1
EXHIBIT 10.47
CONTRACT RIGHTS PURCHASE AGREEMENT
BY AND BETWEEN
PROFITSOURCE CORPORATION
"BUYER"
AND
DELOITTE & TOUCHE LLP
"SELLER"
DECEMBER 14, 1998
2
TABLE OF CONTENTS
(CONTINUED)
Page
1. Sale and Transfer of Rights and Liabilities.........................................1
1.1 Rights.......................................................................1
1.2 Liabilities..................................................................1
1.3 Closing......................................................................1
1.4 Purchase Price...............................................................1
1.5 Allocation of Purchase Price.................................................1
2. Representations and Warranties of Seller............................................2
2.1 Organization and Authority...................................................2
2.2 Authorization of Agreement...................................................2
2.3 Rights and Liabilities.......................................................2
2.4 No Conflict or Violation.....................................................3
2.5 Litigation...................................................................3
2.6 Brokers......................................................................3
2.7 Operations...................................................................4
3. Representations and Warranties of Buyer.............................................4
3.1 Organization and Corporate Authority.........................................4
3.2 No Conflict or Violation.....................................................4
3.3 Notes........................................................................5
3.4 Litigation...................................................................5
3.5 Brokers......................................................................5
4. Certain Understandings and Agreements of the Parties................................5
4.1 Confidentiality..............................................................5
4.2 Taxes........................................................................6
4.3 Access to Records and Files..................................................6
4.4 Cooperation in Litigation....................................................6
4.5 Further Assurances...........................................................6
4.6 No Interest..................................................................6
4.7 Terms of Notes...............................................................6
4.8 Disclaimer...................................................................7
5. Survival; Indemnification...........................................................7
5.1 Survival.....................................................................7
5.2 Indemnification by Seller....................................................7
5.3 Indemnification by Buyer.....................................................8
5.4 Indemnification Procedure....................................................8
5.5 Payment.....................................................................10
5.6 Set-off.....................................................................10
5.7 Limitations.................................................................10
i
3
6. Miscellaneous......................................................................11
6.1 Notices.....................................................................11
6.2 Assignability and Parties in Interest.......................................12
6.3 Governing Law...............................................................12
6.4 Counterparts................................................................12
6.5 Publicity...................................................................12
6.6 Complete Agreement..........................................................12
6.7 Modifications, Amendments and Waivers.......................................12
6.8 Headings; References........................................................13
6.9 Severability................................................................13
6.10 Expenses of Transactions....................................................13
6.11 Designated Representatives..................................................13
6.12 Enforcement of the Agreement................................................13
6.13 Interpretation with Asset Purchase Agreement................................13
6.14 Novation....................................................................13
6.15 Confidential Information....................................................14
SCHEDULES
1.4 Purchase Price
1.5 Allocation of Purchase Price
2 Disclosure Schedule
3.4 Claims
EXHIBIT
A Form of Note
ii
4
CONTRACT RIGHTS PURCHASE AGREEMENT
This Contract Rights Purchase Agreement (this "Agreement") is made and
entered unto as of December __, 1998 by and between Deloitte & Touche LLP, a
Delaware limited liability partnership ("Seller"), and ProfitSource Corporation,
a Delaware corporation ("Buyer").
A. Seller, acting through its Integrated Cost Reduction Strategies
business unit ("ICRS"), is engaged in the business of disbursement management
services; account receivable management; purchase learning services; benefits
funding services; and health care cost recovery services (which business, as
presently engaged in by Seller's ICRS business unit, is referred to herein as
the "Business").
B. Concurrently herewith, Buyer and Seller are entering into an Asset
Purchase Agreement (the "Asset Purchase Agreement") of even date herewith
pursuant to which Seller assets, rights and obligations related to the business
on the terms set forth therein.
C Seller desires to sell and assign to Buyer, and Buyer desires to
purchase and assume from Seller all of Seller's rights and obligations under the
Business Alliance Agreement dated September 30, 1996 between National Benefits
Consultants, LLC ("NBC") and Seller and all amendments and addenda thereto,
including and related letter agreement between NBC and Seller (collectively, the
"NBC Contract"), on the term set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
representations, warranties and agreements set forth herein, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. SALE AND TRANSFER OF RIGHTS AND LIABILITIES
1.1 RIGHTS. On the terms set forth in this Agreement, Seller hereby
conveys, transfers, assigns, sells and delivers Buyer, and Buyer hereby
acquires, accepts and purchases, all of Seller's rights, title and interest in,
to and under the NBC Contract (the "Rights").
