MEMBERSHIP INTEREST PURCHASE AGREEMENT by and among WWG, LLC, TODD GRAHAM, KEVIN BERG, VINCENT PARINELLO, DANIEL K. GREGORY, STEPHEN GROTH and SEAN M. O'TOOLE
Exhibit 10.2.1
by
and among
MDC
ACQUISITION INC.,
WWG, LLC,
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and
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Dated as
of March 1, 2010
MEMBERSHIP INTEREST PURCHASE
AGREEMENT (this "Agreement") dated as of March
1, 2010, by and among MDC
ACQUISITION INC., a Delaware corporation (the "Purchaser"), WWG, LLC, a Florida limited
liability company ("WWG"), ▇▇▇▇ ▇▇▇▇▇▇ ("▇▇▇▇▇▇"), ▇▇▇▇▇ ▇▇▇▇ ("▇▇▇▇"), ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇▇"), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇"), ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇"), and ▇▇▇▇ ▇. ▇'▇▇▇▇▇ ("▇'▇▇▇▇▇"; and together with
Graham, Berg, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and ▇▇▇▇▇, collectively, the "Principals", and individually
a "Principal") and
solely for purposes of Sections 7.6.6 and
8.19, MDC
Partners Inc., a corporation existing under the laws of Canada ("MDC").
WITNESSETH:
WHEREAS, WWG was (x) the sole
shareholder of TEAM Enterprises Inc. a Massachusetts corporation ("TEAM") and (y) the sole member
of (A) OuterActive, LLC, a Delaware limited liability company ("O-A") and (B) Pulse Marketing,
LLC, a Delaware limited liability company ("Pulse");
WHEREAS, WWG formed NEW TEAM LLC, a Delaware
limited liability company ("NT"), as its sole
member;
WHEREAS, WWG caused TEAM to
contribute substantially all of its assets, subject to certain disclosed
liabilities, and its ongoing business, to NT pursuant to a Contribution
Agreement (General Assignment, ▇▇▇▇ of Sale and Assumption Agreement) (the
"NT Conveyance
Document");
WHEREAS, WWG and WWG2, LLC, a
Florida limited liability company ("WWG2") formed (the "Formation") TEAM HOLDINGS LLC, a Delaware
limited liability company (the "Company"), with WWG owning 99%
of the issued and outstanding membership interests in the Company and WWG2
owning 1% of the issued and outstanding membership interests in the Company (the
membership interests of the Company collectively referred to as the "Membership
Interests");
WHEREAS, simultaneously with
the Formation, WWG and WWG2 executed and delivered a Limited Liability Company
Agreement of the Company (the "Original Operating
Agreement"), pursuant to which WWG transferred 100% of its equity
ownership in (x) NT, (y) O-A and (z) Pulse to the Company, such that following
such transfer, the Company was the sole member of each of NT, O-A and Pulse (NT,
O-A and Pulse hereinafter referred to collectively as the "Subsidiaries", and
individually as a "Subsidiary");
WHEREAS, WWG desires to sell,
and the Purchaser desires to purchase, 60% of the Membership Interests (the
"Purchased Interests"),
pursuant to the provisions of this Agreement such that after giving effect to
such purchase, the Membership Interests will be owned as follows: the Purchaser
– 60%; WWG – 39%; and WWG2 – 1%;
WHEREAS, simultaneously with
the execution and delivery of this Agreement, the Purchaser, WWG, WWG2 and the
Company are executing and delivering an Amended and Restated Limited Liability
Company Agreement of the Company (the "Operating Agreement") attached
hereto as Exhibit A
(pursuant to which the Purchased Interests shall be redesignated as
"Class A Units" and the Membership Interests owned by WWG and WWG2 shall be
redesignated as "Class B Units" and/or "Class C Units");
NOW, THEREFORE, in
consideration of the mutual covenants and agreements set forth in this
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties do hereby agree as
follows:
ARTICLE
I
SALE OF THE PURCHASED
INTERESTS
Section 1.1
Sale of
the Purchased Interests. Subject to the terms and
conditions herein stated, WWG agrees to sell, assign, transfer and deliver to
the Purchaser on the Closing Date (as defined in Section 2.2), and the
Purchaser agrees to purchase from WWG on the Closing Date, the Purchased
Interests.
ARTICLE
II
PURCHASE PRICE AND
CLOSING
Section
2.1 Purchase
Price; Working Capital Adjustment.
2.1.1 Purchase
Price. In full consideration for the purchase by the Purchaser
of the Purchased Interests, the purchase price (the "Purchase Price"), shall be
calculated and paid by the Purchaser to WWG, as set forth below (capitalized
terms used in this Article II and not otherwise defined, shall have the meaning
ascribed to such terms in Sections 2.1.2 or
2.1.3
below):
(a)
Closing
Payment. At the Closing, the Purchaser shall pay to WWG an
amount equal to $11,000,000 ("CP").
(b) Working Capital
Payment. If the Closing Date Working Capital, as finally
determined pursuant to the procedures set forth in Section 2.1.4, is
less than the Target Working Capital (such difference being referred to herein
as the "Working Capital
Shortfall"), then within five business days after the Special
Determination (as defined in Section 2.1.4(i)
below) and any adjustments thereto shall have become binding on the parties
pursuant to the procedures set forth in Section 2.1.4,
(A) WWG shall pay to the Purchaser 60% of the Working Capital Shortfall and
(B) immediately thereafter, WWG, WWG2 and the Purchaser shall contribute to the
capital of the Company as a contribution to capital, 39% by WWG, 1% by WWG2 and
60% by the Purchaser, respectively, of the Working Capital
Shortfall. If WWG fails to make the payment referred to in (A) above
or if WWG or WWG2 fails to make the contribution referred to in (B) above, in
addition to any other legal remedies available to it, the Purchaser shall have
the right to offset such amount against any future Purchase Price payments to
WWG. If the Closing Date Working Capital, as finally determined
pursuant to the procedures set forth in Section 2.1.4, is greater than Target
Working Capital, within five days after the Special Determination and any
adjustments thereto shall have become binding on the parties pursuant to the
procedures set forth in Section 2.1.4, the
Company shall make a distribution to WWG in the amount of the difference between
Target Working Capital and the Closing Date Working Capital. Any amount paid
pursuant to this Section 2.1.1(b)
shall be referred to as the "Working Capital
Payment."
2
(c) First Interim
Payment. Provided that WWG shall not have validly made a FIP Prepayment
Election (as defined in Section 2.1.1(h)
below), within five business days after the Annual Determination for calendar
year 2010 and any adjustments thereto shall have become binding on the parties
as provided in Section
2.1.4 below, the Purchaser shall pay to WWG the First Interim Payment
("FIP"), calculated as
follows:
FIP shall
equal the lesser of:
(A) $5,000,000
and
(B) {60% x
[5.0 x (2009 PBT +
2010 PBT)]} – {CP}
2
(d) First Additional
Payment. Within five business days after the Annual Determination for
calendar year 2010 and any adjustments thereto shall have become binding on the
parties as provided in Section 2.1.4 below,
the Purchaser shall pay to WWG the First Additional Payment ("FAP"), calculated as
follows:
FAP = 90%
x (2010 Adjusted Profits x 40%)
; provided, however, in the event
that 2010 Adjusted Profits is less than the result of (x) $1,833,333 divided by (y) 60%, then FAP
shall equal (A) the excess, if any, of (i) 2010 Adjusted Profits over (ii) $1,833,333,
multiplied by (B) 90%.
(e) Final Interim
Payment. Provided that WWG shall not have validly made a FIIP Prepayment
Election (as defined in Section 2.1.1(h)
below), within five business days after the Annual Determination for calendar
year 2011 and any adjustments thereto shall have become binding on the parties
as provided in Section
2.1.4 below, the Purchaser shall, subject to Section 2.1.1(i)
below, pay to WWG the Final Interim Payment ("FIIP"), calculated as
follows:
3
(A) In the
event both:
(x) (2009 PBT + 2010 PBT)
is equal to or greater than $6,333,333
2
and
(y) 2011 PBT is equal to or greater
than {90% x (2009 PBT
+ 2010 PBT)},
2
then:
FIIP = {$19,000,000} – {CP +
FIP}
or
(B) In the
event
(x) (2009 PBT + 2010 PBT)
is less than $6,333,333
2
or
(y) 2011 PBT is less than {90% x (2009 PBT + 2010
PBT)},
2
then:
FIIP = {60% x [4.5 x (2009 PBT + 2010 PBT + 2011
PBT)]} – {CP + FIP}
3
(f) Second Additional
Payment. Within five business days after the Annual Determination for
calendar year 2011 and any adjustments thereto shall have become binding on the
parties as provided in Section 2.1.4 below,
the Purchaser shall pay to WWG the Second Additional Payment ("SAP"), calculated as
follows:
SAP = 90%
x (2011 Adjusted Profits x 40%)
; provided, however, in the event
that 2011 Adjusted Profits is less than the result of (x) the sum of (i)
$2,200,000 plus (ii) (FIP times 20%), divided by (y) 60%, then SAP
shall equal (A) the excess, if any, of (i) 2011 Adjusted Profits over (ii) the sum of
(X) $2,200,000 plus (Y) (FIP times 20%), multiplied by (B) 90%;
; provided further, however, in the event
that 2010 Adjusted Profits were less than $1,833,333, then for purposes of the
calculations of SAP above, 2011 Adjusted Profits shall be reduced by the amount
of such shortfall.
4
(g) Final Additional
Payment. Within five business days after the Annual
Determination for calendar year 2012 and any adjustments thereto shall have
become binding on the parties as provided in Section 2.1.4 below,
the Purchaser shall pay to WWG the Final Additional Payment ("FIAP"), calculated as
follows:
FIAP =
90% x (2012 Adjusted Profits x 40%)
;
provided, however, in the event that 2012 Adjusted Profits is less than the
result of (x) the sum of (i) $2,200,000 plus (ii) (FIP times 20%), plus (iii)
(FIIP times 20%), divided by (y) 60%, then FIAP
shall equal (A) the excess, if any, of (i) 2012 Adjusted Profits over (ii) the sum of
(X) $2,200,000, plus (Y) (FIP times 20%) plus (Z) (FIIP times 20%), multiplied
by (B) 90%;
; provided further, however, in the event
that the sum of 2010 Adjusted Profits and 2011 Adjusted Profits were less than
the sum of (I) $4,033,333 plus (II) (FIP times 20%), then for purposes of the
calculations of FIAP above, 2012 Adjusted Profits shall be reduced by the amount
of such shortfall.
(h) Prepayment
Elections. In the event that changes in United States
long-term capital gains tax rates are established which result in either an (x)
increase in 2011 long-term capital gains rates from 2010 rates (a "2011 Rate Increase") or (y) an
increase in 2012 long-term capital gains rates from 2010 rates or 2011 rates (a
"2012 Rate Increase"),
WWG shall have the option to elect to receive a prepayment of the FIP (a "FIP Prepayment Election"), in
the case of a 2011 Rate Increase, or to receive a prepayment of the FIIP (a
"FIIP Prepayment
Election"; the FIP Prepayment Election and the FIIP Prepayment Election
are sometimes referred to herein as a "Prepayment
Election"), in the case of a 2012 Rate Increase, as
follows:
(A) To
exercise a Prepayment Election, (i) WWG shall deliver notice to the Purchaser on
or prior to December 10, 2010, in the case of a FIP Prepayment Election, or on
or prior to December 10, 2011, in the case of a FIIP Prepayment Election and
(ii) WWG shall have timely and fully delivered the 2010 Financial Information or
the 2011 Financial Information, as the case may be.
(B) If
a FIP Prepayment Election is validly exercised, then on or prior to December 31,
2010, the Purchaser shall pay to WWG an amount (the "FIP Prepayment") equal to the
result of (x) the Estimated FIP divided by (y) the sum of (i) one plus (ii) the
MDC Cost of Funds Rate (as defined in Section 2.1.3(vii)
below) divided by 4. Within five business days after the
Annual Determination for 2010 and any adjustments thereto shall have become
binding on the parties pursuant to the procedures set forth in Section 2.1.4 below,
(i) if FIP (as calculated pursuant to Section 2.1.1(c)
above using actual 2010 PBT) is greater than Estimated FIP, then the Purchaser
shall pay WWG such excess, or (ii) if Estimated FIP is greater than FIP (as
calculated pursuant to Section 2.1.1(c)
above using actual 2010 PBT), then WWG shall pay the Purchaser such
excess. If WWG fails to pay any amount required to be paid by it to
the Purchaser, in addition to any other legal remedies available to it, the
Purchaser shall have the right to offset such amount against any future Purchase
Price payments to WWG.
5
(C) If
a FIIP Prepayment Election is validly exercised, then on or prior to December
31, 2011, the Purchaser shall pay to WWG an amount (the "FIIP Prepayment") equal to the
result of (x) the Estimated FIIP divided by (y) the sum of (i) one plus (ii) the
MDC Cost of Funds Rate divided by 4. Within five business days after
the Annual Determination for 2011 and any adjustments thereto shall have become
binding on the parties pursuant to the procedures set forth in Section 2.1.4 below,
(i) if FIIP (as calculated pursuant to Section 2.1.1(e)
above using actual 2011 PBT) is greater than Estimated FIIP, then the Purchaser
shall, subject to Section 2.1.1(i), pay
WWG such excess, or (ii) if Estimated FIIP is greater than FIIP (as calculated
pursuant to Section
2.1.1(e) above using actual 2011 PBT), then WWG shall pay the Purchaser
such excess. If WWG fails to pay any amount required to be paid by it
to the Purchaser, in addition to any other legal remedies available to it, the
Purchaser shall have the right to offset such amount against any future Purchase
Price payments to WWG.
(D) In
the event that a Prepayment Election is made, (i) FIP as ultimately determined
pursuant to clause (B) above shall be the value for "FIP" and (ii) FIIP as
ultimately determined pursuant to clause (C) shall be the value for "FIIP" for
purposes of making other calculations of Purchase Price that rely on FIP or
FIIP, as the case may be.
(i) Purchase Price Cap.
Notwithstanding the foregoing, in no event shall the sum of the CP, FIP
(inclusive of any Estimated FIP) and FIIP (inclusive of any Estimated FIIP) be
greater than $19,000,000.
(j) No Negative Payments.
In the event that the calculation of FIP, FAP, FIIP, SAP or FIAP, as the case
may be, results in an amount which is less than zero, such Purchase Price
component shall be deemed to be zero and accordingly, the amount of FIP, FAP,
FIIP, SAP or FIAP, as the case may be, included in any Purchase Price
calculation, shall be zero
(k) Payment of the Purchase
Price. Payment of each
component of the Purchase Price and any payment that is required to be made
under Section
2.1 above shall be made in United States Dollars by the Purchaser by
direct wire transfer to the account of WWG, as set forth on Schedule 2.1.1 (or to such
other account as WWG may notify the Purchaser in writing). Each of
the FIP, FAP, FIIP, SAP or FIAP (including amounts payable pursuant to the
Prepayment Election provisions of Section 2.1.1(h)
above), as the case may be, shall be deemed to include imputed interest, to the
extent required by the Internal Revenue Code of 1986, as amended (the "Code").
2.1.2 PBT. The
term "PBT" for any
relevant period shall mean the consolidated net income (loss) of the Company and
its subsidiaries, if any, before provision for all federal, state and local
income and franchise taxes for such period, determined in accordance with United
States generally accepted accounting principles consistently applied ("GAAP"); provided, however, for calendar
year 2010, 2010 PBT shall mean the sum of (x) the consolidated PBT of WWG, TEAM,
O-A and Pulse from January 1, 2010 through and including the Closing Date (the
"Pre-Closing Period")
and (y) the consolidated PBT of the Company and its subsidiaries, if any, after
the Closing Date through and including December 31, 2010 (the "Post-Closing Period"); and
provided that in making such determinations:
6
(i)
neither the proceeds from nor
any dividends or refunds with respect to, nor any increases in the cash
surrender value of, any life insurance policy under which the Company, or any
subsidiary thereof (or TEAM, O-A or Pulse for the Pre-Closing Period), is the
named beneficiary or otherwise entitled to recovery, shall be included as
income, and the premium expense related to any such life insurance policy shall
not be treated as an expense;
(ii)
for any service rendered or provided to the
Company or any Subsidiary thereof by MDC or any of its affiliates (as defined in
Section 9.5)
(it being understood that except as provided below, no such service shall be
rendered or provided without the consent of the Representative (as defined in
Section 8.18)
while he is still in the full-time employ of the Company or any Subsidiary, and
in the event the Representative is not so employed, one of the other Principals,
provided that such Principal is then in the full-time employ of the Company or
any Subsidiary, or in the event no Principals are so employed, a then senior
member of management of the Company or a Subsidiary (in any such case, each such
individual being referred to as the "Authorized Officer")), the
Company or its subsidiary, as the case may be, shall be charged at the rates
agreed to by MDC or one of its affiliates, as the case may be, and the
Authorized Officer; and all charges permitted by this clause (ii) shall be
treated as an expense;
(iii) any
Losses (as defined in Section 7.2) of a
Purchaser Indemnified Party (as defined in Section 7.2) which
give rise to an indemnity payment pursuant to the indemnification provisions of
Section 7.2 and
which are fully assumed by WWG and the Principals or as to which such Purchaser
Indemnified Party has been reimbursed (by offset or otherwise), shall not be
treated as an expense, and there shall be excluded from income any amount
received by such Purchaser Indemnified Party pursuant thereto;
(iv) any
indemnity payments made by a Purchaser Indemnified Party to any Company
Indemnified Party (as defined in Section 7.3) shall
not be treated as an expense;
(v)
there shall be no charge against income for the
payment or accrual of any component of the Purchase Price;
(vi) the
fees and disbursements of WWG's attorneys, accountants and financial advisors
incurred prior to or after the Closing in connection with the formation and
organization of the Company and the Subsidiaries and the negotiation,
preparation and execution of this Agreement and the other documents to be
delivered at the Closing hereunder that have either (x) been expensed and paid
prior to the Closing or (y) accrued for on the Closing Balance Sheet (as defined
in Section
2.1.4(i) hereof), shall not be treated as an expense;
(vii) the
income (loss) of any subsidiary of the Company whose results of operations are
required to be consolidated with that of the Company under GAAP shall be
included only in proportion to the Company's direct or indirect ownership in
such subsidiary;
7
(viii) any
extraordinary or non-recurring gains or losses and any gains or losses from the
sale of any capital assets, and any gains and losses recognized by the Company
or any of its subsidiaries, if any, in connection with the sale or other
disposition of any investments by the Company or any of its subsidiaries, if
any, shall be excluded from income;
(ix) the
fees and expenses of (1) the Accountants (as defined in Section 2.1.4(i)
hereof) in preparing the Special Determination or any Annual Determination or
(2) any audit performed in connection with the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as
amended or modified from time to time, or any successor statute, and any rules
and regulations promulgated thereunder, in excess of $50,000 in any calendar
year, shall not be treated as an expense;
(x)
in the event that
the Company or any of its subsidiaries acquires any other Person pursuant to a
purchase of assets or stock, merger or similar transaction (an "Acquired Business") on or
after the date hereof, the calculation of PBT shall exclude any net profit
(loss) derived by the Company and its subsidiaries from the Acquired
Business;
(xi) any
write-off or amortization or depreciation of goodwill arising out of the
purchase of the Purchased Interests pursuant to this Agreement shall not be
treated as an expense;
(xii) there
shall be no charge for interest incurred on any loan to fund any payment of the
Purchase Price;
(xiii) the
fees and expenses of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in preparing the audit for calendar year
2009 and any prior periods to the extent incurred in calendar year 2010, up to
$85,000 shall not be treated as an expense for purposes of 2010
PBT;
(xiv) any
distribution by WWG of any Purchase Price proceeds to its members shall not be
treated as an expense;
(xv) any
salary expenses payable to any individuals hired to replace any of the
Principals to the extent such Principals are also receiving severance payments
at the time such salary expenses are incurred shall not be treated as an
expense, unless the termination of such Principal's employment was recommended
and initiated by the Representative (as defined in Section 8.18
below);
(xvi) PBT
shall reflect appropriate fair market compensation levels, including salary and
incentive bonuses; and
(xvii) solely
with respect to the calculation of 2010 PBT, an amount equal to $459,129 shall
not be treated as an expense.
