Buyer
under this Agreement, including without
limitation, the payment of the Purchase Price by
Buyer.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------------
Its: V. P., Chief Financial Officer and Treasurer
-----------------------------------------------