1.2 LIABILITIES. On the terms set forth in this Agreement, Buyer hereby
assumes all of the liabilities and obligations of Seller arising prior to, on or
following the Closing in connection with or in relation to the NBC contract and
the "Liabilities").
1.3 CLOSING. The closing of the sale and purchase of the Rights and
assumption of the Liabilities (the "Closing") is taking place at the offices of
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ as of the date of
this Agreement (the "Closing Date").
1.4 PURCHASE PRICE. Concurrently herewith, Buyer is paying for the
Rights the consideration described on Schedule 1.4 (the "Purchase Price").
1.5 ALLOCATION OF PURCHASE PRICE. The Purchase Price will be allocated
for tax purposes (the "Allocation") in the manner set forth on Schedule 1.5. The
Allocation will be used by the parties in preparing all applicable tax returns
and shall be binding upon the parties and
1
5
upon each of their successors and assigns, and the parties shall report the
transaction herein in accordance with the Allocation and shall not take any
position or action inconsistent with the Allocation.
2. REPRESENTATIONS AND WARRANTIES OF SELLER. Each representation and warranty
contained in this Article 2 is qualified by the disclosures made in the
disclosure schedule attached hereto as Schedule 2 (the "Disclosure Schedule").
This Article 2 and the Disclosure Schedule shall be read together as an
integrated provision. The Business has been managed by persons affiliated with
Buyer acting in their capacities as partners or employees or Sellers or ICRS,
which persons are expected to resign from Seller to work exclusively for Buyer
following the Closing (together with all persons acting under such person's
direction, control or supervision, the "Buyer Associated Persons"). Accordingly,
the Buyer Associated Persons may have more knowledge regarding the matters
addressed in the representations and warranties of Seller herein than Seller
itself. When representations and warranties have set forth in this Article 2 are
qualified by the knowledge of Seller, such representations and warranties are
given by the Seller only to the extent of Seller's actual knowledge without any
obligation of inquiry and shall be deemed to be qualified in all respects by
such facts as the Buyer Associated Persons know or should know as a result to
their participation in the Business prior to the Closing. All such facts known
to the Buyer Associate Persons shall be deemed to be known by Buyer prior to
Closing Date and to have been disclosed by Seller to Buyer as if set forth in
this Agreement or in a schedule to this Agreement or in any other Transaction
Document. Notwithstanding any provision of this Agreement to the contrary,
Seller will not be liable on the basis of any claim or action that disclosure
provided by Seller in connection with the transactions contemplated by this
Agreement was incomplete. Subject to the foregoing, Seller represents and
warrants to Buyer that:
2.1 ORGANIZATION AND AUTHORITY. Seller is a limited liability
partnership duly organized., validly existing and in good standing under the
laws of the State of Delaware, with to Seller's knowledge, full power and
authority to enter into the NBC Contract and to perform its obligation there
under.
2.2 AUTHORIZATION OF AGREEMENT. Seller has all requisite power and
authority to enter into this Agreement and to consummate the transactions
contemplated by this Agreement. This Agreement, together with the schedules
delivered in connection herewith and the Note (as defined in Scheduled 1.4
hereto) (collectively, the "Transaction Documents"), have (except for
Transaction Documents executed and delivered solely by Buyer) been duly and
validly approved in accordance with the partnership agreement or other governing
documents of Seller and no other proceedings in the part of Seller are necessary
to approve this Agreement and to consummate the transactions contemplated this
Agreement. This Agreement and the other Transaction Documents delivered by
Seller have been duly executed and delivered by Seller, have been effectively
authorized by all necessary action by Seller and constitute legal, valid and
binding obligations of Seller, except as such enforceability may be limited by
general principles of equity and bankruptcy, insolvency, reorganization and
memorandum and other similar laws relating to creditors' rights (the "Bankruptcy
Exception").
2.3 RIGHTS AND LIABILITIES. Seller has taken no actions to subject any
of the Rights to any liens, mortgages, pledges, security interests,
encumbrances, prior assignments or claims of
2
6
any kind other than (i) actions that may have been taken by or with the
knowledge of a Buyer Associated Person taken by Seller at the direction of a
Buyer Associated Person or in the performance of and consistent with duties
known by one or more Buyer Associated persons to be performed by Seller on
behalf of the business, as to which Seller makes no representation or warranty,
(ii) Permitted Liens (as defined in Section 3.2) and (iii) liens, mortgages,
pledges, security interests, encumbrances, prior assignments and claims in the
ordinary course which are not material. Since January 1, 1998, Seller has not
compromised, liquidated or settled any material liability other than any such
compromise, liquidation or settlement (x) by or with the knowledge of the Buyer
Associated Person or by Seller at the direction of a Buyer Associated Person or
in the performance of and consistent with duties known by one or more Buyer
Associated Persons to be performed by Seller on behalf of the business, as to
which Seller makes no representation or warranty or (y) in the ordinary course
of business.