2.1.3 Other
Definitions.
(i)
"Target
Working Capital" means an amount equal to $1,000,000.
8
(ii)
"Closing Date
Working Capital" means the current assets of the Company and the
Subsidiaries less the current liabilities of the Company and the Subsidiaries as
of the opening of business on March 1, 2010 in accordance with
GAAP.
(iii) "2010 Financial Information"
means the following financial information prepared by WWG with respect to the
Company and its subsidiaries for calendar year 2010, and delivered to the
Purchaser on or prior to December 10, 2010: (x) a consolidated balance sheet of
the Company and its subsidiaries as at November 30, 2010 and the related
statement of income for the month of November and the eleven months then ended
and (y) a good faith reasonable forecasted statement of income for the 2010
calendar year, including the Company's estimate of (A) 2010 PBT ("WWG’s Estimated 2010 PBT") and (B)
Estimated FIP, each such estimate to be based upon such financial statements
included within the 2010 Financial Information.
(iv) "2011 Financial Information"
means the following financial information prepared by WWG with respect to the
Company and its subsidiaries for calendar year 2011, and delivered to the
Purchaser on or prior to December 10, 2011: (x) a consolidated balance sheet of
the Company and its subsidiaries as at November 30, 2011 and the related
statement of income for the month of November and the eleven months then ended
and (y) a good faith reasonable forecasted statement of income for the 2011
calendar year, including the Company's estimate of (A) 2011 PBT ("WWG’s Estimated 2011 PBT") and (B)
Estimated FIIP, each such estimate to be based upon such financial statements
included within the 2011 Financial Information.
(v)
"Estimated FIP" means an amount
equal to (x) the amount of FIP as calculated pursuant to Section 2.1.1(c) that
would have been payable if 2010 PBT were equal to the Estimated 2010 PBT times (y) 85%.
(vi)
"Estimated FIIP" means an
amount equal to (x) the amount of FIIP as calculated pursuant to Section 2.1.1(e) that
would have been payable if 2011 PBT were equal to the Estimated 2011 PBT times (y) 85%.
(vii)
"MDC
Cost of Funds Rate" means 12%.
(viii) "Adjusted Profits" means, for any year,
the result of (i) GAAP PBT (as defined and calculated pursuant to the Operating
Agreement) for such year, minus (ii) all
Acquisition Company PBT (as defined and calculated pursuant to the Operating
Agreement) for such year plus (iii) any
Acquisition Free Cash Flow (as defined and calculated pursuant to the Operating
Agreement) for such year.
(ix) "2009 PBT" shall mean, for
calendar year 2009, the sum of (x) the consolidated net income (loss) of the
Company and its subsidiaries (if any) before provision for all federal and state
income taxes for such period, determined in accordance with GAAP and as reported
in the Company's 2009 audited consolidated financial statements, plus (y)
$875,189.
9
2.1.4 Accounting
Procedures.
(i)
The Purchaser shall, or shall cause BDO ▇▇▇▇▇▇▇ LLP, or another
independent accounting firm chosen by the Purchaser (the "Accountants"), as soon as
practicable after the Closing, to prepare in accordance with GAAP and deliver to
the Representative, a report containing a consolidated balance sheet of the
Company and the Subsidiaries as of the close of business on the Closing Date and
taking into account the transactions effected by the Formation and the NT
Conveyance Document (the "Closing Balance Sheet"),
together with a statement of the Accountants based upon such report which sets
forth the Closing Date Working Capital (the "Special
Determination"). If the Purchaser engages the Accountants, the
Purchaser shall have the option, in its sole discretion (and at its sole
expense) to instruct the Accountants to audit or perform agreed upon procedures
on the Closing Balance Sheet and to determine the scope of such audit or
procedures. If the Representative does not agree that the Special
Determination correctly states the Closing Date Working Capital, the
Representative shall promptly (but not later than 30 days after the delivery to
him of the Special Determination) give written notice to the Purchaser of any
exceptions thereto (in reasonable detail describing the nature of the
disagreement asserted). If the Representative and the Purchaser
reconcile their differences, the Closing Date Working Capital calculation shall
be adjusted accordingly and shall thereupon become binding, final and conclusive
upon all of the parties hereto and enforceable in a court of law. If
the dispute relates to an accounting issue and if the Representative and the
Purchaser are unable to reconcile their differences in writing within 20 days
after written notice of exceptions is delivered to the Purchaser (the "Reconciliation Period"), the
accounting items in dispute shall be submitted to a mutually acceptable
accounting firm (other than the Accountants) selected from any of the four
largest accounting firms in the United States in terms of gross revenues (the
"Independent Auditors")
for final determination. The Closing Date Working Capital calculation
shall be deemed adjusted in accordance with the determination of the Independent
Auditors and shall become binding, final and conclusive upon all of the parties
hereto and enforceable in a court of law. The Independent Auditors
shall consider only the accounting items in dispute and shall be instructed to
act within 20 days (or such longer period as the Representative and the
Purchaser may agree) to resolve all accounting items in dispute. If
the dispute involves a non-accounting issue and such dispute cannot be
reconciled within the Reconciliation Period, the dispute shall be settled by a
court of competent jurisdiction. If the Representative does not give
written notice of any exception within 30 days after the delivery to it of the
Special Determination or if the Representative gives written notification of his
acceptance of the Closing Date Working Capital prior to the end of such 30 day
period, the Closing Date Working Capital set forth in the Special Determination
shall thereupon become binding, final and conclusive upon all the parties hereto
and enforceable in a court of law.
10
(ii)
As soon as reasonably practicable after receiving WWG's Estimated
2010 PBT or WWG’s Estimated 2011 PBT, as the case may be, the Purchaser shall
use its reasonable best efforts to review such calculation. If the
Purchaser does not agree with WWG's Estimated 2010 PBT or WWG’s Estimated 2011
PBT, as the case may be, the Purchaser shall promptly give written notice to the
Representative of any exceptions thereto and provide its calculation of
Estimated 2010 PBT or Estimated 2011 PBT, as the case may be (the "Purchaser's Estimated 2010
PBT" or the "Purchaser's
Estimated 2011 PBT"). If the Representative and the Purchaser
reconcile their differences prior to (x) December 24, 2010 with respect to
Estimated 2010 PBT, such agreed upon calculation shall be deemed to be Estimated
2010 PBT for purposes of calculating Estimated FIP or (y) December 24, 2011 with
respect to Estimated 2011 PBT, such agreed upon calculation shall be deemed to
be Estimated 2011 PBT for purposes of calculating Estimated FIIP. If
the Purchaser and the Representative are unable to reconcile their differences
prior to (x) December 24, 2010 with respect to Estimated 2010 PBT, then there
shall be deemed to be no agreement between the Purchaser and the Representative
with respect to such calculation and the Purchaser's Estimated 2010 PBT shall be
deemed to be Estimated 2010 PBT for purposes of calculating Estimated FIP or (y)
December 24, 2011 with respect to Estimated 2011 PBT, then there shall be deemed
to be no agreement between the Purchaser and the Representative with respect to
such calculation and the Purchaser's Estimated 2011 PBT shall be deemed to be
Estimated 2011 PBT for purposes of calculating Estimated
FIIP. If the Purchaser does not give written notice of any
exception to WWG’s Estimated 2010 PBT prior to December 24, 2010 or if the
Purchaser gives written notification of its acceptance of WWG’s Estimated 2010
PBT prior to December 24, 2010, WWG’s Estimated 2010 PBT shall be deemed to be
Estimated 2010 PBT for purposes of Estimated FIP. If the Purchaser does not give
written notice of any exception to WWG’s Estimated 2011 PBT prior to December
24, 2011 or if the Purchaser gives written notification of its acceptance of
WWG’s Estimated 2011 PBT prior to December 24, 2011, WWG’s Estimated 2010 PBT
shall be deemed to be Estimated 2011 PBT for purposes of Estimated
FIIP.
(iii) The
Purchaser shall prepare, or cause the Accountants to prepare, as soon as
practicable after the end of the calendar years 2010, 2011 and 2012, to prepare
in accordance with GAAP, a report containing consolidated balance sheets of the
Company and its subsidiaries, if any, as of the close of business on December
31, 2010, December 31, 2011 and December 31, 2012, and related consolidated
statements of income of the Company and its subsidiaries, if any, for each
calendar year then ended, in each case together with a statement based upon such
report which (x) states that it was prepared in accordance with this Agreement
and (y) sets forth the calculation of PBT and Profits for calendar years 2010,
2011 and 2012, and (z) sets forth all adjustments required to be made to such
audited financial statements in order to make the calculations required under
this Section
2.1.4(iii) (the "Annual
Determination"). For avoidance of doubt, the Annual
Determination for calendar year 2010 shall include PBT of TEAM, O-A and Pulse
for the Pre-Closing Period. If the Purchaser engages the Accountants,
the Purchaser shall have the option, in its sole discretion, to instruct the
Accountants to audit the annual financial statements for any period and to
determine the scope of such audit. The Purchaser shall deliver, or
shall instruct the Accountants to deliver, a copy of each such Annual
Determination to the Representative not later than 150 days after the end of the
period to which such Annual Determination relates; provided, however, any delay
of the Accountants to meet such timetable shall impose no liability on the part
of the Purchaser.
11
(iv)
If the Representative does not agree that the Annual Determination correctly
states the calculation of PBT and/or Profits for calendar years 2010, 2011 and
2012, as applicable, the Representative shall promptly (but not later than 30
days after the delivery of such Annual Determination to the Representative) give
written notice to the Purchaser of any exceptions thereto (in reasonable detail
describing the nature of the disagreement asserted). If the
Representative and the Purchaser reconcile their differences, the Annual
Determination shall be adjusted accordingly and shall thereupon become binding,
final and conclusive upon all of the parties hereto and enforceable in a court
of law. If the dispute relates to an accounting issue and if the
Representative and the Purchaser are unable to reconcile their differences in
writing within the Reconciliation Period, the accounting items in dispute shall
be submitted to the Independent Auditors for final determination, and the Annual
Determination shall be deemed adjusted in accordance with the determination of
the Independent Auditors and shall become binding, final and conclusive upon all
of the parties hereto and enforceable in a court of law. The
Independent Auditors shall consider only the accounting items in dispute and
shall be instructed to act within 20 days (or such longer period as the
Representative and the Purchaser may agree) to resolve all accounting items in
dispute. If the dispute involves a non-accounting issue and such
dispute cannot be reconciled within the Reconciliation Period, the dispute shall
be settled by a court of competent jurisdiction. If the Representative does not
give written notice of any exception within 30 days after the delivery of the
Annual Determination or if the Representative gives written notification of his
acceptance of the Annual Determination prior to the end of such 30 day period,
such Annual Determination shall thereupon become binding, final and conclusive
upon all the parties hereto and enforceable in a court of law.
(v)
In the event the Independent Auditors are for any reason
unable or unwilling to perform the services required of it under this Section 2.1.4, then
the Purchaser and the Representative agree to select another accounting firm
from among the remaining four largest accounting firms in the United States
(except the Accountants) in terms of gross revenues to perform the services to
be performed under this Section 2.1.4 by the
Independent Auditors. If the Purchaser and the Representative fail to
select the Independent Auditors as required by Section 2.1.4(i)
above within seven days after the expiration of the Reconciliation Period or
fail to select another accounting firm within seven days after it is determined
that the Independent Auditors will not perform the services required, either the
Purchaser or the Representative may request the Judicial Arbitration and
Mediation Services, Inc. ("JAMS") located in New York,
New York, or if JAMS is not so located, in the jurisdiction of closest proximity
to New York, New York to appoint an independent firm of certified public
accountants to perform the services required under this Section 2.1.4 by the
Independent Auditors. The fees of JAMS shall be shared equally by the
Purchaser and WWG. For purposes of this Section 2.1.4 the
term "Independent Auditors" shall include such other accounting firm chosen in
accordance with this Section
2.1.4(v).
(vi) The
Independent Auditors shall determine the party (i.e., the Purchaser or the
Representative) whose asserted position as to the calculation of the Closing
Date Working Capital, Profits or PBT, as the case may be, is furthest from the
determination of the Closing Date Working Capital, Profits or PBT, as
the case may be, by the Independent Auditors, which non-prevailing party (WWG or
the Purchaser) shall pay the fees and expenses of the Independent Auditors and
shall reimburse the prevailing party for the portion of the fees of JAMS
previously paid by it.
2.1.5 Examination of Books and
Records. The books and records of WWG, TEAM, O-A and Pulse
(with respect to periods prior to the Closing Date) and the Company and its
subsidiaries (if any) shall be made available during normal business hours upon
reasonable advance notice at the principal office of the Company, to the parties
hereto, the Accountants and the Independent Auditors to the extent required to
determine the calculations required under Section
2.1. The Principals, on the one hand, and the Purchaser, on
the other hand, shall make available to the other party and their
representatives (including auditors) any back-up materials generated by them to
support a position that is contrary to the position taken by the other
party.
12
Section
2.2 Closing. The
closing of the transactions contemplated by this Agreement (the "Closing") shall take place
simultaneously with the execution and delivery of this Agreement on the date
hereof, at the offices of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ or by the exchange of documents and instruments by mail, courier,
telecopy and wire transfer to the extent mutually acceptable to the parties
hereto (such date is herein referred to as the "Closing Date").
Section
2.3 Third
Party Consents. Anything in this Agreement to the
contrary notwithstanding, in the event an assignment or purported assignment to
the Company or any Subsidiary of any of the agreements, contracts or commitments
of TEAM, O-A or Pulse pursuant to the Formation and/or the NT Conveyance
Document, as applicable, or any claim, right or benefit arising thereunder or
resulting therefrom, without the consent of other parties thereto, would
constitute a breach thereof or would not result in the Company or any Subsidiary
receiving all of the rights of TEAM, O-A or Pulse, as the case may be,
thereunder, such agreement, contract or commitment shall be deemed not to have
been assigned by TEAM, O-A or Pulse, as the case may be, to the Company or any
Subsidiary, as the case may be. In those circumstances, if requested
by the Purchaser, after the Closing, the Principals will use their best efforts
to obtain any such consent (excluding the payment of any fees). If
such consent is not obtained and is required to effectively assign any
agreement, contract or commitment to the Company or any Subsidiary, WWG and the
Principals will cooperate with the Company or such Subsidiary to provide the
Company or such Subsidiary with the full claims, rights and benefits thereunder,
including enforcement at the cost and for the benefit of the Company or such
Subsidiary of any and all rights of TEAM, O-A or Pulse, as the case may be,
against a third party thereto arising out of the breach or cancellation by such
third party or otherwise, and any amount received by TEAM, O-A or Pulse, as the
case may be, in respect thereof shall be held for and paid over to the Company
or such Subsidiary.
Section
2.4 Further
Assurance; Post Closing Cooperation. WWG will, from time to time, at the
request of the Purchaser, whether at or after the Closing Date, execute and
deliver such other and further instruments of conveyance, assignment, transfer
and consent necessary for the conveyance, assignment and transfer of the Assets
pursuant to the NT Conveyance Document. Following the Closing, upon
reasonable advance notice, each party will afford the other party, its counsel
and its accountants, during normal business hours, reasonable access to the
books, records and other data relating to TEAM, the Company and each Subsidiary
in its possession with respect to periods prior to the Closing and the right to
make copies and extracts therefrom, to the extent that such access may be
reasonably required by the requesting party in connection with (i) the
preparation of tax returns, (ii) the determination or enforcement of rights and
obligations under this Agreement, (iii) compliance with the requirements of any
Governmental or Regulatory Authority (as defined in Section 3.1.2), (iv)
the determination or enforcement of the rights and obligations of any party
entitled to indemnification under Article VII, (v) any actual or threatened
action or proceeding, and (vi) the verification of the Assets and Assumed
Liabilities (as defined in the NT Conveyance Document).
13
ARTICLE
III
REPRESENTATIONS OF WWG AND
THE PRINCIPALS
A. Each
of the Principals severally represents and warrants to and with the Purchaser,
as follows:
Section
3.1 Execution
and Validity of Agreements; Restrictive Documents.
3.1.1 Execution and
Validity. Each Principal has the full legal right and capacity
to enter into this Agreement and to perform his obligations
hereunder. This Agreement has been duly and validly executed and
delivered by each Principal and, assuming due authorization, execution and
delivery by the Purchaser and each other party hereto, constitutes a legal,
valid and binding obligation of each Principal as to himself, enforceable
against each Principal in accordance with its terms. Nothing herein
shall be construed to mean that one Principal is binding or has the authority to
bind any other Principal.
3.1.2 No
Restrictions. There is no suit, action, claim, investigation
or inquiry by any court, tribunal, arbitrator, authority, agency, commission,
official or other instrumentality of the United States, any foreign country or
any domestic or foreign state, county, city or other political subdivision
("Governmental or Regulatory
Authority"), and no legal, administrative or arbitration proceeding
pending or, to WWG's knowledge, threatened against any Principal with respect to
the execution, delivery and performance of this Agreement or the transactions
contemplated hereby or any other agreement entered into by any Principal in
connection with the transactions contemplated hereby.
3.1.3 Non-Contravention. The
execution, delivery and performance by each Principal of his obligations
hereunder and the consummation of the transactions contemplated hereby, will not
as of the Closing Date (a) result in the violation by any Principal of any
statute, law, rule, regulation or ordinance (collectively, "Laws"), or any judgment,
decree, order, writ, permit or license (collectively, "Orders"), of any Governmental
or Regulatory Authority, applicable to any Principal, or (b) conflict with,
result in a violation or breach of, constitute (with or without notice or lapse
of time or both) a default under, or require any Principal to obtain any
consent, approval or action of, make any filing with or give any notice to, or
result in or give to any Person any right of payment or reimbursement,
termination, cancellation, modification or acceleration of, or result in the
creation or imposition of any Lien upon any of the assets or properties of any
Principal, under any of the terms, conditions or provisions of any agreement,
commitment, lease, license, evidence of indebtedness, letter of credit,
mortgage, indenture, security agreement, instrument, note, bond, franchise,
permit, concession, or other instrument, obligation or agreement of any kind,
written or oral (collectively, "Contracts"), to which any
Principal is a party or by which any Principal or any of his assets or
properties are bound.
3.1.4 Approvals and
Consents. No consent, approval or action of, filing with or
notice to any Governmental or Regulatory Authority or Person is necessary or
required under any of the terms, conditions or provisions of any Law or Order of
any Governmental or Regulatory Authority or any Contract to which any Principal
is a party for the execution and delivery of this Agreement by any Principal,
the performance by any Principal of his obligations hereunder or the
consummation of the transactions contemplated hereby.
14
B. WWG
and the Principals, jointly and severally, represent and warrant to and with the
Purchaser, as follows:
Section
3.2 Execution
and Validity; Existence and Good Standing. WWG has the
full corporate power and authority to enter into this Agreement and to perform
its obligations hereunder and thereunder. Each of TEAM and NT has the
full corporate power and authority to enter into the NT Conveyance Document, and
to perform their respective obligations thereunder. The execution and delivery
of this Agreement by WWG and the NT Conveyance Document by TEAM and NT, and the
consummation by such parties of the transactions contemplated hereby and thereby
have been duly authorized by all required corporate action on behalf of such
parties. This Agreement has been duly and validly executed and
delivered by WWG and constitutes a legal, valid and binding obligation of WWG,
enforceable against it in accordance with its terms, subject to the effect of
any applicable bankruptcy, reorganization, insolvency, moratorium or similar
laws affecting creditors rights generally and subject, as to enforceability, to
the effect of general principles of equity. The NT Conveyance
Document has been duly and validly executed and delivered by TEAM and NT, and
constitutes the legal, valid and binding obligations of TEAM and NT, enforceable
against each of them in accordance with their terms, subject to the effect of
any applicable bankruptcy, reorganization, insolvency, moratorium or similar
laws affecting creditors rights generally and subject, as to enforceability, to
the effect of general principles of equity. The Company and TEAM are
each duly organized and are each validly existing and in good standing
(including tax status) under the laws of the State of Delaware and the
Commonwealth of Massachusetts, respectively, with the full power and authority
to own their respective property and to carry on their respective businesses all
as and in the places where such properties are now owned or operated or such
businesses re now being conducted except where such failure to qualify would not
have a material adverse effect on the respective business. The
Company and TEAM are each duly qualified, licensed or admitted to do business
and each of them is in good company and tax standing in the jurisdictions set
forth on Schedule 3.2,
which are the only jurisdictions in which the ownership, use or leasing of their
assets and properties, or the conduct or nature of their business, makes such
qualification, licensing or admission necessary.
15
Section
3.3 Capital
Stock; Equity Ownership; No Options or Restrictions; Subsidiaries and
Investments. WWG is the owner of record and beneficially
has valid title to 99% of the Membership Interests of the Company and such
ownership is free and clear of all Liens. WWG2 is the owner of
record and beneficially has valid title to 1% of the Membership Interests of the
Company and such ownership is free and clear of all Liens. There are
no outstanding subscriptions, options, warrants, rights (including "phantom
stock rights"), calls, commitments, understandings, conversion rights, rights of
exchange, plans or other agreements of any kind providing for the purchase,
issuance or sale of any equity or ownership or proprietary interest of the
Company, or which grants any Person other than WWG or WWG2 the right to share in
the earnings of the Company. There is no suit, action, claim, or to
the knowledge of WWG, investigation or inquiry by any Governmental or Regulatory
Authority, and no legal, administrative or arbitration proceeding pending or, to
the knowledge of WWG, threatened against a Principal or the Company or any of
the Membership Interests, with respect to the execution, delivery and
performance of this Agreement, the NT Conveyance Document or the transactions
contemplated hereby or thereby or any other agreement entered into by WWG, a
Principal or the Company in connection with the transactions contemplated hereby
or thereby. Except for the Subsidiaries, the Company does not,
directly or indirectly, own any equity interest in or have any voting rights
with respect to any Person. Schedule 3.3 lists the full
legal name of each Subsidiary and all lines of business in which each Subsidiary
is participating or engaged. Each Subsidiary is duly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization, with full power and authority to own its assets and properties and
to carry on its business all as and in the places where such properties are now
owned or operated or such business is now being
conducted. Each Subsidiary is duly qualified, licensed or
admitted to do business and is in good standing in those jurisdictions specified
on Schedule 3.3, which
are the only jurisdictions in which the ownership, use or leasing of such
Subsidiary's assets and properties, or the conduct or nature of its business,
makes such qualification, licensing or admission necessary, except for those
jurisdictions in which the adverse effects of all such failures by the Company
and the Subsidiaries to be qualified, licensed or admitted and in good standing
can in the aggregate be eliminated without material cost or expense by the
Company or a Subsidiary, as the case may be, becoming qualified, licensed or
admitted and in good standing. The Company is the owner of record and
beneficially has valid title to 100% of the membership interests of each
Subsidiary. All of the outstanding equity interests in each
Subsidiary have been duly authorized and validly issued, are fully paid and
nonassessable, have not been issued in violation of any preemptive rights of
other equity interest holders, and are owned, beneficially and of record, by the
Company (or Subsidiaries wholly owned by the Company) free and clear of all
Liens. There are no (a) outstanding subscriptions, options, warrants,
rights (including "phantom stock rights"), calls, commitments, understandings,
conversion rights, rights of exchange, plans or other agreements of any kind
providing for the purchase, issuance or sale of any equity interests in any
Subsidiary, except pursuant to this Agreement or (b) voting trusts, proxies or
other commitments, understandings, restrictions or arrangements in favor of any
Person other than the Company or the Subsidiary with respect to the voting of or
the right to participate in dividends, distributions or other earnings on any
equity interest in any Subsidiary.
Section
3.4 Financial
Statements and No Material Changes. Schedule 3.4(A) sets forth (a)
the consolidated unaudited balance sheets of WWG and its subsidiaries as at
December 31, 2008 and December 31, 2009 (the consolidated unaudited balance
sheets of WWG and its subsidiaries as at December 31, 2009, hereinafter referred
to as the "Balance
Sheet") and the related consolidated unaudited statements of income for
the calendar years then ended. Such financial statements have been
prepared in accordance with GAAP throughout the periods indicated except as set
forth on Schedule
3.4(B). Each balance sheet fairly presents the financial
condition of the entity or entities included within such balance sheet, at the
respective date thereof, and reflects all claims against and all debts and
liabilities of such entities, fixed or contingent, as at the respective date
thereof, required to be shown thereon under GAAP and the related statements of
income present the results of operations for the respective period
indicated. Except for the transactions consummated pursuant to the
Formation and the NT Conveyance Document, since December 31, 2009 (the "Balance Sheet Date"), there
has been no material adverse change in the assets or liabilities, or in the
business or condition, financial or otherwise, or in the results of operations
of WWG or the Company.
16
Section
3.5 Books and
Records. Except as set forth on Schedule 3.5, all accounts,
books, ledgers and official and other records material to the business of TEAM,
the Company, or any Subsidiary maintained by or on behalf of WWG, TEAM, O-A,
Pulse, the Company or any Subsidiary, of whatsoever kind have been properly and
accurately kept and completed in all material respects, and there are no
material inaccuracies or discrepancies of any kind contained or reflected
therein. Except as set forth on Schedule 3.5, neither TEAM, O-A or
Pulse had, and the Company nor any Subsidiary has, any of its records, systems,
controls, data or information recorded, stored, maintained, operated or
otherwise wholly or partly dependent on or held by any means (including any
electronic, mechanical or photographic process, whether computerized or not)
which (including all means of access thereto and therefrom) were not under the
exclusive ownership and possession of WWG or are not under the exclusive
ownership and possession of the Company or such Subsidiary. WWG has
delivered to the Purchaser complete and correct copies of the Certificates of
Formation and the Limited Liability Company Agreements of each of the Company
and the Subsidiaries, with all amendments thereto, currently in effect, and
copies of the minute books and stock transfer records (or similar transfer
records) of the Company and each Subsidiary.
Section
3.6 Title to
Properties; Encumbrances; No Prior Activities.
3.6.1 Title to Properties;
Encumbrances. Except for the Excluded Assets listed in the NT
Conveyance Document, TEAM, O-A and Pulse, as the case may be, had and the
Company and each Subsidiary now has good and valid title to, or enforceable
leasehold interests in or valid rights under contract to use, all the properties
and assets owned or used by TEAM, O-A and Pulse, as the case may be, (real,
personal, tangible and intangible), including, without limitation (a) all the
properties and assets reflected in the Balance Sheet, and (b) all the properties
and assets purchased or otherwise contracted for by the Company or any
Subsidiary since the Balance Sheet Date (except for properties and assets
reflected in the Balance Sheet or acquired or otherwise contracted for since the
Balance Sheet Date that have been sold or otherwise disposed of in the ordinary
course of business), in each case free and clear of all Liens, except for Liens
set forth on Schedule
3.6. The
property, plant and equipment conveyed to the Company or any Subsidiary, whether
owned or otherwise contracted for, is in a state of good maintenance and repair
(ordinary wear and tear excepted) and is adequate and suitable for the purposes
for which they are presently being used.
3.6.2 No Prior
Activities. The Company and each Subsidiary was created solely
for the purpose of engaging in the transactions contemplated by the consummation
of the reorganizations contemplated by the NT Conveyance Document and this
Agreement. Neither the Company nor any Subsidiary has engaged in any
activities other than in connection with its formation, the negotiation,
execution and delivery of this Agreement, the NT Conveyance Document and the
Operating Agreement, and the consummation of the transactions contemplated
hereby and thereby. Except for liabilities incurred in connection
with its formation and the consummation of the transactions contemplated by this
Agreement, the NT Conveyance Document and the Operating Agreement, neither the
Company nor any Subsidiary has incurred any liabilities or entered into any
agreements or arrangements with any Person. Prior to the date hereof, neither
O-A or Pulse conducted any business of any nature (other than general start-up
activities relating to the formation of such companies).
17
Section
3.7 Real
Property.
3.7.1 Owned Real
Property. None of TEAM, O-A,
Pulse, the Company or any Subsidiary own any real property (including ground
leases) or hold a freehold interest in any real property or any option or right
of first refusal or first offer to acquire any real property.
3.7.2 Leased Real
Property. Schedule 3.7.2 contains an
accurate and complete list of all real property leases, subleases, real property
licenses and other occupancy agreements, including without limitation, any
modification, amendment or supplement thereto and any other related document or
agreement executed or entered into by WWG, TEAM, O-A or Pulse, as the case may
be, and assigned to the Company or any Subsidiary pursuant to the NT Conveyance
Document to which the Company or a Subsidiary is a party (as lessee, sublessee,
lessor, sublessor, licensor or licensee) (each individually, a "Real Property Lease" and
collectively, the "Real
Property Leases"). Each Real Property Lease set forth on Schedule 3.7.2 (or required to be set
forth on Schedule 3.7.2) is valid, binding and
in full force and effect; all rents and additional rents and other sums,
expenses and charges due thereunder to date on each such Real Property Lease
have been paid; and the lessee has been in peaceable possession since the
commencement of the original term of such Real Property Lease and no waiver,
indulgence or postponement of the lessee's obligations thereunder has been
granted by the lessor. There exists no default or event of default by
WWG, the Company or any Subsidiary or to the knowledge of WWG by any other party
to any Real Property Lease; and there exists no occurrence, condition or act
(including the purchase of the Purchased Interests hereunder) which, with the
giving of notice, the lapse of time or the happening of any further event or
condition, would become a default or event of default by WWG, the Company or any
Subsidiary under any Real Property Lease, and there are no outstanding claims of
breach or indemnification or notice of default or termination of any Real
Property Lease. WWG, TEAM, O-A or Pulse, as the case may be, held and
the Company or a Subsidiary, as the case may be, now holds the leasehold estate
on all the Real Property Leases free and clear of all Liens except as set forth
on Schedule
3.7.2. The real property leased by the Company and the
Subsidiaries is in a state of good maintenance and repair (ordinary wear and
tear excepted), adequate and suitable for the purposes for which it is presently
being used, and there are no material repair or restoration works likely to be
required in connection with any of the leased real properties. WWG,
TEAM, O-A or Pulse, as the case may be, was, and the Company or a Subsidiary now
is, in physical possession and actual and exclusive occupation of the whole of
each of its leased properties. To the knowledge of WWG, no
environmental claim has been made against WWG, TEAM, O-A, Pulse, the Company or
any Subsidiary with respect to any Real Property Lease. None of WWG,
TEAM, O-A, Pulse, the Company or any Subsidiary owes any brokerage commission
with respect to any of the Real Property Leases.
18
Section
3.8 Contracts. Schedule 3.8 hereto contains an
accurate and complete list of the following Contracts (whether written or oral,
but indicating which Contracts are oral) to which the Company or any Subsidiary
is currently a party or TEAM, O-A or Pulse, as the case may be, was a party
prior to the assignment of the same to the Company or any Subsidiary pursuant to
the NT Conveyance Document (and Schedule 3.8 indicates if a
listed item has not been assigned to
and assumed by the Company or any Subsidiary pursuant to the NT Conveyance
Document): (a) all Plans (as such term is defined in Section 3.19), (b)
any personal property lease with a fixed annual rental of $10,000 or more, (c)
any Contract relating to capital expenditures which involves payments of $25,000
or more in any single transaction or series of related transactions,
(d) any Contract relating to the making of a loan or advance to or
investment in, any other Person, (e) any agreement, instrument or
arrangement evidencing or relating in any way to indebtedness for money borrowed
or to be borrowed, whether directly or indirectly, by way of loan, purchase
money obligation, guarantee (other than the endorsement of negotiable
instruments for collection in the ordinary course of business), conditional
sale, purchase or otherwise, (f) any management service, employment,
consulting or similar type of Contract which is not cancelable by the Company or
any Subsidiary without penalty or other financial obligation within 30 days,
(g) any Contract limiting the Company's or any Subsidiary's freedom to
engage in any line of business or to compete with any other Person, including,
without limitation, any agreement limiting the ability of the Company or any
Subsidiary or any of their respective affiliates to take on competitive accounts
during or after the term thereof, (h) any collective bargaining or union
agreement, (i) any Contract between the Company or any Subsidiary, on the
one hand, and any officer or director thereof, on the other hand, not covered by
subsection (f) above (including indemnification agreements), (j) any
secrecy or confidentiality agreement (other than standard confidentiality
agreements in computer software license agreements or agreements with clients
entered into in the ordinary course of business), (k) any agreement with
respect to any Intellectual Property (as defined in Section 3.14) other
than "shrink-wrap" and similar end-user licenses, (l) any agreement with a
client required to be listed on Schedule 3.16, (m) any
agreement, indenture or other instrument which contains restrictions which
affect the ability of the Company or any Subsidiary to make distributions in
respect of its equity, (n) any joint venture agreement involving a sharing
of profits not covered by clauses (a) through (m) above, (o) any
Contract (not covered by another subsection of this Section 3.8) which
involves $25,000 or more over the unexpired term thereof and is not cancelable
by the Company or any Subsidiary, as the case may be, without penalty or other
financial obligation within 30 days; provided, however, Contracts of a similar
nature which individually do not involve $25,000 but in the aggregate involve
$25,000 or more over the unexpired terms shall also be set forth on Schedule 3.8 (p) any Contract
with a media buying service; provided, however, commitments to purchase media in
the ordinary course of business do not have to be set forth on Schedule 3.8, and (q) any
agreement (not covered by another subsection of this Section 3.8) between
the Company or a Subsidiary, on the one hand, and any member of the Company, on
the other hand. Notwithstanding anything to the contrary contained above, (x)
commitments to media and production expenses which are fully reimbursable from
clients, and (y) estimates or purchase orders given in the ordinary course
of business relating to the execution of projects, do not have to be set forth
on Schedule 3.8. Each Contract which has
been assigned to and assumed by the Company or any Subsidiary pursuant to the NT
Conveyance Document, as applicable, including without limitation, those required
to be set forth on Schedule 3.8, is in full force and
effect, and there exists no default or event of default by the Company or any
Subsidiary or to the knowledge of WWG, by any other party, or occurrence,
condition, or act (including the purchase of the Purchased Interests hereunder)
which, with the giving of notice, the lapse of time or the happening of any
other event or condition, would become a default or event of default thereunder
by the Company or any Subsidiary, and there are no outstanding claims of breach
or indemnification or notice of default or termination of any such
Contract. Summaries of all oral Contracts contained on Schedule 3.8 are complete and
accurate in all material respects.
19
Section
3.9 Non-Contravention;
Approvals and Consents. The execution, delivery and
performance by any Principal, the Company or any Subsidiary and WWG, TEAM, O-A
and Pulse of their respective obligations under this Agreement and the NT
Conveyance Document and the consummation of the transactions contemplated hereby
and thereby, will not (a) violate, conflict with or result in the breach of any
provision of the certificate of formation and limited liability company
agreement (or other comparable documents) of the Company or any Subsidiary or
WWG, TEAM, O-A and Pulse; (b) result in the violation by the Company or any
Subsidiary or WWG, TEAM, O-A and Pulse of any Laws or Orders of any Governmental
or Regulatory Authority applicable to any of them or any of their respective
assets or properties, or (c) if the consents and notices set forth in Schedule 3.9 are obtained,
conflict with, result in a violation or breach of, constitute (with or without
notice or lapse of time or both) a default under, or require the Company or any
Subsidiary or WWG, TEAM, O-A or Pulse to obtain any consent, approval or action
of, make any filing with or give any notice to, or result in or give to any
Person any right of payment or reimbursement, termination, cancellation,
modification or acceleration of, or result in the creation or imposition of any
Lien upon any of their respective assets or properties, or under any of the
terms, conditions or provisions of any Contract to which the Company or any
Subsidiary is a party or by which the Company or any Subsidiary or WWG, TEAM,
O-A and Pulse or any of their respective assets or properties are or were
bound. Except as set forth in Schedule 3.9, no consent,
approval or action of, filing with or notice to any Governmental or Regulatory
Authority or other Person is necessary or required under any of the terms,
conditions or provisions of any Law or Order of any Governmental or Regulatory
Authority or any Contract to which the Company or any Subsidiary or WWG, TEAM,
O-A and Pulse is a party, or by which their respective assets or properties were
or are bound for the execution and delivery of this Agreement or the NT
Conveyance Document, the performance by the Company or any Subsidiary or WWG,
TEAM, O-A and Pulse of their respective obligations hereunder or thereunder or
the consummation of the transactions contemplated hereby or
thereby.