2.4 NO CONFLICT OR VIOLATION. The execution and performance by Seller of
this Agreement and the other Transaction Documents delivered by Seller and the
consummation of the transactions contemplated by this Agreement and by the other
Transaction Documents do not and will not: (i) violate or conflict with any
provision of the organizational or governing documents of Seller; (ii) violate
in any material respect any provision or requirement of any domestic or foreign,
national, state, or local law, statute, judgment, order , writ, injunction,
decree, award, rule, or regulation of any governmental entity applicable to
Seller or, to the knowledge of Seller, the NBC Contract; (iii) to the knowledge
of Seller, violate in any material respect, result in a material breach of,
constitute (with due notice or lapse of time or both) a material default or
cause any material obligation, penalty, premium or right of termination to arise
or accrue under the NBC Contract (assuming NBC's consent is obtained as
contemplated on the signature page hereto); (iv) to the knowledge of Seller,
result in the creation or imposition of any material lien, charge or encumbrance
or any kind whatsoever upon the Rights, except for Permitted Liens; or (v) to
the knowledge of Seller, result i n the cancellation, modification, revocation
or suspension of any material license, permit, certificate, franchise,
authorization or approval issued or granted by any governmental entity to Seller
in relation to the NBC Contract.
2.5 LITIGATION. Except asset forth in Schedule 3.4, to Seller's
knowledge there are no material claims, actions, suits, proceedings, labor
disputes or investigations of any nature pending or threatened by or against the
Seller, the officers, partners, employees, agents of Seller, or any of its
Affiliates directly involving, affecting or relating to the transactions
contemplated by this Agreement or the NBC Contract. To Seller's knowledge,
neither the NBC Contract nor any Rights is subject to any material order, writ,
judgment, award, injunction or decree of any governmental entity. For purposes
of this Agreement, "Affiliate" shall have the meaning ascribed to such term in
Rule 405 under the Securities Act of 1933.
2.6 BROKERS. No broker, finder, investment banker, or other person is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement, based upon arrangements
made by or on behalf of Seller, provided that no representation is made
regarding any such broker, finder, investment banker or other person engaged or
retained by or at the direction of any Buyer Associated Person purportedly on
behalf of Seller.
3
7
2.7 OPERATIONS. Since January 1, 1998, no Seller Associated Person has
made any material commitments or entered into any material obligations that are
part of the Liabilities, other than commitments or obligations that (i) were
made or entered into by Seller Associated Person with the knowledge of one or
more Buyer Associated Persons or in the performance of and consistent with
duties known by one or more Buyer Associated Persons to be performed by Seller
on behalf of the Business or (ii) were made or entered into the ordinary course
of business. For purposes hereof, a "Seller Associates Person" is any officer,
director, partner, employee or agent of Seller who is not a Buyer Associated
Person at the time of any conduct, action or omission in question.
3. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents and warrants to
Seller as follows:
3.1 ORGANIZATION AND CORPORATE AUTHORITY. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, with full power and authority to carry on its business as it is now
and has since its organization been conducted, and to own, lease and operate its
assets. Buyer has all requisite power and authority to enter into this Agreement
and to consummate the transactions contemplated by this Agreement. This
Agreement and the Transaction Documents have (except for Transaction Documents
executed and delivered solely by Seller) been duly and validly approved in
accordance with the governing documents of Buyer and no other proceedings on the
part of Buyer are necessary to approve this Agreement and to consummate the
transactions contemplated by this Agreement. This Agreement and the other
Transaction Documents delivered by Buyer have been duly executed and delivered
by Buyer, have been effectively authorized by all necessary action by Buyer, and
constitute legal, valid and binding obligations of Buyer, except as such
enforceability may be limited by the Bankruptcy Exception.