Section
3.10 Litigation. Except
as set forth on Schedule
3.10, there is no action, suit, proceeding at law or in equity by any
Person, or any arbitration or any administrative or other proceeding by or
before (or to the knowledge of WWG, any investigation by) any Governmental or
Regulatory Authority, pending or, to the knowledge of WWG, threatened, against
the Company or any Subsidiary or WWG, TEAM, O-A and Pulse with respect to this
Agreement or the transactions contemplated hereby or by the NT Conveyance
Document, or any other agreement entered into by the Company or any Subsidiary
or WWG, TEAM, O-A and Pulse in connection with the transactions contemplated
hereby, or against or affecting the business or the assets transferred to the
Company or any Subsidiary pursuant to the NT Conveyance Document; and no acts,
facts, circumstances, events or conditions occurred or exist which are a basis
for any such action, proceeding or investigation. None of the
Company, any Subsidiary, WWG, TEAM, O-A or Pulse is subject to any Order entered
in any lawsuit or proceeding. Schedule 3.10 also sets forth
with respect to each pending or threatened action, suit or proceeding listed
thereon, the amount of costs, expenses or damages the Company, any Subsidiary or
WWG, TEAM, O-A or Pulse has incurred to date and reasonably expects to incur
through the conclusion thereof.
20
Section
3.11 Taxes. Each
of WWG, TEAM, O-A, Pulse, the Company and each Subsidiary has timely completed
and filed, or caused to be filed, taking into account any valid extensions of
due dates, completely and accurately, all federal, state, local and foreign (if
any) tax or information returns (including estimated tax returns) required under
the statutes, rules or regulations of such jurisdictions to be filed by WWG,
TEAM, O-A, Pulse, the Company and each Subsidiary. The term "Taxes" means taxes, duties,
charges or levies of any nature imposed by any taxing or other Governmental or
Regulatory Authority, including without limitation income, gains, capital gains,
surtax, capital, franchise, capital stock, value-added taxes, taxes required to
be deducted from payments made by the payor and accounted for to any tax
authority, employees' income withholding, back-up withholding, withholding on
payments to foreign Persons, social security, national insurance, unemployment,
worker's compensation, payroll, disability, real property, personal property,
sales, use, goods and services or other commodity taxes, business, occupancy,
excise, customs and import duties, transfer, stamp, and other taxes (including
interest, penalties or additions to tax in respect of the foregoing), and
includes all taxes payable by WWG, TEAM, O-A, Pulse, the Company and each
Subsidiary pursuant to Treasury Regulations §1.1502-6 or any similar provision
of state, local or foreign law. All Taxes shown on said returns to be
due and all other Taxes due and owing (whether or not shown on any Tax return)
have been timely paid and all additional assessments received prior to the date
hereof have been timely paid or are being contested in good faith, in which
case, such contested assessments are set forth on Schedule 3.11. Each
of WWG, TEAM, O-A, Pulse, the Company and each Subsidiary has collected all
sales, use, goods and services or other commodity Taxes required to be collected
and remitted or will remit the same to the appropriate taxing authority within
the prescribed time periods. Each of WWG, TEAM, O-A, Pulse, the
Company and each Subsidiary has withheld all amounts required to be withheld on
account of Taxes from amounts paid to employees, former employees, directors,
officers, members, residents and non-residents and remitted or will remit the
same to the appropriate taxing authorities within the prescribed time
periods. The amount set up as an accrual for Taxes (aside from any
reserved for deferred Taxes established to reflect timing differences between
book and Tax accrual) on the Balance Sheet (as opposed to the notes thereto) is
sufficient for the payment of all unpaid Taxes of each of WWG, TEAM, O-A, Pulse,
the Company and each Subsidiary, as the case may be, whether or not disputed,
for all periods ended on and prior to the date thereof. Since the
Balance Sheet Date, none of WWG, TEAM, O-A, Pulse, the Company or any Subsidiary
has incurred any liabilities for Taxes other than in the ordinary course of
their respective businesses consistent with past custom and practice. No
stockholder, member, manager, director or officer (or employee responsible for
Tax matters) of any of WWG, TEAM, O-A, Pulse, the Company or any Subsidiary
expects any authorities to assess any additional Taxes for any period for which
Tax returns have been filed. Schedule 3.11 sets forth each
jurisdiction (other than United States federal) in which WWG, TEAM, O-A, Pulse,
the Company or any Subsidiary files, is required to file, or has been required
to file a tax return or is or has been liable for any Taxes on a "nexus"
basis. None of WWG, TEAM, O-A, Pulse, the Company or any Subsidiary
have received any notice of a claim by any Governmental or Regulatory Authority
in any jurisdictions where any of them do not file tax returns that any of them
may be subject to Tax by that jurisdiction. WWG has
delivered to the Purchaser correct and complete copies of all federal, state,
local and foreign income tax returns filed with respect to WWG, TEAM, O-A,
Pulse, the Company and the Subsidiaries. Except as set forth on Schedule 3.11, none of the
federal, state, local or foreign income tax returns of WWG, TEAM, O-A, Pulse,
the Company or any Subsidiary have ever been audited by the Internal Revenue
Service or any other Governmental or Regulatory Authority. No
examination of any return of WWG, TEAM, O-A, Pulse, the Company or any
Subsidiary is currently in progress, and none of WWG, TEAM, O-A, Pulse, the
Company or any Subsidiary has received notice of any proposed audit or
examination. No deficiency in the payment of Taxes by WWG, TEAM, O-A,
Pulse, the Company or any Subsidiary for any period has been asserted in writing
by any taxing authority and remains unsettled at the date of this
Agreement. None of WWG, TEAM, O-A, Pulse, the Company or any
Subsidiary has made any agreement, waiver or other arrangement providing for an
extension of time with respect to the assessment or collection of any Taxes
against it. None of WWG, TEAM, O-A, Pulse, the Company or any
Subsidiary has been a member of an affiliated group filing consolidated federal
income tax returns nor has it been included in any combined, consolidated or
unitary state or local income tax return. None of WWG, TEAM, O-A,
Pulse, the Company or any Subsidiary will be required as a result of a change in
accounting method for any period ending on or before the Closing Date to include
any adjustment under Section 481 of the Code (or any similar provision of state,
local or foreign income tax law) in income for any period ending after the
Closing Date, or as a result of a change for any period that may be required by
law in connection with the transactions contemplated by this
Agreement. None of WWG, TEAM, O-A, Pulse, the Company or any
Subsidiary are obligated to make any payments or is a party to any agreement
that under certain circumstances could obligate it to make any payments that
will not be deductible under Section 280G of the Code. None of WWG,
TEAM, O-A, Pulse, the Company or any Subsidiary is or has been a U.S. real
property holding corporation within the meaning or Section 897 of the
Code. None of WWG, TEAM, O-A, Pulse, the Company or any Subsidiary
has entered into any Tax sharing or indemnification agreement with any
party. None of the Purchaser, WWG, TEAM, O-A, Pulse, the Company or
any Subsidiary will be required to include any item of income in, or exclude any
item of deduction from, taxable income for any taxable period (or portion
thereof) ending after the Closing Date as a result of any: (i) "closing
agreement" as described in Code Section 7121 (or any corresponding or similar
provision of state, local, or foreign income tax law); (ii) installment sale or
open transaction disposition made on or prior to the Closing Date; or (iii)
prepaid amount received on or prior to the Closing Date. Since its
inception, WWG has a valid election under Treasury Regulation Section 301.7701-3
to be taxed as a corporation for federal, state and local income tax purposes
and since its inception has validly elected to be treated as an Subchapter S
corporation within the meaning of Section 1361 of the Code for federal, state
and local income tax purposes, and such elections remain in full force and
effect. Commencing with the initial fiscal year in which WWG owned stock in
TEAM, WWG has had an election in effect under Treasury Regulation Section
1.1361-3, to treat TEAM as a qualified subchapter S subsidiary for federal,
state and local income tax purposes and such election remains in full force and
effect. In any fiscal year in which TEAM was not a qualified
Subchapter S subsidiary for federal, state and local income tax purposes, it had
validly elected to be taxed as a Subchapter S corporation within the meaning of
Section 1361 of the Code for federal, state and local income tax
purposes. Since inception, the Company, O-A, Pulse and the
Subsidiaries have been treated as disregarded entities within the meaning of
Treasury Regulation Section 301.7701-3 for federal, state and local income tax
purposes.
21
Section
3.12 Liabilities. Except
for the Assumed Liabilities (as defined in the NT Conveyance Document) set forth
in the NT Conveyance Document, or as set forth on Schedule 3.12, neither the
Company nor any Subsidiary has any outstanding claims, liabilities or
indebtedness of any nature whatsoever as to which the Company or any Subsidiary
is or may become responsible (collectively in this Section 3.12, "Liabilities"), whether
accrued, absolute or contingent, determined or undetermined, asserted or
unasserted, and whether due or to become due, other than (i) Liabilities
specifically disclosed in any Schedule hereto; (ii) Liabilities under Contracts
of the type required to be disclosed by WWG and the Principals on any
Schedule and so disclosed or which because of the dollar amount or other
qualifications are not required to be listed on such Schedule; and (iii)
Liabilities incurred since the Balance Sheet Date in the ordinary course of
business and consistent with past practice of the Company or any of the
Subsidiaries.
22
Section
3.13 Insurance. Schedule 3.13 contains a true
and complete list (including the names and addresses of the insurers, the names
of the Persons to whom such insurance policies have been issued, the expiration
dates thereof, the annual premiums and payment terms thereof, whether it is a
"claims made" or an "occurrence" policy and a brief description of the interests
insured thereby) of all liability, property, workers' compensation and other
insurance policies currently in effect that insure the property, assets or
business of TEAM, O-A and Pulse that was transferred to the Company and the
Subsidiaries pursuant to the NT Conveyance Document or the employees of the
Company and the Subsidiaries (other than self-obtained insurance policies by
such employees). Each such insurance policy is valid and binding and in full
force and effect, all premiums due thereunder have been paid and none of WWG,
TEAM, O-A, Pulse, the Company or any Subsidiary has received any notice of
cancellation or termination in respect of any such policy or default
thereunder. To the knowledge of WWG, such insurance policies are
placed with financially sound and reputable insurers, and are in amounts and
have coverage that are reasonable and customary for Persons engaged in the
operation of the business of the Company and the Subsidiaries. None
of WWG, TEAM, O-A, Pulse, the Company or any Subsidiary, or to the knowledge of
WWG, the Person to whom such policy has been issued has received notice that any
insurer under any policy referred to in this Section 3.13 is
denying liability with respect to a claim thereunder or defending under a
reservation of rights clause. Within the last two years none of WWG,
TEAM, O-A, Pulse, the Company or any Subsidiary has filed for any claims
exceeding $25,000 against any of its insurance policies, exclusive of automobile
and health insurance policies. None of such policies shall lapse or terminate by
reason of the transactions contemplated by this Agreement or the NT Conveyance
Document and all such policies shall continue in effect after the Closing Date
for the benefit of the Company and the Subsidiaries. None of WWG,
TEAM, O-A, Pulse, the Company or any Subsidiary has received any notice of
cancellation of any such policy. None of WWG, TEAM, O-A, Pulse, the
Company or any Subsidiary has received written notice from any of its insurance
carriers that any premiums will be materially increased in the future or that
any insurance coverage listed on Schedule 3.13 will not be
available in the future on substantially the same terms now in effect. None of
WWG, TEAM, O-A, Pulse, the Company or any Subsidiary has been refused any
insurance or required to pay higher than normal or customary premiums, nor has
its coverage been limited by any insurance carrier to which it has applied for
insurance during the last three years.
Section
3.14 Intellectual
Properties.
3.14.1 Definitions. For
purposes of this Agreement, the following terms have the following
definitions:
23
"Intellectual Property" shall
include, without limitation, any or all of the following and all rights
associated therewith: (a) all domestic and foreign patents, and applications
therefor, and all reissues, reexaminations, divisions, renewals, extensions,
continuations and continuations-in-part thereof; (b) all inventions (whether
patentable or not), invention disclosures, improvements; (c) trade secrets,
confidential and proprietary information, know how, technology, technical data
and customer lists, financial and marketing data, pricing and cost information,
business and marketing plans, databases and compilations of data, rights of
privacy and publicity, and all documentation relating to any of the foregoing;
(d) all copyrights, copyright registrations and applications therefor,
unregistered copyrights, the content of all World Wide Web sites of a Person and
all other rights corresponding thereto throughout the world; (e) all mask works,
mask work registrations and applications therefor; (f) all industrial designs
and any registrations and applications therefor; (g) all trade names, corporate
names, logos, trade dress, common law trademarks and service marks, trademark
and service ▇▇▇▇ registrations and applications therefor and all goodwill
associated therewith; (h) any and all Internet domain names and Web sites
(including all software and applications, and all components and/or modules
thereof), used in connection therewith; and (i) all computer software including
all source code, object code, firmware, development tools, files, records and
data, all media on which any of the foregoing is recorded, and all documentation
related to any of the foregoing.
"Intellectual Property of the Company
and its Subsidiaries" shall mean any Intellectual Property that is owned
by the Company or any Subsidiary, including Registered IP and Unregistered
IP.
"Licensed Intellectual
Property" means any Intellectual Property owned by another Person that is
used by the Company or any of the Subsidiaries in the operation of the business
of the Company or the Subsidiaries (the "Business"), including
Off-the-Shelf Software (as defined below), but excluding rights in or to
materials created for clients, to the extent to which such (x) client is the
first owner of copyright in such materials or (y) the materials are subject to a
written assignment of copyright in favor of clients of the Company or any
Subsidiary.
24
3.14.2 Representations. Except
as set forth on Schedule
3.14.2, all of the Intellectual Property of TEAM, O-A and Pulse was
transferred to the Company and the Subsidiaries pursuant to the NT Conveyance
Documents. Schedule
3.14.2 hereto contains an accurate and complete list of all (a) patents,
patent applications, registered trademarks, applications for registered
trademarks, registered service marks, domain names, applications for registered
service marks, logos, registered copyrights and applications for registered
copyrights which are owned by the Company or any Subsidiary (the "Registered IP"), (b) all
unregistered trademarks, unregistered service marks and material unregistered
copyrights which are owned by the Company or any Subsidiary (the "Unregistered IP") and (c) all
Licensed Intellectual Property that is material to the operation of the
Business, other than widely distributed off-the-shelf applications subject to
shrink-wrap and similar non-negotiated end-user license agreements ("Off-the-Shelf Software").
Except as set forth on Schedule
3.14.2, the registrations and applications of the Registered IP listed on
Schedule 3.14.2 are in
the name of WWG, TEAM, O-A or Pulse, as the case may be, and are valid, in
proper form, enforceable and subsisting, all necessary registration and renewal
fees in connection with such registrations have been made and all necessary
documents and certificates in connection with such registrations have been filed
with the relevant patent and Internet domain names, copyrights and trademark
authorities in the United States or other jurisdictions where the Business is
conducted for the purposes of maintaining such Intellectual Property
registrations, and applications therefore, and no actions (including filing of
documents or payments of fees) are due within ninety (90) days after the
Closing. No registration, or application therefor, for any of the
Registered IP has lapsed, expired, or been abandoned, and no such registrations,
or applications therefor, are the subject of any opposition, interference,
cancellation, or other legal, quasi-legal, or governmental proceeding pending
before any governmental, registration, or other authority in any
jurisdiction. Except as set forth on Schedule 3.14.2, (i) the
Company or one of its Subsidiaries, as applicable, is the sole and exclusive
owner of all rights, title and interest in and to the Intellectual Property of
the Company and its Subsidiaries, free and clear of all Liens, (ii) no Person
has any rights to use any of the Intellectual Property of the Company and its
Subsidiaries, (iii) none of WWG, TEAM, O-A, Pulse the Company or any Subsidiary
has granted to any Person, or authorized any Person to retain, any ownership in
the Intellectual Property of the Company and its Subsidiaries, and (iv) all
Licensed Intellectual Property in the Company's or any Subsidiary's possession
or used in the operation of the Business has been properly licensed from the
owner of such Intellectual Property, and the Company and such Subsidiary, as
applicable, possess all license agreements, certificates or documentation
sufficient to substantiate such rights, and the Company and each such Subsidiary
are in compliance with, and WWG, TEAM, O-A and Pulse have not in the past
violated, such license agreements. Except as set forth on Schedule 3.14.2, the consummation of the
transactions contemplated hereby will not result in any loss or impairment of
the Company's or any Subsidiary's rights to own or use any Intellectual
Property, nor will such consummation require the consent of any third party in
respect of any Intellectual Property. The operation of the Business and use of
all Intellectual Property therein does not infringe the Intellectual Property of
any other Person. There are no proceedings pending or, to the knowledge of WWG,
threatened against WWG, TEAM, O-A, Pulse, the Company or any Subsidiary with
respect to the Intellectual Property, or with respect to any other Intellectual
Property, alleging the infringement or misappropriation by WWG, TEAM, O-A,
Pulse, the Company or any Subsidiary of any Intellectual Property of any Person,
and none of WWG, TEAM, O-A, Pulse, the Company or any Subsidiary has received
notice from any Person that the operation of the Business infringes the
Intellectual Property of any Person. There are no claims pending or,
to the knowledge of WWG, threatened challenging the validity of any Intellectual
Property of the Company or any Subsidiary or any Intellectual Property used by
the Company or any Subsidiary in the conduct of the Business. None of WWG, TEAM,
O-A, Pulse, the Company or any Subsidiary has entered into or is otherwise bound
by any consent, forbearance or any settlement agreement which limits the rights
of the Company or any Subsidiary to use the Intellectual Property of the Company
and its Subsidiaries. To the knowledge of WWG, no Person is infringing or
misappropriating any of the Intellectual Property of the Company and its
Subsidiaries. All Intellectual Property of the Company and its Subsidiaries was
either developed (a) by employees of WWG, TEAM, O-A or Pulse within the scope of
such employee's employment duties; or (b) by independent contractors or other
third parties who have assigned all of their rights therein WWG, TEAM, O-A or
Pulse, as the case may be, pursuant to a written agreement, and all such
employees, independent contractors, and other third parties have waived,
pursuant to a written agreement, their moral rights in all such Intellectual
Property in favor of the Company or any Subsidiary, as the case may
be. Except as set forth on Schedule 3.14.2, the
Intellectual Property of the Company and its Subsidiaries does not contain any
software licensed under terms which require, as a condition of the use,
modification, or distribution of such software, that other software incorporated
into, derived from, or distributed with such software: (x) be disclosed or
distributed in source code form; (y) be licensed under terms that permit making
derivative works; or (z) be redistributable at no charge to subsequent
licensees.