3.2 NO CONFLICT OR VIOLATION. The execution, delivery and performance by
Buyer of this Agreement and the other Transaction Documents delivered by Buyer
and the consummation of the transactions contemplated by this Agreement and by
the other Transaction Documents do not and will not: (i) violate or conflict
with any provision of the organizational or governing documents of Buyer; or
(ii) violate in any material respect any provision or requirement of any
domestic or foreign, national, state or local law, statute, judgment, order,
writ, injunction, decree, award, rule, or regulation of any governmental entity
applicable to Buyer or its business or assets, (iii) to the knowledge of Buyer,
violate in any material respect, result in a material breach of, constitute
(with due notice or lapse of time or both) a material default or cause any
material obligation, penalty, premium or right of termination to arise or accrue
under any material contract of Buyer; (iv) to the knowledge of Buyer, result in
the creation or imposition of any material lien, charge or encumbrance of any
kind whatsoever upon any of the assets of Buyer except for Permitted Liens; or
(v) to the knowledge of Buyer, result in the cancellation, modification,
revocation or suspension of any material license, permit, certificate,
franchise, authorization, or approval issued or granted by any governmental
entity to Buyer in relation to the business of Buyer. As used herein, "Permitted
Liens" means (a) any lien or encumbrance for taxes which are not yet due or
which are being contested in good faith by appropriate proceedings diligently
prosecuted; (b) any carrier's, warehouseman's, mechanic's, materialman's,
repairman's, landlord's or any other statutory or inchoate lien or encumbrance
incidental to the ordinary conduct of the Business which involves an obligation
that is not past
4
8
due or which is being contested in good faith by appropriate proceedings
diligently prosecuted; (c) any interest of a governmental agency or
instrumentality in any lawfully made pledge or deposit under workers'
compensation, unemployment insurance or other social security statutes; (d) any
interest of any person or entity with respect to a recoupment of unearned
revenues under a contingency-based engagement relating to the NBC Contract; or
(e) the Liabilities.
3.3 NOTES. Any note delivered by Buyer as part of the Purchase Price has
been duly authorized, executed and delivered, and constitutes a legal, valid and
binding obligation of Buyer, except as such enforceability may be limited by the
Bankruptcy Exception.
3.4 LITIGATION. Except as set forth on Schedule 3.4, there are no
material claims, actions, suits, proceedings, labor disputes or investigations
of any nature pending or, to the knowledge of Buyer, threatened by or against
Buyer, the officers, directors, partners, employees, agents of Buyer, or any of
its Affiliates directly involving, affecting or relating to the transactions
contemplated by this Agreement or its business or assets. Neither Buyer nor its
business or assets is subject to any order, writ, judgment, award, injunction or
decree of any governmental entity.
3.5 BROKERS. No broker, finder, investment banker, or other person is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement, based upon arrangements
made by or on behalf of Buyer, except for obligations of National Benefits
Consultants, LLC to ▇▇▇▇▇▇▇▇▇ & Company, Inc. in connection with the
Consolidation Transactions (as defined below) and financing thereof, which
obligations are being assumed by Buyer.
4. CERTAIN UNDERSTANDINGS AND AGREEMENTS OF THE PARTIES
4.1 CONFIDENTIALITY. Subject to Section 6.5, Buyer and Seller shall, and
shall each cause their respective Affiliates, officers, directors, employees,
agents, and advisors to, keep confidential all information received in
connection with the transactions contemplated by this Agreement, other than
information that (i) was in the public domain before the date of this Agreement
or subsequently came into the public domain other than as a result of disclosure
by the party to whom the information was delivered; or (ii) was lawfully
received by a party from a third party free of any obligation of confidence of
or to such third party; or (iii) was already in the possession of the party
prior to receipt of the information, directly or indirectly, from the other
party; or (iv) is required to be disclosed in a judicial or administrative
proceeding or by law after giving the other party as much advance notice of the
possibility of such disclosure as practicable so that the other party may
attempt to protect against such disclosure; or (v) is subsequently and
independently developed by employees, consultants or agents of the party to whom
the information was delivered without reference to the information. Seller
acknowledges that Buyer may provide information about the NBC Contract to other
participants in the Consolidation Transactions, provided that such recipients
shall agree to be bound by confidentiality restrictions as provided in this
Agreement for Seller's benefit. For purposes of this Agreement, "Consolidation
Transactions" refers to the acquisition by Buyer in a series of transactions,
prior to or concurrent with the Closing, of various companies selected by Buyer
in its discretion and engaged in the business of cost reduction, cost recovery
and profit
5
9
enhancement services, by means of mergers into Buyer, or acquisitions by Buyer
of all or substantially all of the assets or stock or other equity interests of
such companies.
4.2 TAXES. All taxes attributable to the transfer of the Rights and
Liabilities by Seller to Buyer as contemplated by this Agreement will be paid
half by Buyer and half by Seller. Neither Buyer nor Seller makes any
representations regarding the tax consequences of the transaction contemplated
by this Agreement or the other Transaction Documents.
4.3 ACCESS TO RECORDS AND FILES. Seller shall have the right for a
period of three (3) years following the Closing Date to have reasonable access
to such books, records and accounts, correspondence, production records and
other similar information as are transferred to Buyer pursuant to the terms of
this Agreement for the limited purpose of concluding its involvement in the NBC
Contract prior to the Closing Date.
4.4 COOPERATION IN LITIGATION. Each party will fully cooperate in all
reasonable respects with the other in the defense or prosecution of any
litigation or proceeding already instituted or which may be instituted hereafter
against or by such party relating to or arising out of the NBC contract prior to
or after the Closing Date (other than litigation between Buyer and/or its
Affiliates or assignees, on the one hand, and Seller and/or its Affiliates or
assignees, on the other hand, arising out of the transactions contemplated by
this Agreement). The party requesting such cooperation shall pay the
out-of-pocket expenses (including reasonable legal fees and disbursements) of
the party providing such cooperation and of its officers, directors, partners,
principals, employees and agents reasonably incurred in connection with
providing such cooperation, but shall not be responsible to reimburse the party
providing such cooperation for such party's time spent in such cooperation or
the salaries or costs of fringe benefits or other similar expenses paid by the
party providing such cooperation to its officers, directors, employees and
agents while assisting in the defense or prosecution of any such litigation or
proceeding.
4.5 FURTHER ASSURANCES. Upon the reasonable request of a party to this
Agreement at any time after the Closing Date, the other party shall forthwith
execute and deliver such further instruments of assignment, transfer,
conveyance, endorsement, direction or authorization and other documents as the
requesting party or its counsel may reasonably request in order to perfect title
of Buyer and its successors and assigns to the Rights or otherwise to effectuate
the purposes of this Agreement.
4.6 NO INTEREST. Buyer is a recently organized corporation formed for
the purpose of effecting the Consolidation Transactions, with the participation
of various individuals, some of whom are the Buyer Associated Persons. Seller
has no rights in or to buyer, any equity interest therein, or debt thereof
(other than under promissory notes made by Buyer to Seller concurrently
herewith), in the business of buyer, or the Consolidation Transactions, and the
only such rights in favor of Seller are the obligations undertaken by Buyer
pursuant to this Agreement and other Transaction documents and the Asset
Purchase Agreement and the agreements and documents related thereto.
4.7 TERMS OF NOTES. Buyer represents and warrants to and covenants with
Seller that any note delivered by Buyer as part of the Purchase Price does and
will contain economic and
6
10
payment terms not less favorable to Seller than those terms benefiting a holder
of any other note issued by Buyer or its Affiliates in connection with the
Consolidation Transactions (or any of them) or any similar transaction
consummated prior to or on the Closing Date.
4.8 DISCLAIMER.
(a) ALL OF THE RIGHTS AND LIABILITIES ARE BEING SOLD AND
TRANSFERRED TO BUYER "AS IS" AND "WHERE IS" AND ALL WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING BUY NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR USE OR A PARTICULAR PURPOSE, ARE EXCLUDED FROM THE SALE AND TRANSFER OF THE
RIGHTS AND LIABILITIES (EXCEPT AS EXPRESSLY SET FORTH IN ARTICLE 2, BUT SUBJECT
TO SECTION 5.1). SELLER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY NATURE
WITH RESPECT TO THE RIGHTS OR LIABILITIES (EXCEPT AS EXPRESSLY SET FORTH IN
ARTICLE 2, BUT SUBJECT TO SECTION 5.1).
(b) Buyer acknowledges that it has had ample opportunity to
investigate and review the NBC Contract, the Rights, the Liabilities and
Seller's books and records relating to the NBC Contract, the Rights and the
Liabilities and that such investigation and review have been completed to
Buyer's satisfaction.