25
3.14.3 Privacy and
Security. All information or data of any kind possessed by the
Company or any Subsidiary, including but not limited to, personally identifiable
information collected from consumers ("PII"), aggregate or anonymous
information collected from consumers ("Non-PII") and employee data
(collectively, "Data"),
has been collected, by WWG, TEAM, O-A, Pulse, the Company or any Subsidiary, or
any other Person, and is being maintained, stored, processed and used by the
Company and the Subsidiaries, in compliance with all Laws and
Orders. WWG, TEAM, O-A, Pulse, the Company or any Subsidiary has at
all times presented a privacy policy ("Privacy Policy") to consumers
prior to the collection of any PII or Non-PII online. The Privacy
Policy, and any other representations, marketing materials and advertisements
that address privacy issues and the treatment of PII and Non-PII, accurately and
completely describe WWG's, TEAM's, O-A's, Pulse's, the Company's and each any
Subsidiary's respective information collection and use practices, and no such
notices or disclosures have been inaccurate, misleading or
deceptive. None of WWG, TEAM, O-A, Pulse, the Company or any
Subsidiary has collected or received any PII from children under the age of 13
without verifiable parental consent or directed any of its websites to children
under the age of 13 through which such PII could be obtained. WWG,
TEAM, O-A, Pulse, the Company or any Subsidiary has stored and maintained all
Data in a secure manner, using commercially reasonable technical measures, to
assure the integrity and security of the Data and to prevent loss, alteration,
corruption, misuse and unauthorized access to such Data. There has been no
unauthorized use, access to or disclosure of any Data. None of WWG, TEAM,
O-A, Pulse, the Company or any Subsidiary has received any claims, notices or
complaints regarding its information practices or use of Data. The
consummation of the transactions contemplated hereby will not result in any loss
or impairment of the rights to own and use any Data, nor will such consummation
require the consent of any third party in respect of any Data.
Section 3.15 Compliance
with Laws; Permits. The Company and the Subsidiaries are, and
the Business (including the businesses conducted by TEAM, O-A and Pulse) has
been conducted, in compliance with all applicable Laws and Orders, except in
each case (other than with respect to compliance with environmental Laws and
Orders relating to the regulation or protection of the environment ("Environmental Laws and
Orders")) where the failure to so comply would not reasonably be expected
to have a Material Adverse Effect (as defined below), including without
limitation: (a) all Laws and Orders promulgated by the Federal Trade Commission
or any other Governmental or Regulatory Authority; (b) all Environmental Laws
and Orders; and (c) all Laws and Orders relating to labor, civil rights, and
occupational safety and health laws, worker's compensation, employment and
wages, hours and vacations, or pay equity. None of WWG, TEAM, O-A, Pulse, the
Company or any Subsidiary has been charged with, or, to the knowledge of WWG,
threatened with or under any investigation with respect to, any charge
concerning any violation of any Laws or Orders. The term "Material Adverse Effect" as it
applies to WWG, TEAM, O-A, Pulse, the Company or any Subsidiary, shall mean a
material adverse effect on its operations, business, prospects, assets or
financial condition. The Company and each Subsidiary has all permits, licenses,
and other government certificates, authorizations and approvals ("Required Permits") required by
any Governmental or Regulatory Authority for the operation of the Business,
except where the failure to have such Required Permits would not reasonably be
expected to have a Material Adverse Effect. All of the Required Permits
are in full force and effect and no action or claim is pending, nor to the
knowledge of WWG, is threatened, to revoke or terminate any such Required Permit
or declare any such Required Permit invalid in any material
respect.
26
Section 3.16
Client
Relations. Schedule 3.16 sets forth (a) the 10
largest clients of the Company and of each Subsidiary (measured by revenues),
and the revenues from each such client and from all clients (in the aggregate)
for the calendar years ended December 31, 2008 and December 31, 2009 and (b) the
clients projected to be the 10 largest clients (measured by revenues) of the
Company and of each Subsidiary based on the Company's and each Subsidiary's
current profit plan for the twelve months ending December 31, 2010, together
with the estimated revenues from each such client and all clients (in the
aggregate) for such period. WWG and the Principals do not warrant that the
clients will remain clients of the Company or any Subsidiary beyond the Closing
or that the estimated revenues set forth on Schedule 3.16 will prove to be
accurate; provided, however, they do
represent that they were made in good faith and on a reasonable basis. No
client of WWG, TEAM, O-A, Pulse, the Company or any Subsidiary has advised any
Principal or any of WWG, TEAM, O-A, Pulse, the Company or any Subsidiary in
writing that it is (x) terminating or considering terminating the handling of
its business, in whole or in respect of any particular project or service or (y)
planning to reduce its future spending with the Company or any Subsidiary in any
material manner.
Section 3.17 Accounts
Receivable; Work-in-Process; Accounts Payable. The amount of
all work-in-process, accounts receivable, unbilled invoices (including without
limitation unbilled invoices for services and out-of-pocket expenses) and other
debts due or recorded in the records and books of account of TEAM, O-A and Pulse
and which was transferred to the Company and the Subsidiaries pursuant to the NT
Conveyance Document, as being due to the Company and the Subsidiaries and
reflected on the Balance Sheet and the Closing Balance Sheet represent or will
represent valid obligations arising from sales actually made or services
actually performed in the ordinary course of business and will be good and
collectible in full (less the amount of any provision, reserve or similar
adjustment therefor reflected on the Balance Sheet and the Closing Balance
Sheet) in the ordinary course of business, and none of the accounts receivable
or other debts (or accounts receivable arising from any such work-in-process or
unbilled invoices) is or will be subject to any counterclaim or set-off except
to the extent of any such provision, reserve or adjustment. The accounts
payable set forth on the Balance Sheet, and the accounts payable incurred since
the Balance Sheet Date through the Closing Date, represent trade payables
resulting from bona fide transactions incurred in the ordinary course of
business. There has been no change since the Balance Sheet Date in the amount or
aging of the work-in-process, accounts receivable, unbilled invoices, or other
debts due to the Company or any Subsidiary, or the reserves with respect
thereto, or accounts payable of the Company or any Subsidiary which would have a
Material Adverse Effect.
27
Section 3.18 Employment
Relations. (a) No unfair labor practice complaint against
WWG, TEAM, O-A, Pulse, the Company or any Subsidiary is pending before any
Governmental or Regulatory Authority; (b) there is no organized labor strike,
dispute, slowdown or stoppage actually pending or to the knowledge of WWG
threatened against or involving the Business; (c) there are no labor unions
representing or, to the knowledge of WWG, attempting to represent the employees
of TEAM, O-A and Pulse who became employees of the Company and the Subsidiaries;
(d) no claim or grievance nor any arbitration proceeding arising out of or under
any collective bargaining agreement is pending against WWG, TEAM, O-A, Pulse,
the Company or any Subsidiary and to the knowledge of WWG, no such claim or
grievance has been threatened; (e) no collective bargaining agreement is
currently being negotiated by any of WWG, TEAM, O-A, Pulse, the Company or any
Subsidiary; and (f) none of WWG, TEAM, O-A, Pulse, the Company or any Subsidiary
experienced any work stoppage or similar organized labor dispute during the last
three years. There is no legal action, suit, proceeding or claim pending
or, to the knowledge of WWG, threatened between WWG, TEAM, O-A, Pulse, the
Company or any Subsidiary, on the one hand, and any employees or former
employees of WWG, TEAM, O-A, Pulse, the Company or any Subsidiary, agents or
former agents of WWG, TEAM, O-A, Pulse, the Company or any Subsidiary, job
applicants or any association or group of any employees of WWG, TEAM, O-A,
Pulse, the Company or any Subsidiary, on the other hand.
Section 3.19 Employee
Benefit Matters.
3.19.1 List of Plans.
Schedule 3.8 to this Agreement lists
all employee benefit plans (as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA")) and all bonus,
incentive, deferred compensation, stock option, restricted stock, stock
appreciation rights, phantom stock rights, retiree medical or life insurance,
supplemental retirement, severance or other benefit plans, individual retirement
programs or arrangements, and all termination, severance or other Contracts,
whether covering one Person or more than one Person, and whether or not subject
to any of the provisions of ERISA, which are or have been maintained,
contributed to or sponsored by WWG, TEAM, O-A, Pulse, the Company, any
Subsidiary or any ERISA Affiliate (as defined in Section 3.19.3) for
the benefit of any employee of WWG, TEAM, O-A, Pulse, the Company or any
Subsidiary (each item listed on Schedule 3.8 being referred to herein
individually, as a "Plan" and collectively, as the
"Plans"). For
purposes of this Agreement, "foreign benefit plan" means each material plan,
program or agreement contributed to, sponsored or maintained by either the
Company or any ERISA Affiliate or any other Person that is maintained outside of
the United States, or that covers primarily employees residing or working
outside of the United States, and which would be treated as a Plan had it been a
material United States plan, program or agreement. WWG has delivered to
the Purchaser, to the extent applicable, a complete and accurate copy of: (a)
each written Plan and descriptions of any unwritten Plan (including all
amendments thereto whether or not such amendments are currently effective); (b)
each summary plan description and all summaries of material modifications
relating to a Plan; (c) each trust agreement or other funding arrangement with
respect to each Plan, including insurance contracts; (d) the most recently filed
IRS Form 5500 relating to each Plan; (e) the most recently received IRS opinion,
advisory or determination letter for each Plan; and (f) the three most recently
prepared actuarial reports (if applicable) and financial statements in
connection with each Plan. None of the Principals, WWG, TEAM, O-A, Pulse,
the Company or any Subsidiary has made any commitment, (i) to create or cause to
exist any Plan not set forth on Schedule 3.8 or (ii) to
modify, change or terminate any Plan.
28
3.19.2 Severance. None
of the Plans, nor, except as set forth on Schedule 3.19.2, any
employment agreement or other Contract to which WWG, TEAM, O-A, Pulse, the
Company or any Subsidiary is a party or bound, (a) provides for the payment of
or obligates WWG, TEAM, O-A, Pulse, the Company or any Subsidiary to pay
separation, severance, termination or similar-type benefits to any Person; or
(b) obligates WWG, TEAM, O-A, Pulse, the Company or any Subsidiary to pay
separation, severance, termination or similar-type benefits as a result of any
transaction contemplated by this Agreement or as a result of a "change in
control," within the meaning of such term under Section 280G of the Code, either
alone or in conjunction with any subsequent occurrence.
3.19.3
Multi-Employer
Plans. None of WWG, TEAM, O-A, Pulse, the Company, any Subsidiary
or any ERISA Affiliate has maintained, contributed to or participated in a
multi-employer plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA)
or a multiple employer plan subject to Sections 4063 and 4064 of ERISA, nor has
any obligations or liabilities, including withdrawal, reorganization or
successor liabilities, regarding any such plan. As used herein, the term "ERISA Affiliate" means any
Person that is or has been a member of a controlled group of organizations
(within the meaning of Sections 414(b), (c), (m) or (o) of the Code) of which
WWG, TEAM, O-A, Pulse, the Company or any Subsidiary is a member.
3.19.4 Welfare Benefit
Plans. Each of WWG, TEAM, O-A, Pulse, the Company or any Subsidiary
has expressly reserved the right, in all Plan documents relating to welfare
benefits provided to employees, former employees, officers, directors and other
participants and beneficiaries, to amend, modify or terminate at any time the
Plans which provide for welfare benefits, and WWG is not aware of any fact,
event or condition that could reasonably be expected to restrict or impair such
right. Except as required under Section 601 of ERISA, none of WWG, TEAM, O-A,
Pulse, the Company, any Subsidiary or any ERISA Affiliate has made any promises
or commitments to provide, and is not obligated to provide (i) medical benefits
(including without limitation through insurance) to retirees or former employees
of WWG, TEAM, O-A, Pulse, the Company, any Subsidiary or any ERISA Affiliate or
their respective dependants, or (ii) life insurance or other death benefits to
retired employees or former employees of WWG, TEAM, O-A, Pulse, the Company, any
Subsidiary or any ERISA Affiliate or their respective dependants.
3.19.5
Administrative
Compliance. Each Plan is now and has been operated in all material
respects in accordance with the requirements of its terms and with all
applicable Laws, including, without limitation, ERISA, the Health Insurance
Portability and Accountability Act of 1996 (as amended by the Health Information
Technology for Economic and Clinical Health Act) and the Code, including,
without limitation, all nondiscrimination and minimum coverage requirements of
Sections 401(a) and 410(b) thereof, the Age Discrimination in Employment Act,
Family and Medical Leave Act, the Americans with Disabilities Act, the Equal Pay
Act, Title VII of the Civil Rights Act of 1964, and the health care continuation
coverage provisions of the Consolidated Omnibus Budget Reconciliation Act of
1985, and the regulations and authorities published thereunder. Each of
WWG, TEAM, O-A, Pulse, the Company and any Subsidiary has performed all material
obligations required to be performed by it under, is not in any respect in
default under or in violation of, and WWG has no knowledge of any default or
violation by any Person under, any Plan. Except as set forth on Schedule 3.9, no legal action,
suit, audit, investigation or claim is pending or threatened with respect to any
Plan (other than claims for benefits in the ordinary course), and no fact, event
or condition exists that would be reasonably likely to provide a legal basis for
any such action, suit, audit, investigation or claim. All reports,
disclosures, notices and filings with respect to such Plans required to be made
to employees, participants, beneficiaries, alternate payees and any Governmental
or Regulatory Authority have been timely made or an extension has been timely
obtained. With respect to any insurance policy providing funding for benefits or
an investment alternative under any Plan, (i) no liability or loss shall be
incurred by the Company or any Subsidiary or any such Plan in the nature of a
retroactive rate adjustment, loss sharing arrangement or other liability or
loss, and (ii) no insurance company issuing any such policy is in receivership,
conservatorship, liquidation or similar proceeding and, to the knowledge of WWG,
no such proceedings with respect to any insurer are imminent.
29
3.19.6 Tax-Qualification.
Each Plan which is intended to be qualified under Sections 401(a) or 408(k) of
the Code is qualified under Sections 401(a) and 408(k) of the Code (and, if
applicable, complies with the requirements of Section 401(k) of the Code), and
has received a favorable opinion, advisory or determination letter from the IRS
that it is so qualified. Each trust established in connection with any
Plan which is intended to be exempt from federal income taxation under Section
501(a) of the Code is exempt under Section 501(a) of the Code; and no fact or
event has occurred or condition exists since the date of such opinion, advisory
or determination letter from the IRS which would be reasonably likely to
adversely affect the qualified status of any such Plan or the exempt status of
any such trust. Each Plan that is a foreign benefit plan which is intended to be
qualified with the appropriate Governmental or Regulatory Authority in the
relevant country has received a favorable determination that it is so qualified,
and each trust established in connection with such foreign benefit plan that is
intended to be exempt from taxation has received a favorable determination that
it is so exempt.
3.19.7
Funding; Excise
Taxes. There has been no prohibited transaction (within the meaning
of Section 406 of ERISA or Section 4975 of the Code) with respect to any Plan
subject to ERISA. None of WWG, TEAM, O-A, Pulse, the Company, any
Subsidiary or any ERISA Affiliate has incurred any liability for any excise tax
arising under Sections 4971, 4972, 4973, 4974, 4975, 4976, 4977, 4978, 4978B,
4979, 4979A, 4980, 4980B, 4980D or 4980E of the Code or any civil penalty
arising under Sections 409, 502(i) or 502(l) of ERISA, and no fact, event or
condition exists which could give rise to any such liability. None of WWG,
TEAM, O-A, Pulse, the Company or any Subsidiary nor any ERISA Affiliate has
incurred any liability under, arising out of or by operation of Section
302(c)(11) or Title IV of ERISA (other than liability for premiums to the
Pension Benefit Guaranty Corporation ("PBGC") arising in the ordinary
course), including, without limitation, any liability in connection with the
termination of any employee benefit plan subject to Title IV of ERISA (a "Title IV Plan"); and, no fact,
event or condition exists which could give rise to any such liability. No
complete or partial termination has occurred within the five years preceding the
date hereof with respect to any Plan maintained by WWG, TEAM, O-A, Pulse, the
Company, any Subsidiary or any ERISA Affiliate, and no reportable event (within
the meaning of Section 4043 of ERISA), notice of which has not been waived by
the PBGC, has occurred or is expected to occur with respect to any Plan
maintained by WWG, TEAM, O-A, Pulse, the Company, any Subsidiary or any ERISA
Affiliate. The transactions contemplated by this Agreement and the NT Conveyance
Document will not result in liability to WWG, TEAM, O-A, Pulse, the Company or
any Subsidiary or the Purchaser under Section 4069 of ERISA. No Title IV
Plan or Plan subject to Section 302 of ERISA maintained by WWG, TEAM, O-A,
Pulse, the Company, any Subsidiary or any ERISA Affiliate had an accumulated
funding deficiency (within the meaning of Section 302 of ERISA or Section 412 of
the Code), whether or not waived, as of the most recently ended plan year of
such Plan. None of the assets of WWG, TEAM, O-A, Pulse, the Company, any
Subsidiary or any ERISA Affiliate is the subject of any Lien arising under
Section 302(f) of ERISA or Section 412(n) of the Code; none of WWG, TEAM, O-A,
Pulse, the Company, any Subsidiary or any ERISA Affiliate has been required to
post any security under Section 307 of ERISA or Section 401(a) (29) of the Code
relating to any Plan; and no fact or event exists which could give rise to any
such Lien or requirement to post any such security. As of the Closing
Date, no Plan which is a Title IV Plan will have an "unfunded benefit liability"
(within the meaning of Section 4001(a)(18) of ERISA) and no Plan which is
subject to Section 302 of ERISA will have in "accumulated funding deficiency"
(within the meaning of Section 302(a)(2) of ERISA).
30
3.19.8
Tax
Deductions. All contributions, premiums or payments (including all
employer contributions and, if applicable, employee salary reduction
contributions) required to be made, paid or accrued with respect to any Plan
have been made, paid or accrued on or before their due dates, including
extensions thereof. All such contributions have been fully deducted or in
the case of the current year will be deducted for income tax purposes and no
such deduction has been challenged or disallowed by any Governmental or
Regulatory Authority, and no fact or event exists which could give rise to any
such challenge or disallowance.