5. SURVIVAL; INDEMNIFICATION.
5.1 SURVIVAL. The representations and warranties made in this Agreement
or in any exhibit, schedule, certificate or any other Transaction Document shall
survive any investigation made by any party to this Agreement (with respect to
Seller's representations and warranties, subject to the other terms of this
Agreement) and the Closing of the transactions contemplated by this Agreement
until the first anniversary of the Closing Date. As to any matter or claim which
is based upon fraud by the indemnifying party, the representations and
warranties set forth in this Agreement shall expire only upon expiration of the
applicable statute of limitations. No party will be liable to another under any
warranty or representation after the applicable expiration date of such warranty
or representation; provided however, if a claim or notice is given under this
Article 5 with respect to any representation or warranty prior to the applicable
expiration date, such claim may be pursued to resolution notwithstanding
expiration of the representation or warranty under which the claim was brought.
5.2 INDEMNIFICATION BY SELLER. Subject to the limits set forth in this
Article 5, Seller and its successors and assigns shall jointly and severally
indemnify, defend, reimburse and hold harmless Buyer and its Affiliates and
their successors and assigns, and the officers, directors, employees and agents
of any of them, from and against any and all claims, losses, damages,
liabilities, obligations, assessments, penalties and interest, demands, actions
and expenses, whether direct or indirect, known or unknown, absolute or
contingent (including, without limitation, settlement costs and any legal,
accounting and other expenses for investigating or defending any actions or
threatened actions) ("Losses") reasonably incurred by any such indemnitee,
arising out of or in connection with any of the following:
(a) the ownership of the rights before the Closing, except for the
Liabilities;
7
11
(b) any material inaccuracy of any representation or warranty made
by Seller in this Agreement or any other Transaction Document delivered by
Seller, subject to the other terms of this Agreement;
(c) the material breach of any covenant, agreement or obligation
of seller contained in this Agreement or any other Transaction Document
delivered by Seller; and
(d) any and all Seller Associated Persons' conduct (as defined
below) at any time before or after the Closing.
Notwithstanding any provision of this section 5.2 to the contrary, Seller
and its successors, assigns and Affiliates shall have no obligation or liability
with respect to any act, omission or conduct of any of the Buyer Associated
Persons in connection with the transactions contemplated by this Agreement or
the other Transaction Documents or the Consolidation Transactions or any of the
transactions related thereto ("Buyer Associated Persons' Conduct").
5.3 INDEMNIFICATION BY BUYER. Subject to the limits set forth in this
Article 5, Buyer and its successors and assigns shall jointly and severally
indemnify, defend, reimburse and hold harmless Seller and its Affiliates and
their successors and assigns, and the officers, directors, partners, principals,
employees and agents of any of them, from and against any and all Losses
reasonably incurred by any such indemnitee, arising out of or in connection with
any of the following:
(a) the ownership of the Rights after the Closing;
(b) any material inaccuracy of any representation or warranty made
by Buyer in this Agreement or any other Transaction Document delivered by Buyer;
(c) the material breach of any covenant, agreement or obligation
of Buyer contained in this Agreement or any other Transaction Document delivered
by Buyer;
(d) the Liabilities;
(e) any and all buyer Associated Persons' conduct at any time
before or after the Closing; and
(f) the claims by Anthem Insurance Companies, Inc. described in
Schedule 3.4.
Notwithstanding any provision of this section 5.3 to the contrary, Buyer
and its successors, assigns and Affiliates shall have no obligation or liability
with respect to any act, omission or conduct of any Seller Associated Person in
connection with the transactions contemplated by this Agreement or the other
Transaction Documents or the Consolidation Transactions or any of the
transactions related thereto ("Seller Associated Persons' Conduct").
5.4 INDEMNIFICATION PROCEDURE.
(a) Whenever any third party claim shall arise for indemnification
hereunder (a "Claim"), the party entitled to indemnification (the "Indemnitee")
shall promptly give written
8
12
notice to the party obligated to provide indemnity (the "Indemnitor") with
respect to the Claim after the receipt by the Indemnitee of reliable information
of the facts constituting the basis for the Claim; but the failure to timely
give such notice shall not relieve the Indemnitor from any obligation under this
Agreement, except to the extent, if any, that the Indemnitor is materially
prejudiced thereby.