3.19.9
409A. With
respect to each Plan (and any other arrangement involving the Company or each
Subsidiary) that is a nonqualified deferred compensation plan, within the
meaning of Section 409A of the Code (a "409A Plan"), no event has
occurred and no condition exists, that could subject anyone, including any
Person, to any tax, fine, penalty or other liability under Section 409A of the
Code ("409A
Liability"). None of the transactions contemplated by this
Agreement could, directly or indirectly, subject anyone or any Person to any
409A Liability. Each 409A Plan is and has been operated and administered
in good faith compliance with 409A of the Code, Treasury Notice 2005-1, the
Final Treasury Reg. Sections 1.409A-1 through 1.409A-6, and any subsequent
guidance issued thereunder.
Section 3.20 Interests
in Customers, Suppliers, Etc. Except as set forth on Schedule 3.20, none of the Principals,
nor to the knowledge of WWG (without making any inquiry of any member of the
Related Group, as hereinafter defined), any officer, director, or employee of
WWG, TEAM, O-A, Pulse, the Company or any Subsidiary immediately prior to the
Closing Date, any parent, brother, sister, child or spouse of any such officer,
director, key executive or employee of WWG, TEAM, O-A, Pulse, the Company or any
Subsidiary or the Principals (collectively, the "Related Group"), or any Person
controlled by anyone in the Related Group:
(i)
owns,
directly or indirectly, any interest in (excepting for ownership, directly or
indirectly, of less than 1/4 of 1% of the issued and outstanding shares of any
class of securities of a publicly held and traded company), or received or has
any right to receive payments from, or is an officer, director, employee, agent
or consultant of, any Person which is, or is engaged in business as, a
competitor, lessor, lessee, supplier, distributor, sales agent, customer or
client of WWG, TEAM, O-A, Pulse, the Company or any
Subsidiary;
31
(ii)
owns,
directly or indirectly (other than through the ownership of Membership
Interests), in whole or in part, any tangible or intangible property (including,
but not limited to Intellectual Property), that WWG, TEAM, O-A, Pulse, the
Company or any Subsidiary used in the conduct of the Business, other than
immaterial personal items owned and used by employees at their work stations;
or
(iii)
has any
cause of action or other claim whatsoever against, or owes any amount to, WWG,
TEAM, O-A, Pulse, the Company or any Subsidiary, except for claims in the
ordinary course of business such as for accrued vacation pay, accrued benefits
under employee benefit plans, and similar matters and agreements existing on the
date hereof.
Section 3.21 Bank
Accounts and Powers of Attorney. Set forth in Schedule 3.21 is an accurate and
complete list showing (a) the name and address of, and account information for,
each bank in which immediately prior to the transfer of the Business, WWG, TEAM,
O-A, Pulse, the Company or any Subsidiary had an account, credit line or safe
deposit box and the names of all Persons authorized to draw thereon or to have
access thereto, and (b) the names of all Persons, if any, holding powers of
attorney from WWG, TEAM, O-A, Pulse, the Company or any Subsidiary and a summary
statement of the terms thereof.
Section 3.22 Compensation
of Employees.
(a)
Schedule 3.22 is an accurate and
complete list showing: (a) the names and positions of all employees and
exclusive consultants who immediately prior to the transfer of the Business were
being compensated by WWG, TEAM, O-A, Pulse, the Company or any Subsidiary at an
annualized rate of $50,000 or more, together with a statement of the current
annual salary, and the annual salary, bonus and incentive compensation paid or
payable with respect to calendar years 2008 and 2009, and a statement of the
projected annual salary, bonus and incentive compensation payable with respect
to the calendar year ended December 31, 2010, and the material fringe benefits
of such employees and exclusive consultants not generally available to all
employees of WWG, TEAM, O-A, Pulse, the Company or any Subsidiary; (b) all bonus
and incentive compensation paid or payable (whether by agreement, custom or
understanding) to any employee of WWG, TEAM, O-A, Pulse, the Company or any
Subsidiary not listed in clause (a) above for services rendered or to be
rendered during calendar years 2008 and 2009; (c) the names of all retired
employees, if any, of WWG, TEAM, O-A, Pulse, the Company or any Subsidiary who
are receiving or entitled to receive any healthcare or life insurance benefits
or any payments from WWG, TEAM, O-A, Pulse, the Company or any Subsidiary not
covered by any pension plan to which WWG, TEAM, O-A, Pulse, the Company or any
Subsidiary is a party, their ages and current unfunded pension rate, if any; and
(d) a description of the current severance and vacation policy of WWG, TEAM,
O-A, Pulse, the Company or any Subsidiary. None of WWG, TEAM, O-A, Pulse,
the Company or any Subsidiary has, because of past practices or previous
commitments with respect to its employees, established any rights on the part of
any of its employees to additional compensation with respect to any period after
the Closing Date (other than wage increases in the ordinary course of
business). Each of WWG, TEAM, O-A, Pulse, the Company or any Subsidiary
have properly classified and compensated all employees and consultants in
accordance with all applicable Laws and Order of any Governmental and Regulatory
Authority.
32
(b)
No Principal has agreed or made any written or verbal
commitment to give any employee of WWG, TEAM, O-A, Pulse, the Company or any
Subsidiary (or any family member or any affiliate of the employee of WWG, TEAM,
O-A, Pulse, the Company or any Subsidiary) any portion or share of the Purchase
Price in the form of a bonus, gift, award, or any similar type of
remuneration. The Principals agree that, from and after the date
hereof, no portion or proceeds of the Purchase Price shall be used to compensate
or give to any employee of WWG, TEAM, O-A, Pulse, the Company or any Subsidiary
(or any family member of any employee of WWG, TEAM, O-A, Pulse, the Company or
any Subsidiary) a bonus, gift, award, or any similar type of
remuneration.
Section 3.23 No
Changes Since the Balance Sheet Date. From the Balance Sheet
Date through the date hereof, except as specifically stated on Schedule 3.23, none of WWG, TEAM, O-A,
Pulse, the Company or any Subsidiary (i) incurred any liability or obligation of
any nature (whether accrued, absolute, contingent or otherwise), except in the
ordinary course of business, (ii) permitted any of its assets to be subjected to
any Lien, (iii) sold, transferred or otherwise disposed of any assets
except in the ordinary course of business, (iv) made any capital
expenditure or commitment therefor which individually or in the aggregate
exceeded $25,000; (v) declared or made any distributions or dividend payments on
any of their respective equity, or redeemed, purchased or otherwise acquired (or
committed to do so) any of their respective equity, or any option, warrant or
other right to purchase or acquire any of their respective equity,
(vi) made any bonus or profit sharing distribution, (vii) increased or
prepaid its indebtedness for borrowed money, except current borrowings under
credit lines listed on Schedule 3.8, or made any loan to any
Person other than to any employee for normal travel and expense advances, (viii)
wrote down the value of any work-in-process, or wrote off as uncollectible any
notes or accounts receivable, except write-downs and write-offs in the ordinary
course of business, none of which individually or in the aggregate, were
material to WWG, TEAM, O-A, Pulse, the Company or any Subsidiary, (ix) granted
any increase in the rate of wages, salaries, bonuses or other remuneration of
any employee who, whether as a result of such increase or prior thereto,
received aggregate compensation from WWG, TEAM, O-A, Pulse, the Company or any
Subsidiary at an annual rate of $50,000 or more, or except in the ordinary
course of business to any other employees, (x) entered into any employment or
exclusive consulting agreement which is not cancelable by WWG, TEAM, O-A, Pulse,
the Company or any Subsidiary (and will not be cancelable by the Company or any
Subsidiary) without penalty or other financial obligation within 30 days, (xi)
canceled or waived any claims or rights of material value, (xii) made any change
in any method of accounting procedures, (xiii) otherwise conducted the
business of WWG, TEAM, O-A, Pulse, the Company or any Subsidiary or entered into
any transaction, except in the usual and ordinary manner and in the ordinary
course of its business, (xiv) amended or terminated any agreement which is
material to their businesses, (xv) renewed, extended or modified any lease of
real property or any lease of personal property, except in the ordinary course
of business, or (xvi) agreed, whether or not in writing, to do any of the
actions set forth in any of the above clauses.
33
Section 3.24
Corporate
Controls. To the knowledge of WWG, no officer, authorized
agent, employee, consultant or any other Person while acting on behalf of WWG,
TEAM, O-A, Pulse, the Company or any Subsidiary, has, directly or indirectly:
used any corporate fund for unlawful contributions, gifts, or other unlawful
expenses relating to political activity; made any unlawful payment to foreign or
domestic government officials or employees or to foreign or domestic political
parties or campaigns from corporate funds; established or maintained any
unlawful or unrecorded fund of corporate monies or other assets; made any false
or fictitious entry on its books or records; participated in any racketeering
activity; or made any bribe, rebate, payoff, influence payment, kickback, or
other unlawful payment, or other payment of a similar or comparable nature, to
any Person, private or public, regardless of form, whether in money, property,
or services, to obtain favorable treatment in securing business or to obtain
special concessions, or to pay for favorable treatment for business secured or
for special concessions already obtained, and none of WWG, TEAM, O-A, Pulse, the
Company or any Subsidiary has participated in any illegal boycott or other
similar illegal practices affecting any of its actual or potential
customers.
Section 3.25 Brokers.
Except as set forth on Schedule 3.25, no broker,
finder, agent or similar intermediary has acted on behalf of WWG, any Principal
or the Company or any Subsidiary in connection with this Agreement or the
transactions contemplated hereby, and no brokerage commissions, finder's fees,
consulting fees or similar fees or commissions are payable by the Company or any
Subsidiary or any Principal in connection therewith based on any agreement,
arrangement or understanding with any of them.
Section 3.26 Repayment
of Loans. All (i) intercompany indebtedness and (ii) indebtedness
of the Principals to any of WWG, TEAM, O-A, Pulse, the Company or any Subsidiary
has been repaid in full, other than routine travel expense advances in the
ordinary course of business and consistent in amount with past
practice.
Section 3.27 Copies of
Documents. WWG has caused to be made available for inspection
and copying by the Purchaser and its advisers, true, complete and correct copies
of all documents referred to in this Article III or in any Schedule.
Summaries of all oral contracts contained on Schedule 3.8 are complete and accurate
in all material respects.
ARTICLE IV
REPRESENTATIONS OF THE
PURCHASER
The Purchaser represents, warrants and
agrees to and with WWG and the Principals as follows:
Section 4.1
Existence
and Good Standing. The Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware with full corporate power and authority to own its property and to
carry on its business all as and in the places where such properties are now
owned or operated or such business is now being conducted.
Section 4.2
Execution
and Validity of Agreement. The Purchaser has the full
corporate power and authority to make, execute, deliver and perform this
Agreement and the transactions contemplated hereby. The execution and
delivery of this Agreement by the Purchaser and the consummation of the
transactions contemplated hereby have been duly authorized by all required
corporate action on behalf of the Purchaser. This Agreement has been duly
and validly executed and delivered by the Purchaser and, assuming due
authorization, execution and delivery by the Principals and WWG, constitutes
legal, valid and binding obligations of the Purchaser, enforceable against each
of them in accordance with its terms.
34
Section 4.3
Litigation.
There is no action, suit, proceeding at law or in equity by any Person, or
any arbitration or any administrative or other proceeding by or before (or to
the knowledge of the Purchaser, any investigation by), any Governmental or
Regulatory Authority pending or, to the knowledge of the Purchaser, threatened
against the Purchaser or any of their respective properties or rights with
respect to this Agreement. The Purchaser is not subject to any Order
entered in any lawsuit or proceeding with respect to this Agreement or the
transactions contemplated hereby.
Section 4.4
Non-Contravention;
Approvals and Consents. The execution, delivery and
performance by the Purchaser of its obligations hereunder and the consummation
of the transactions contemplated hereby will not (a) violate, conflict with or
result in the breach of any provision of the certificate of incorporation and
bylaws of the Purchaser, (b) result in the violation by the Purchaser of any
Laws or Orders of any Governmental or Regulatory Authority applicable to the
Purchaser or any of its assets or properties, or (c) result in a violation or
breach of, constitute (with or without notice or lapse of time or both) a
default under, or require the Purchaser to obtain any consent, approval or
action of, make any filing with or give any notice to, or result in or give to
any Person any right of payment or reimbursement, termination, cancellation,
modification or acceleration of, or, except for such Liens as may be created in
connection with an MDC Financing (as defined in Section 6.1 hereof),
result in the creation or imposition of any Lien upon any of the respective
assets or properties of the Purchaser, under any of the terms, conditions or
provisions of any Contract to which the Purchaser is a party or by which the
Purchaser or any of its assets or properties are bound. No consent, approval or
action of, filing with or notice to any Governmental or Regulatory Authority or
other Person is necessary or required under any of the terms, conditions or
provisions of any Law or Order of any Governmental or Regulatory Authority or
any Contract to which the Purchaser is a party or by which the Purchaser or any
of its assets or properties are bound for the execution and delivery of this
Agreement by the Purchaser, the performance by the Purchaser of its obligations
hereunder or the consummation by the Purchaser of the transactions contemplated
hereby.
Section 4.5
Brokers.
No broker, finder, agent or similar intermediary has acted on behalf of
the Purchaser in connection with this Agreement or the transactions contemplated
hereby, and no brokerage commissions, finder's fees or similar fees or
commissions are payable by the Purchaser in connection therewith based on any
agreement, arrangement or understanding with either of them.
35
ARTICLE V
ACTIONS AT CLOSING BY WWG
AND THE PRINCIPALS
Simultaneously
herewith:
Section 5.1
Authorization
Documents; Good Standing Certificates.
(a)
WWG shall have delivered to the Purchaser: (a) a copy of the resolutions of the
managing member and the members of WWG, authorizing the execution, delivery and
performance of this Agreement and the transactions contemplated hereby,
certified by one of its officers; (b) a copy of the Company's Certificate of
Formation, including all amendments, certified by the Delaware Secretary of
State; (c) a certificate as of a recent date from the Delaware Secretary of
State that the Company is in good standing in such state; and (d) a copy of the
Company's limited liability company operating agreement, including all
amendments, certified by an officer of the Company.
(b)
WWG shall have delivered to the Purchaser with respect to each Subsidiary: (a) a
copy of each Subsidiary's organizational documents, including all amendments,
certified by its jurisdiction of organization; (b) a certificate from the
appropriate authority of each jurisdiction in which each Subsidiary was
organized that such Subsidiary in good standing (in each case together with any
applicable tax status certificate) in such jurisdiction; and (c) a certificate
from the appropriate authority of each jurisdiction in which each Subsidiary is
qualified as a foreign company to do business to the effect that the Subsidiary
is in good standing in such jurisdiction (in each case together with any
applicable tax status certificate).
(c) WWG
shall have delivered to the Purchaser a certificate as of a recent date from the
Massachusetts Secretary of State that TEAM is in good standing in such
state.
(d)
WWG shall have delivered to the Purchaser a copy of the resolutions of the sole
shareholder and the Board of Directors of TEAM, authorizing the execution,
delivery and performance of the NT Conveyance Document and the transactions
contemplated thereby.
(e) WWG
shall have delivered to the Purchaser a copy of the resolutions of the members
and the Managing Member of WWG2 authorizing execution and delivery of the
Operating Agreement.
Section 5.2 Required
Approvals and Consents. WWG shall have obtained or given, at
no expense to the Purchaser or MDC, and there shall not have been withdrawn or
modified, any consents or approvals or other actions listed on Schedule 3.9 hereof (including
without limitation, obtaining all such consents, approvals and/or waivers
required under the Contracts listed on Schedule 3.8). Each such consent
or approval shall be in form satisfactory to counsel for the
Purchaser.
Section 5.3
Operating
Agreement. WWG and WWG2 shall have entered into the Operating
Agreement.
Section 5.4 Employment
Agreements. Each of ▇▇▇▇▇▇▇, ▇'▇▇▇▇▇, Groth, Graham, ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇
shall have entered into Employment Agreements with the Company substantially in
the form and to the effect of Exhibits ▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇-▇, B-8 and B-9, respectively, attached
hereto.
36
Section 5.5
Non-Competition/Non-Solicitation/Non-Servicing
Agreements. The Principals shall have entered into
Non-Competition/Non-Solicitation/Non-Servicing Agreements with the Purchaser and
the Company in the form and to the effect of ▇▇▇▇▇▇▇▇ ▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇-▇ and C-6, respectively, attached
hereto.
Section 5.6 Conveyance
Document. WWG shall have caused
TEAM to enter into the NT Conveyance Document.
Section 5.7
Bank
Pay-off Letter; Release of Liens. WWG shall have delivered to the
Purchaser pay-off letters and lien discharges (or agreements therefor)
reasonably satisfactory to the Purchaser from PNC Bank, National Association, as
lender to WWG, TEAM, O-A, Pulse, the Company or any Subsidiary, and/or in
connection with any such entity's pre-closing outstanding indebtedness and line
of credit.
Section 5.8
▇▇▇▇▇
▇▇▇▇▇▇ Side Letter. WWG and ▇▇▇▇▇ ▇▇▇▇▇▇
shall have entered into that certain letter agreement (the "Side Letter") as referenced in
the employment agreement by and between ▇▇▇▇▇ ▇▇▇▇▇▇ and the Company referred to
in Section 5.4
above.
Section 5.9
Proceedings.
All proceedings to be taken in connection with the transactions contemplated by
this Agreement and all documents incident thereto must be reasonably
satisfactory in form and substance to the Purchaser and its counsel, and the
Purchaser shall have received copies of all such documents and other evidences
as it or its counsel reasonably requested in order to establish the consummation
of such transactions and the taking of all proceedings in connection
therewith.
ARTICLE VI
OTHER
AGREEMENTS
Section 6.1
Management
of the Company.
6.1.1 MDC Financing.
Notwithstanding anything to the contrary contained in this Agreement, in
consideration for the payment of the Purchase Price under Section 2.1 hereof
and for other good and valuable consideration, the parties hereto hereby (i)
agree that MDC and/or one of its affiliates, in connection with its or any of
its affiliates' current or future credit facilities or financing arrangements,
shall be entitled to: (w) pledge or grant a security interest in or otherwise
have a lien placed upon the Purchaser's Membership Interests; (x) pledge or
grant a security interest in or to otherwise have a lien placed upon the assets
and properties of the Company and/or its Subsidiaries; (y) assign all of its
rights, benefit, title and interest in the Company and distributions therefrom,
including, without limitation, all rights and claims pursuant to and under the
Call and/or Sale Request (as such terms are defined in the Operating Agreement)
to or to an agent or representative on behalf of, its bank or lender or group of
banks or group of lenders (as applicable and collectively, the "Lender"); and (z) have the
Company and/or its Subsidiaries provide guarantees and such other ancillary
security and related documentation as reasonably required by the Lender from
time to time (the items in (w), (x), (y) and (z) being collectively referred to
as an "MDC Financing");
and (ii) consent unconditionally to (x) the granting of all security and the
execution of all documents required in connection with an MDC Financing and the
enforcement thereof, where applicable, by the Lender; and (y) any transaction by
which the Lender becomes the absolute legal and beneficial owner of any
Membership Interests which have been pledged or assigned to it.