(b) Upon receipt of written notice from the Indemnitee of a Claim,
the Indemnitor shall assume the defense of such Claim by providing counsel (such
counsel subject to the reasonable approval of the Indemnitee) to defend the
Indemnitee against the matter from which the Claim arose, at the Indemnitor's
sole cost, risk and expense. The Indemnitee shall cooperate in all reasonable
respects, at the Indemnitor's sole cost, risk and expense, with the Indemnitor
in the investigation, trial, defense and any appeal arising from the matter from
which the Claim arise; provided, however, that the Indemnitee may (but shall not
be obligated to) participate in (but not control) any such investigation, trial,
defense and any appeal arising in connection with the Claim at its sole cost,
risk and expense, subject to the following sentence. If the Indemnitee's
participation in any such investigation, trial, defense and any appeal arising
from such Claim relates to a legal position or defense that varies materially
from the legal positions or defenses pursued by the Indemnitor, and if the
Indemnitee reasonably believes upon the advice of counsel that the Indemnitee's
interests will be adversely and materially affected if such legal position or
defense is not pursued, the Indemnitor shall bear the sole cost, risk and
expense of the Indemnitee's separate participation, but limited to all fees,
costs and expenses of one separate counsel and appropriate local counsel for the
Indemnitee (or multiple Indemnitee). If the Indemnitee elects to so participate,
the Indemnitor shall cooperate with the Indemnitee, and the Indemnitor shall
deliver to the Indemnitee or its counsel copies of all pleadings and other
information within the Indemnitor's knowledge or possession reasonably requested
by the Indemnitee or its counsel that is relevant to the defense of such Claim
and that will not prejudice the Indemnitor's position, claims or defenses. The
Indemnitee and its counsel shall maintain confidentiality with respect to all
such information consistent with the conduct of a defense hereunder. The
Indemnitor shall have the right to elect to settle any claim for monetary
damages only without the Indemnitee's consent, if the settlement includes a
complete release of the Indemnitee. If the settlement does not include such a
release, it will be subject to the consent of the Indemnitee. The Indemnitor may
not admit any liability of the Indemnitee or waive any of the Indemnitee's
rights without the Indemnitee's prior written consent. The Indemnitor shall not
be liable for any settlement effected without its prior written consent. If the
subject of any Claim results in a judgment or settlement, the Indemnitor shall
promptly pay such judgment or settlement.
(c) If the Indemnitor fails to assume the defense of the subject
of any Claim in accordance with the terms of Section 5.4(b), if the Indemnitor
fails diligently to prosecute such defense, if the Indemnitor has, in the
Indemnitee's good faith judgment upon the advise of counsel, a conflict of
interest, or if the Indemnitor has, in the Indemnitee's good faith judgment,
insufficient resources with which to conduct an adequate defense, the Indemnitee
may defend against the subject of the Claim, at the Indemnitor's sole cost, risk
and expense, in such manner and on such terms as the Indemnitee deems reasonably
appropriate, including, without limitation (notwithstanding the penultimate
sentence of Section 5.4(b)) settling the subject of the Claim after giving
reasonable notice to the Indemnitor. If the Indemnitee defends the subject of a
Claim in accordance with this Section, the Indemnitor shall cooperate with the
Indemnitee and
9
13
its counsel, at the Indemnitor's sole cost, risk and expense, in all reasonable
respects, and shall deliver to the Indemnitee or its counsel copies of all
pleadings and other information within the Indemnitor's knowledge or possession
reasonably requested by the Indemnitee or its counsel that are relevant to the
defense of the subject of any such Claim and that will not prejudice the
Indemnitor's position, claims or defenses. The Indemnitee shall maintain
confidentiality with respect to all such information consistent with the conduct
of a defense hereunder.
(d) The obligation of the Indemnitor to indemnify the Indemnitee
against Losses arising under this Agreement shall be in addition to any other
obligations the Indemnitor might otherwise have and any other rights the
Indemnitee might otherwise have.
5.5 PAYMENT. All payments owing under this Article 5 will be made
promptly as indemnifiable Losses are incurred. If the indemnitee defends the
subject matter of any Claim in accordance with Section 5.4(c) or proceeds with
separate counsel on the Indemnitor's account in accordance with Section 5.4(b),
the expenses (including attorneys' fees) incurred by the Indemnitee shall be
paid by the Indemnitor in advance of the final disposition of such matter as
incurred by the Indemnitee, if the Indemnitee undertakes in writing to repay any
such advances in the event that it is ultimately determined by a court of
competent jurisdiction that the Indemnitee is not entitled to indemnification
under the terms of this Agreement or applicable law.
5.6 SET-OFF. In addition to any rights of set off or other rights that
any of the Indemnitee may have at common law, by statute or otherwise, each
Indemnitee shall have the right to set off any amount that is owed by such
Indemnitee to an Indemnitor against any amount otherwise payable by the
Indemnitor to the Indemnitee. Notwithstanding any provision of this Agreement to
the contrary, any amounts payable by Seller to Buyer or any of its Affiliates or
related persons first shall be satisfied by reducing, on a dollar-for-dollar
basis, first, unpaid accrued interest and second, unpaid principal amounts in
respect of debt instruments of Buyer held by Seller, including, without
limitation, the Buyer notes constituting part of the Purchase Price and any
other Buyer note to Seller. Any such reduction shall be deemed to be a
prepayment by Buyer of such amounts.