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6.1.2 Effect of Events During
Period Membership Interests Are Outstanding. The parties hereto
understand and agree that under the terms of the Employment Agreements referred
to in Section
5.4, each of the Principals may be terminated for "cause" or "without
cause" (as such terms are defined in such Employment Agreement); provided, however, the parties
hereto acknowledge and agree that no employee (other than ▇▇▇▇▇▇▇ or ▇▇▇▇▇) of
the Company or any Subsidiary shall be terminated "without cause" without the
prior written consent of ▇▇▇▇▇▇▇; provided further, however, in the event
that a majority of the remaining Principals approve in writing of such
termination of employment, the prior written consent of ▇▇▇▇▇▇▇ shall not be
required in connection with such termination of employment. In addition,
the parties hereto acknowledge and agree that in the event ▇▇▇▇▇▇▇'▇ employment
with the Company and/or NT is terminated "without cause", a majority of the
remaining Principals shall have the right to (and shall) within 10 days
following such termination of employment, appoint ▇▇▇▇▇▇▇'▇ replacement as Chief
Executive Officer and President of the Company and/or NT, as the case may be,
subject to the reasonable approval and consent of MDC. In the event that a
majority of the remaining Principals do not (within 10 days following such
termination of employment) appoint ▇▇▇▇▇▇▇'▇ replacement, MDC shall have the
sole right to appoint a new Chief Executive Officer of the Company and/or NT, as
the case may be. Notwithstanding the foregoing, in the event any Principal
ceases to be employed by the Company, regardless of the reason therefor, such
event shall not affect WWG's right to receive the Purchase Price under this
Agreement. Each of the parties hereto agrees that if (a) any Principal
ceases to be an employee of the Company or any Subsidiary during the period
commencing as of Closing Date through the end of the last year included in the
Measuring Period (as defined in the Operating Agreement) with respect to the
exercise of a Call or Sale Request (as such terms are defined in the Operating
Agreement) resulting in WWG no longer owing any Class B and Class C Units,
regardless of the reason therefor, or (b) there are changes in the composition
of the Board of Managers of the Company or any Subsidiary, no party to this
Agreement or any Person claiming a right through such party shall have the right
to make a claim that such cessation of employment or change in the composition
of the Board of Managers of the Company or any Subsidiary (x) constitutes a
breach by the Purchaser or any of its affiliates of this Agreement, (y) resulted
in an adverse effect on the Purchase Price hereunder forming the basis for a
claim against the Purchaser or any of its affiliates, or (z) constitutes an
event forming the basis for such party to dispute any calculation required to be
made pursuant to the accounting procedures set forth in Section 2.1.4
hereof.
Section 6.2
Tax
Matters.
6.2.1
Section
754 Election. The Purchaser and WWG agree that a timely election
under Section 754 of the Code will be made by the Company on its federal
partnership income tax return (Form 1065) for the Tax year of the Company that
ends on the Closing Date. The Purchaser shall prepare an allocation of the
Purchase Price (and of other capitalized costs) among the assets of the Company
and the Subsidiaries. The Company, the Purchaser, each member of the
Company and the Principals shall report, act and file all tax returns in all
respects and for all purposes consistent with such allocation prepared by the
Purchaser and agreed to by WWG. WWG and/or the Principals shall timely and
properly prepare, execute, file and deliver all such documents, forms and other
information as the Purchaser may reasonably request to prepare such
allocation. None of the Company, any member of the Company, or any of the
Principals shall take any position (whether in audits, tax returns, or
otherwise) that is inconsistent with such allocation unless required to do so by
applicable law.
38
6.2.2
Tax
Returns. The Company shall prepare or cause to be prepared and file
or cause to be filed all Tax returns for the Company except as otherwise
specifically provided herein or in the Operating Agreement. The Company
shall permit the Purchaser to review and comment on each such Tax return
described in the preceding sentence prior to filing.
6.2.3 Tax
Cooperation. The Purchaser, WWG and the Principals shall cooperate
fully, and each shall cause the Company to cooperate fully, as and to the extent
reasonably requested by the other party, in connection with the filing of Tax
returns pursuant to Section 6.2.2 or any
other Tax returns relating to the operations of WWG or the Company, and any
audit, litigation or other proceeding with respect to Taxes. Such
cooperation shall include WWG's retention and (upon the other party's request)
the provision of records and information which are reasonably relevant to any
such audit, litigation or other proceeding and making employees available on a
mutually convenient basis to provide additional information and explanation of
any material provided hereunder. The Purchaser and WWG agree to, and each
agree to cause the Company to, (A) retain all books and records with respect to
Tax matters pertinent to WWG and Company relating to any taxable period
beginning before the Closing Date until the expiration of the statute of
limitations (and, to the extent notified by the Purchaser, any extensions
thereof) of the respective taxable periods, and to abide by all record retention
agreements entered into with any taxing authority, and (B) give the other party
reasonable written notice prior to transferring, destroying or discarding any
such books and records and, if the other party so requests, WWG or the
Purchaser, as the case may be, shall allow the other party to take possession of
such books and records.
6.2.4 Tax Liability.
To the extent that any of the transactions contemplated by the NT Conveyance
Document give rise to sales and/or use tax liability or other transfer,
purchase, stamp or recordation documentary tax and fees (collectively, "Sales Taxes"), the Purchaser
shall promptly pay such Sales Taxes to the appropriate tax authorities.
WWG shall cause the Company to deliver to the Purchaser completed returns in
respect of any Sales Taxes required to be filed with respect to the transactions
contemplated herein (regardless of whether such returns are informational or
show liability for Sales Taxes) for filing with the appropriate taxing
authority. The Purchaser and WWG hereby waive compliance with the bulk
sales laws of any applicable jurisdiction, and WWG and the Principals hereby
agree to indemnify and hold harmless the Purchaser and its Affiliates from and
against any claims arising out of or due to the failure to comply with such bulk
sales laws.
39
Section 6.3
Equity
Securities of WWG. As long as WWG
beneficially owns any equity interests in the Company, no Principal shall sell
or in any other way transfer, assign, distribute, pledge, encumber or otherwise
dispose of (a "Transfer") any of the equity
securities of WWG or permit WWG to issue any additional equity securities (the
"WWG Interests"); provided, however, (i) WWG may
issue membership interests to ▇▇▇▇▇ ▇▇▇▇▇▇ pursuant to the terms and conditions
of that certain letter agreement attached hereto as Exhibit D, and (ii) each
Principal (x) may Transfer WWG Interests to another Principal or (y) for estate
planning purposes, may Transfer WWG Interests to a Family Member (as hereinafter
defined) as long as the total equity securities and voting power retained in the
aggregate by such Principal (exclusive of equity securities owned by Family
Members) in WWG constitutes a majority of the equity securities and voting power
in WWG, and such Family Member agrees in writing to the Purchaser to be bound by
the provisions of this Section 6.3 as if it
were a member of WWG. Without limiting the foregoing, in the event that at
any time on or after the date of this Agreement a holder of equity securities of
WWG Transfers some or all of such equity securities, then WWG shall upon
receiving notice of such Transfer promptly provide the Purchaser with written
notice of such Transfer. To the extent known, such notice shall specify
the names and addresses of the transferee and transferor of such equity
securities, the number and type or class of equity securities Transferred, and
all of the other material terms and conditions of such Transfer. As used
herein, the term "Family
Member" of any Principal shall mean (i) the spouse and lineal descendants
of such Principal, (ii) the spouses of any such descendants, (ii) the legal
representatives of any Person that falls within clause (i) or (ii) hereof, and
(iii) the trustee of any trust of which any of the Persons falling with clause
(i) or (ii) shall be the only beneficiaries entitled to the income or
principal.
Section 6.4
Change of
Name. At the Closing, the Company shall execute appropriate documents to
change (x) TEAM’s name to a name dissimilar to "TEAM Enterprises", (y) O-A’s
name to a name dissimilar to "Outer-Active" and (z) Pulse’s name to a name
dissimilar to "Pulse", and promptly thereafter shall file any necessary
documents to reflect such name changes with the appropriate Secretary of State
and the appropriate authorities in the other states in which each such entity is
qualified to do business.
Section 6.5
▇▇▇▇▇
▇▇▇▇▇▇ Side Letter. WWG covenants and agrees to use its best efforts
following the Closing to consummate the transactions contemplated by the Side
Letter in accordance with the terms and conditions thereof.
ARTICLE VII
SURVIVAL;
INDEMNITY
Section 7.1
Survival.
Notwithstanding any right of any party hereto fully to investigate the
affairs of any other party, and notwithstanding any knowledge of facts
determined or determinable pursuant to such investigation or right of
investigation, each party hereto shall have the right to rely fully upon the
representations, warranties, covenants and agreements of the other parties
contained in this Agreement and the Schedules, if any, furnished by any other
party pursuant to this Agreement, or in any certificate or document delivered at
the Closing by any other party. Subject to the limitations set forth in
Section 7.6,
the respective representations, warranties, covenants and agreements of the WWG,
the Principals and the Purchaser contained in this Agreement shall survive the
Closing.
40
Section 7.2
Obligation
of WWG and the Principals to Indemnify.
7.2.1 General
Indemnity. Subject to the limitations contained in Sections 7.6.1 and
7.6.2, WWG and
the Principals hereby agree, jointly and severally, to indemnify the Purchaser
and its affiliates, stockholders, officers, directors, employees, agents,
representatives and successors, permitted assignees of the Purchaser and their
affiliates (individually, a "Purchaser Indemnified Party"
and collectively, the "Purchaser Indemnified
Parties") against, and to protect, save and keep harmless the Purchaser
Indemnified Parties from, and to pay on behalf of or reimburse the Purchaser
Indemnified Parties as and when incurred for, any and all liabilities (including
liabilities for Taxes), obligations, losses, damages, penalties, demands,
claims, actions, suits, judgments, settlements, penalties, interest,
out-of-pocket costs, expenses and disbursements (including reasonable costs of
investigation, and reasonable attorneys’, accountants' and expert witnesses'
fees) of whatever kind and nature (collectively, "Losses"), that may be imposed
on or incurred by any Purchaser Indemnified Party as a consequence of, in
connection with, incident to, resulting from or arising out of or in any way
related to or by virtue of: (a) any misrepresentation, inaccuracy or breach of
any warranty or representation contained in Article III.B hereof or in any
certificate delivered by WWG or the Principals at the Closing; (b) any action,
demand, proceeding, investigation or claim by any third party (including any
Governmental or Regulatory Authority) against or affecting any Purchaser
Indemnified Party which may give rise to or evidence the existence of or relate
to a misrepresentation or breach of any of the representations and warranties of
WWG or the Principals contained in Article III.B hereof or in any certificate
delivered by WWG or the Principals at the Closing; (c) any breach or failure by
WWG or the Principals to comply with, perform or discharge any obligation,
agreement or covenant by WWG or the Principals contained in this Agreement; (d)
any liability or obligation or any assertion against any Purchaser Indemnified
Party, arising out of or relating, directly or indirectly, to any Excluded Asset
or any Retained Liability (as such terms are defined in the NT Conveyance
Document) or other liability arising, in whole or in part, out of the conduct of
the business of WWG, TEAM, O-A, Pulse, the Company or any Subsidiary prior to
the Closing except for the Assumed Liabilities (as such term is defined in the
NT Conveyance Document); (e) any litigation or claim disclosed on Schedule 3.10 to this
Agreement; (f) any liability or obligation arising out of or relating, directly
or indirectly, to the classification of any individual performing services for
any of WWG, TEAM, NT, O-A or Pulse (i) as an independent contractor, (ii) as a
freelancer, (iii) as a consultant or (iv) in any other capacity other than as an
employee; (g) any liability or obligation arising out of or relating, directly
or indirectly, to any violation by WWG, TEAM, NT, O-A or Pulse, on or prior to
the Closing, of the Fair Labor Standards Act or any similar state or
local wage and hour Law, Order, ordinance or regulation; and (h) the
failure of the TEAM, the Company or any Subsidiary to qualify to do business in
any applicable jurisdiction in the United States.
7.2.2
Special
Indemnity. Subject to the limitations contained in Sections 7.6.1 and
7.6.2, each of
the Principals hereby severally agrees to indemnify the Purchaser Indemnified
Parties against, and to protect, save and keep harmless the Purchaser
Indemnified Parties from, and to assume liability for, the payment of all Losses
that may be imposed on or incurred by any Purchaser Indemnified Party as a
consequence of or in connection with, incident to, resulting from or arising out
of or in any way related to or by virtue of: (a) any misrepresentation,
inaccuracy or breach of a representation or warranty by such Principal contained
in Article III.A hereof; or (b) any action, demand, proceeding, investigation or
claim by any third party (including any Governmental or Regulatory Authority)
against or affecting the Purchaser Indemnified Party which may give rise to or
evidence the existence of or relate to a misrepresentation or breach of any of
the representations and warranties of such Principal contained in Article III.A
hereof or in any certificate delivered by such Principal at the
Closing. Any claim for indemnity made under this Section 7.2.2 shall
not be construed as a claim under Section 7.2.1 hereof
even if the Purchaser Indemnified Party could have made a claim under Section 7.2.1 hereof
in respect of the same matters.
41
7.2.3 "Losses". The
term "Losses" as used in
this Article VII is not limited to matters asserted by third parties against any
Purchaser Indemnified Party but includes Losses incurred or sustained by a
Purchaser Indemnified Party in the absence of Third Party Claims (as defined in
Section 7.4.2
hereof).
Section 7.3 Obligation
of the Purchaser to Indemnify. Subject to the
limitations set forth in Section 7.6.3 hereof,
the Purchaser hereby agrees to indemnify WWG and the Principals (individually a
"Company Indemnified
Party" and collectively, the "Company Indemnified Parties")
against, and to protect, save and keep harmless the Company Indemnified
Parties from, and to pay on behalf of or reimburse the Company Indemnified
Parties as and when incurred for, any and all Losses that may be imposed on or
incurred by the Company Indemnified Parties as a consequence of, in connection
with, incident to, resulting from or arising out of or in any way related to or
by virtue of: (a) any misrepresentation, inaccuracy or breach of any warranty or
representation of the Purchaser contained in Article IV hereof or in any
certificate delivered by the Purchaser at the Closing; or (b) any action,
demand, proceeding, investigation or claim by any third party (including any
Governmental or Regulatory Authority) against or affecting any Company
Indemnified Party which may give rise to or evidence the existence of or relate
to a misrepresentation or breach of any of the representations and warranties of
the Purchaser contained in Article IV hereof or in any certificate delivered by
the Purchaser at the Closing; or (c) any breach or failure by the Purchaser to
comply with, perform or discharge any obligation, agreement or covenant by the
Purchaser contained in this Agreement.
Section 7.4 Indemnification
Procedures.
7.4.1 Non-Third Party
Claims.
(a) In
the event that any Person entitled to indemnification under this Agreement (an
"Indemnified Party")
asserts a claim for indemnification which does not involve a Third Party Claim
(as defined in Section
7.4.2) (a "Non-Third
Party Claim"), against which a Person is required to provide
indemnification under this Agreement (an "Indemnifying Party"), the
Indemnified Party shall give written notice to the Indemnifying Party (the
"Non-Third Party Claim
Notice"), which Non-Third Party Claim Notice shall (i) describe the claim
in reasonable detail, and (ii) indicate the amount (estimated, if necessary, and
to the extent feasible) of the Losses that have been or may be suffered by the
Indemnified Party.
42
(b) The
Indemnifying Party may acknowledge and agree by written notice (the "Non-Third Party Acknowledgement of
Liability") to the Indemnified Party to satisfy the Non-Third Party Claim
within 30 days of receipt of the Non-Third Party Claim Notice. In the
event that the Indemnifying Party disputes the Non-Third Party Claim, the
Indemnifying Party shall provide written notice of such dispute (the "Non-Third Party Dispute
Notice") to the Indemnified Party within 30 days of receipt of the
Non-Third Party Claim Notice (the "Non-Third Party Dispute
Period"), setting forth a reasonable basis of such dispute. In
the event that the Indemnifying Party shall fail to deliver the Non-Third Party
Acknowledgement of Liability or Non-Third Party Dispute Notice within the
Non-Third Party Dispute Period, the Indemnifying Party shall be deemed to have
acknowledged and agreed to pay the Non-Third Party Claim in full and to have
waived any right to dispute the Non-Third Party Claim. Once the
Indemnifying Party has acknowledged and agreed to pay any Non-Third Party Claim
pursuant to this Section 7.4.1, or
once any dispute under this Section 7.4.1 has
been finally resolved in favor of indemnification by a court or other tribunal
of competent jurisdiction, subject to the provisions of Section 7.6.1, the
Indemnifying Party shall pay the amount of such Non-Third Party Claim to the
Indemnified Party within 10 days of the date of acknowledgement or resolution,
as the case may be, to such account and in such manner as is designated in
writing by the Indemnified Party.
7.4.2 Third-Party
Claims.
(a) In
the event that any Indemnified Party asserts a claim for indemnification or
receives notice of the assertion of any claim or of the commencement of any
action or proceeding by any Person who is not a party to this Agreement or an
affiliate of a party to this Agreement in respect of which such Indemnified
Party is entitled to indemnification by an Indemnifying Party under this
Agreement (a "Third Party
Claim"), the Indemnified Party shall give written notice to the
Indemnifying Party (the "Third
Party Claims Notice") within 20 days after asserting or learning of such
Third Party Claim (or within such shorter time as may be necessary to give the
Indemnifying Party a reasonable opportunity to respond to such claim), together
with a statement specifying the basis of such Third Party Claim. The
Third Party Claim Notice shall (i) describe the claim in reasonable detail, and
(ii) indicate the amount (estimated, if necessary, and to the extent feasible)
of the Losses that have been or may be suffered by the Indemnified Party. The
Indemnifying Party must provide written notice to the Indemnified Party that it
is either (i) assuming responsibility for the Third Party Claim or (ii)
disputing the claim for indemnification against it (the "Indemnification
Notice"). The Indemnification Notice must be provided by the
Indemnifying Party to the Indemnified Party within 15 days after receipt of the
Third Party Claims Notice or within such shorter time as may be necessary to
give the Indemnified Party a reasonable opportunity to respond to such Third
Party Claim (the "Indemnification Notice
Period").
(b) If
the Indemnifying Party provides an Indemnification Notice to the Indemnified
Party within the Indemnification Notice Period that it assumes responsibility
for the Third Party Claim, the Indemnifying Party shall conduct at its expense
the defense against such Third Party Claim in its own name, or if necessary in
the name of the Indemnified Party. The Defense Notice shall specify
the counsel it will appoint to defend such claim ("Defense Counsel") provided, however, that the
Indemnified Party shall have the right to approve the Defense Counsel, which
approval shall not be unreasonably withheld or delayed. In the event
that the Indemnifying Party fails to give the Indemnification Notice within the
Indemnification Notice Period, the Indemnified Party shall have the right to
conduct the defense and to compromise and settle such Third Party Claim without
the prior consent of the Indemnifying Party and subject to the provisions of
Section 7.6.1,
the Indemnifying Party will be liable for all costs, expenses, settlement
amounts or other Losses paid or incurred in connection therewith.
43
(c) In
the event that the Indemnifying Party provides in the Indemnification Notice
that it disputes the claim for indemnification against it, the Indemnified Party
shall have the right to conduct the defense and to compromise and settle such
Third Party Claim, without the prior consent of the Indemnifying Party. Once
such dispute has been finally resolved in favor of indemnification by a court or
other tribunal of competent jurisdiction or by mutual agreement of the
Indemnified Party and Indemnifying Party, subject to the provisions of Section 7.6.1, the
Indemnifying Party shall within 10 days of the date of such resolution or
agreement, pay to the Indemnified Party all Losses paid or incurred by the
Indemnified Party in connection therewith.
(d) In
the event that the Indemnifying Party delivers an Indemnification Notice
pursuant to which it elects to conduct the defense of the Third Party Claim, the
Indemnifying Party shall be entitled to have the exclusive control over the
defense of the Third Party Claim and the Indemnified Party will cooperate in
good faith with and make available to the Indemnifying Party such assistance and
materials as it may reasonably request, all at the expense of the Indemnifying
Party. The Indemnified Party shall have the right at its expense,
which shall not be reimbursable by the Indemnifying Party, to participate in the
defense assisted by counsel of its own choosing. The Indemnifying
Party will not settle the Third Party Claim or cease to defend against any Third
Party Claim as to which it has delivered an Indemnification Notice (as to which
it has assumed responsibility for the Third Party Claim), without the prior
written consent of the Indemnified Party, which consent will not be unreasonably
withheld or delayed; provided, however, such consent
may be withheld for any reason if, as a result of such settlement or cessation
of defense, (i) injunctive relief or specific performance would be imposed
against the Indemnified Party, or (ii) such settlement or cessation would lead
to liability or create any financial or other obligation on the part of the
Indemnified Party for which the Indemnified Party is not entitled to
indemnification hereunder.
(e) If
an Indemnified Party refuses to consent to a bona fide offer of settlement which
the Indemnifying Party wishes to accept, which provides for a full release of
the Indemnified Party and its affiliates relating to the Third Party Claims
underlying the offer of settlement and solely for a monetary payment, the
Indemnified Party may continue to pursue such matter, free of any participation
by the Indemnifying Party, at the sole expense of the Indemnified Party. In such
an event, the obligation of the Indemnifying Party shall be limited to the
amount of the offer of settlement which the Indemnified Party refused to accept
plus the reasonable costs and expenses of the Indemnified Party incurred prior
to the date the Indemnifying Party notified the Indemnified Party of the offer
of settlement.
(f) Notwithstanding
clause (d) above, the Indemnifying Party shall not be entitled to control, but
may participate in, and the Indemnified Party shall be entitled to have sole
control over, the defense or settlement of (x) that part of any Third Party
Claim (i) that seeks a temporary restraining order, a preliminary or permanent
injunction or specific performance against the Indemnified Party, or (ii) to the
extent such Third Party Claim involves criminal allegations against the
Indemnified Party or (y) the entire Third Party Claim if such Third Party Claim
would impose liability on the part of the Indemnified Party in an amount which
is greater than the amount as to which the Indemnified Party is entitled to
indemnification under this Agreement.
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(g) A
failure by an Indemnified Party to give timely, complete or accurate notice as
provided in this Section 7.4 will not
affect the rights or obligations of any party hereunder except and only to the
extent that, as a result of such failure, any party entitled to receive such
notice was deprived of its right to recover any payment under its applicable
insurance coverage or was otherwise directly and materially damaged as a result
of such failure to give timely notice.
Section 7.5 Right of
Offset. Without limiting any other rights or remedies
available to it, the Purchaser shall be entitled to offset any claim for
indemnity made pursuant to Section 7.2 and in
accordance with Section 7.4, against
any payment of the Purchase Price due under Section 2.1; provided, however, the
Purchaser may only exercise such right of offset in respect of claims relating
to Losses actually incurred by a Purchaser Indemnified Party (in which case the
amount of such offset shall be the amount of such actual Loss) or claims
actually asserted by a third party (in which case the amount of the offset shall
not exceed the Purchaser's good faith, reasonable estimate of the amount of
indemnifiable Losses that will ultimately be payable to a Purchaser Indemnified
Party in respect of such claims). If any such claims for indemnity
are resolved in favor of WWG and the Principals by mutual agreement or
otherwise, or if the amount withheld exceeds the amount ultimately payable to a
Purchaser Indemnified Party in respect of such claim, the Purchaser shall pay to
WWG the excess amount withheld with respect to such claim, together with
interest thereon for the period such amount has been withheld at a rate equal to
the published prime rate of interest of ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇ in New York, in effect
from time to time during the relevant period.
Section 7.6 Limitations
On and Other Matters Regarding Indemnification.
7.6.1 Indemnity Cushion and
Cap. Subject to Section 7.6.5,
neither WWG nor the Principals shall have any liability to any Purchaser
Indemnified Party with respect to Losses arising out of any of the matters
referred to in Section
7.2 until such time as the amount of such liability shall exceed $50,000
in the aggregate (in which case WWG and the Principals shall be liable for all
Losses in excess of $50,000). Notwithstanding anything to the
contrary herein, subject to Section 7.6.5 below,
the maximum aggregate liability of WWG and the Principals for indemnity payments
under Section
7.2 shall be an amount equal to $11,000,000. Notwithstanding
the foregoing, each Principal's maximum aggregate liability for indemnity
payments pursuant to Section 7.2.1 and
Section 7.2.2,
subject to Section
7.6.5 below, shall be such Principal's allocable portion of the total
Purchase Price paid or payable pursuant to Section 2.1 of this
Agreement.
7.6.2 Termination of
Indemnification Obligations of WWG and the Principals. Subject
to Section
7.6.5, the obligation of WWG and the Principals to indemnify under Section 7.2 hereof
shall terminate on April 30, 2012, except as to matters as to which the
Purchaser Indemnified Party has made a claim for indemnification on or prior to
such date, in which case the right to indemnification with respect thereto shall
survive the expiration of such period until such claim for indemnification is
finally resolved and any obligations with respect thereto are fully
satisfied.
7.6.3 Termination of
Indemnification Obligations of the Purchaser. The obligation
of the Purchaser to indemnify under Section 7.3 hereof
shall terminate on April 30, 2012, except as to matters as to which WWG or the
Principals have made a claim for indemnification on or prior to such date, in
which case the right to indemnification with respect thereto for such party
shall survive the expiration of such period until such claim for indemnification
is finally resolved and any obligations with respect thereto are fully
satisfied.
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7.6.4 Treatment. Any
indemnity payments by an Indemnifying Party to an Indemnified Party under this
Article VIII shall be treated by the parties as an adjustment to the Purchase
Price.
7.6.5 Exceptions. Each
of the limitations set forth above in this Section 7.6 shall in
no event (a) apply to any Losses incurred by a Purchaser Indemnified Party which
relate, directly or indirectly, to (i) any fraudulent acts committed by WWG or
the Principals; (ii) any breach of a representation or warranty contained in
Section 3.1,
3.2, 3.6, 3.11, 3.19, 3.25 or any other
provision hereof relating to Taxes, (iii) any indemnification obligation under
Sections
7.2.1(c), 7.2.1(d), 7.2.1(e), 7.2.1(f), 7.2.1(g) or 7.2.1(h); and (iv)
the obligations of WWG and the Principals set forth in Section 8.1 to pay
certain expenses; or (b) apply to any Losses incurred by a Company Indemnified
Party which relate, directly or indirectly, to (i) any fraudulent acts committed
by the Purchaser; (ii) any indemnification obligation under Section 7.3(c); and
(iii) the Purchaser's obligations set forth in Section 8.1 to pay
certain expenses.
7.6.6 Control by
MDC. All decisions and determinations to be made by the
Purchaser and/or a Purchaser Indemnified Party under this Article VII shall be
made by MDC in the name of and on behalf of the Purchaser and/or such other
Purchaser Indemnified Party.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Expenses. Except
as otherwise provided in this Agreement, the Purchaser, on the one hand, and the
Principals and WWG, on the other hand, shall pay its or his own expenses
relating to the transactions contemplated by this Agreement, including, without
limitation, the fees and expenses of their respective counsel, financial
advisors and accountants.
Section 8.2 Governing
Law; Service of Process and Consent to Jurisdiction. The interpretation and
construction of this Agreement, and all matters relating hereto (including,
without limitation, the validity or enforcement of this Agreement), shall be
governed by the laws of the State of Delaware without regard to any conflicts or
choice of laws provisions of the State of Delaware that would result in the
application of the law of any other jurisdiction. Each of the parties
hereto agrees that delivery of process, summons, notice or document in
accordance with Section 8.2 shall be
effective service of process for any action, suit or proceeding arising out of
this Agreement. Each party hereby irrevocably submits to the
exclusive jurisdiction of the United States District Court for the District of
Delaware or any court of the State of Delaware in any action, suit or proceeding
arising out of or relating to this Agreement or any of the transactions
contemplated hereby, and agrees that any such action, suit or proceeding shall
be brought only in such court. Each party hereby irrevocably waives,
to the fullest extent permitted by law, any objection that it may now or
hereafter have to the laying of the venue of any such action, suit or proceeding
brought in such a court and any claim that any such action, suit or proceeding
brought in such a court has been brought in an inconvenient
forum. THE PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
TRANSACTION CONTEMPLATED HEREBY, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND
WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. THE PARTIES AGREE
THAT ANY OF THEM MAY FILE A COPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN
EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-FOR AGREEMENT AMONG THE PARTIES
IRREVOCABLY TO WAIVE TRIAL BY JURY AND THAT ANY ACTION OR PROCEEDING WHATSOEVER
BETWEEN THEM RELATING TO THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY
SHALL INSTEAD BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING
WITHOUT A JURY.
46
Section 8.3 "Person"
Defined. "Person" shall mean and include
an individual, a company, a joint venture, a corporation (including any
non-profit corporation), an estate, an association, a trust, a general or
limited partnership, a limited liability company, a limited liability
partnership, an unincorporated organization and a government or other department
or agency thereof.
Section 8.4 "Knowledge" Defined. Where
any representation and warranty contained in this Agreement is expressly
specified by reference to the knowledge of WWG, such term shall be limited to
the actual knowledge of the Chief Financial Officer of TEAM, the Company and/or
NT and the Principals, and unless otherwise stated, such knowledge that would
have been discovered by the Chief Financial Officer of TEAM, the Company and/or
NT and the Principals after reasonable inquiry. Where any
representation and warranty contained in this Agreement is expressly specified
by reference to the knowledge of the Purchaser, as the case may be, such term
shall be limited to the actual knowledge of the executive officers of such
entity and unless otherwise stated, such knowledge that would have been
discovered by such executive officers after reasonable inquiry.
Section 8.5 "Affiliate"
Defined. As used in this Agreement, an "affiliate" of any Person,
shall mean any Person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with
such Person.
Section 8.6 Captions. The
Article and Section captions used herein are for reference purposes only, and
shall not in any way affect the meaning or interpretation of this
Agreement.
Section 8.7 Publicity. Subject
to the provisions of the next sentence, no party to this Agreement shall, and
the Principals shall use reasonable efforts to insure that no representative of
WWG, WWG2, TEAM, the Company or any Subsidiary shall, issue any press release or
other public document or make any public statement relating to this Agreement or
the matters contained herein without obtaining the prior approval of the
Purchaser and the Principals. Notwithstanding the foregoing, the
foregoing provision shall not apply to the extent that MDC is required to make
any announcement relating to or arising out of this Agreement by virtue of the
securities laws of the United States or Canada or the rules and regulations
promulgated thereunder or other rules of the NASDAQ Stock Market, Toronto Stock
Exchange or the United States Securities and Exchange Commission or any
announcement by any party or the Company pursuant to applicable law or
regulations.
47
Section 8.8 Notices. Unless
otherwise provided herein, any notice, request, instruction or other document to
be given hereunder by any party to any other party shall be in writing and shall
be deemed to have been given (a) upon personal delivery, if delivered by hand or
courier, (b) three days after the date of deposit in the mails, postage prepaid,
or (c) the next business day if sent by a prepaid overnight courier service, and
in each case at the respective addresses set forth below or such other address
as such party may have fixed by notice:
If to the Purchaser, addressed
to:
c/o MDC
Partners Inc.
▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention:
with a copy
to:
c/o MDC
Partners Inc.
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: General
Counsel
and (which shall not
constitute notice)
▇▇▇▇▇
& ▇▇▇▇▇▇▇ LLP
▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇▇▇, Esq.
If to WWG or the Principals,
to:
c/o TEAM Enterprises Inc.
▇▇▇ ▇
▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
with a copy to (which shall
not constitute notice):
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ Keechl
▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Esq.
Any party
may change the address to which notices are to be sent by giving notice of such
change of address to the other parties in the manner herein provided for giving
notice.
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Section 8.9 Parties
in Interest. This Agreement may not be transferred,
assigned, pledged or hypothecated by any party hereto, other than by operation
of law. Any purported such transfer, assignment, pledge, or
hypothecation (other than by operation of law) shall be void and
ineffective. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective heirs, executors,
administrators, successors and permitted assigns.
Section 8.10 Severability. In
the event any provision of this Agreement is found to be void and unenforceable
by a court of competent jurisdiction, the remaining provisions of this Agreement
shall nevertheless be binding upon the parties with the same effect as though
the void or unenforceable part had been severed and deleted.
Section 8.11 Counterparts. This
Agreement may be executed in two or more counterparts or by facsimile
transmission, all of which taken together shall constitute one
instrument.
Section 8.12 Entire
Agreement. This Agreement, together with the Schedules
and Exhibits hereto, constitutes the sole, exclusive and only agreements of the
parties hereto pertaining to the subject matter hereof, contains all of the
covenants, conditions and agreements between the parties, express or implied,
whether by statute or otherwise, and sets forth the respective rights, duties
and obligations of each party to the other party as of the date hereof. No oral
understandings, oral statements, oral promises or oral inducements
exist
Section 8.13 Amendments. This
Agreement may not be amended, supplemented or modified orally, but only by an
agreement in writing signed by each of the parties hereto.
Section 8.14 Third
Party Beneficiaries. Each party hereto intends that this
Agreement shall not benefit or create any right or cause of action in or on
behalf of any Person other than the parties hereto and their respective
successors and assigns as permitted under Section 8.9, except
the Purchaser Indemnified Parties as provided in Article VII hereof and with
respect to the provisions of Section 7.6.6,
MDC.
Section 8.15 Use of
Terms. Whenever the context so requires or permits, all
references to the masculine herein shall include the feminine and neuter, all
references to the neuter herein shall include the masculine and feminine, all
references to the plural shall include the singular and all references to the
singular shall include the plural. Whenever used in this Agreement, the terms
"Dollars" and "$" mean United States Dollars.
Section 8.16 "Liens"
Defined. With respect to any asset, a "Lien" shall mean (a) any
mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or
security interest in, on or of such asset, (b) the interest of a vendor or a
lessor under any conditional sale agreement, capital lease or title retention
agreement (other than an operating lease) (or any financial lease having
substantially the same economic effect as any of the foregoing) relating to such
asset and (c) in the case of securities, any purchase option, call or similar
right of a third party with respect to such securities.
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Section 8.17 No Strict
Construction; Representation by Counsel. The language used in
this Agreement will be deemed to be the language chosen by the parties hereto to
express their mutual intent, and no rule of law or contract interpretation that
provides that in the case of ambiguity or uncertainty a provision should be
construed against the draftsman will be applied against any party
hereto. The provisions of this Agreement shall be construed according
to their fair meaning and neither for nor against any party hereto irrespective
of which party caused such provisions to be drafted. Each of the
parties acknowledges that it has been represented by an attorney in connection
with the preparation and execution of this Agreement.
Section 8.18 Representative. Each
of the Principals and WWG hereby appoints ▇▇▇▇▇▇▇ as his or its exclusive agent
and attorney-in-fact (the "Representative") (i) to give
and receive notices and communications with respect to the provisions of this
Agreement, (ii) to amend the terms of this Agreement, (iii) to agree to,
negotiate, enter into settlements or compromises of matters arising under the
provisions of this Agreement, and (iv) to take any and all actions necessary or
appropriate in the judgment of the Representative to be taken on behalf of the
Principals and WWG under such provisions of this Agreement. Such
agency and that of any successor representative is irrevocable and coupled with
an interest; provided, however, the
Representative shall have no authority to act on behalf of any Principal and WWG
with respect to an indemnity claim under Section
7.2.2. In the event the Representative refuses to, or is no
longer capable of, serving as the Representative hereunder, the other Principals
shall promptly appoint a successor Representative who shall thereafter be the
successor Representative hereunder and the Representative shall serve until such
successor is duly appointed and qualified to act hereunder. The
Principals and WWG hereby agree that the Representative shall not have any
liability to the Company or any Subsidiary for any action he takes or omits to
take hereunder (or under any agreement or instrument referred to herein) in his
capacity as Representative, unless such action or omission constitutes bad faith
or willful misconduct by the Representative. Notices or
communications to or from the Representative shall constitute notice to or from
the Principals and/or WWG in respect of matters relating to this
Agreement. Any decision, act, consent or instruction of the
Representative shall constitute a decision of all of the Principals and WWG, and
shall be final, binding and conclusive upon each Principal and WWG, and the
Purchaser may rely upon any decision, act, consent or instruction of the
Representative as being the decision, act, consent or instruction of WWG and
each and every Principal.
Section 8.19 Guaranty. MDC
hereby agrees to pay, or cause the Purchaser to pay, when due, each payment of
Purchase Price required pursuant to Article II above and
any indemnification obligations of the Purchaser pursuant to Article VII
above.
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IN WITNESS WHEREOF, the
parties hereto have executed this Membership Interest Purchase Agreement, on the
day and year first above written.
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MDC
ACQUISITION INC.
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By:
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/s/ |
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Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title:
President
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WWG,
LLC
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By:
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/s/ |
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▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
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Managing
Member
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/s/
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▇▇▇▇
▇▇▇▇▇▇
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| /s/ | |
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▇▇▇▇▇
▇▇▇▇
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/s/
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▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
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/s/
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▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
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/s/
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▇▇▇▇▇▇▇
▇▇▇▇▇
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/s/
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▇▇▇▇
▇. ▇'▇▇▇▇▇
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MDC PARTNERS INC.
(solely with respect to Sections 7.6.6 and 8.19)
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By:
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/s/
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Name:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title:
General
Counsel
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