5.7 LIMITATIONS.
(a) Notwithstanding any provision of this Agreement to the
contrary, no party shall have any obligation to indemnify any person entitled to
indemnity under this Article 5 or to pay damages in respect of claims arising
under this Agreement or any other Transaction document unless the persons so
entitled to indemnity or recovery hereunder have suffered Losses in an aggregate
amount attributable to all Claims and damages in excess of Fifty thousand
Dollars ($50,000) (the "Threshold"). Once the aggregate amount of Losses exceeds
the Threshold, persons entitled to recovery shall be entitled to recover the
full amount of all Losses, including any amounts which constituted the
Threshold. No person shall be entitled to indemnification under this Article 5
for Losses directly or indirectly caused by a breach by such person of any
representation, warranty, covenant or other agreement set forth in this
Agreement.
(b) Notwithstanding any provision of this Agreement or any
Transaction Document to the contrary, Seller's Aggregate Liability shall not
exceed $4 million. for these purposes,
10
14
"Seller's Aggregate Liability" means the aggregate liability of seller to Buyer
and the indemnified persons specified in Section 5.2 for all claims arising
under this Agreement and the other Transaction Documents, plus the aggregate
liability of Seller to Buyer and the indemnified persons specified in Section
5.2 of the Asset Purchase Agreement for all claims arising under the Asset
Purchase Agreement and the other transaction documents defined in the Asset
Purchase Agreement.
6. MISCELLANEOUS
6.1 NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed given upon personal delivery
or three (3) days after being mailed by certified or registered mail, postage
prepaid, return receipt requested, or one (1) business day after being sent via
a nationally recognized overnight courier service if overnight courier service
is requested from such service or upon receipt of electronic or other
confirmation of transmission if sent via facsimile to the parties, their
successors in interest or their assignees at the following addresses and
facsimile numbers, or at such other addresses or facsimile numbers as the
parties may designate by written notice in accordance with this Section 6.1:
If to Buyer: President
ProfitSource Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
Park Plaza, Jamboree Center
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
If to Seller: Deloitte & Touche LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Office of the General Counsel
With a copy to: ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
11
15
6.2 ASSIGNABILITY AND PARTIES IN INTEREST. This Agreement and the
rights, interests or obligations under this Agreement may not be assigned by any
of the parties to this Agreement without the written consent of the other, which
consent will not be unreasonably withheld. This Agreement shall inure to the
benefit of and be binding upon Buyer or Seller and their respective permitted
successors and assigns. Nothing in this Agreement will confer upon any person or
entity not a party to this Agreement, or the legal representatives of such
person or entity, any rights or remedies of any nature or kind whatsoever under
or by reason of this Agreement, except as provided in Sections 5.2 and 5.3.
6.3 GOVERNING LAW. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of California, without
regard to its choice-of-law principles.
6.4 COUNTERPARTS. Facsimile transmission of any signed original document
and/or retransmission of any signed facsimile transmission will be deemed the
same as delivery of an original. At the request of any party, the parties will
confirm facsimile transmission by signing a duplicate original document. This
Agreement may be executed in counterparts, each of which shall be deemed an
original, but all of which shall constitute but one and the same instrument.
6.5 PUBLICITY. No party may, or may it permit its Affiliates to, issue
or cause the publication of any press release or other public announcement with
respect to this Agreement or the transactions contemplated hereby without the
prior written consent of Buyer and Seller, except that, (i) Buyer may disclose
details of this Agreement to other participants in the Consolidation
Transactions, provided that such recipients shall agree to be bound by
confidentiality restrictions as provided in Section 4.1 for Seller's benefit,
(ii) Buyer and Seller may each make such communications with employees,
customers, suppliers, lenders, lessors, shareholders, partners, principals and
advisors to the extent necessary to carry out the ordinary business of Buyer and
Seller, respectively, (iii) Buyer and Seller may each make such disclosures that
are required by applicable law, rule, regulation, professional standard or
responsibility, court order or other legal process, provided that, in any such
case, the party proposing to make such disclosure shall consult in good faith
with the other party as far in advance as practicable to such disclosure and
(iv) Seller and Buyer may advise their clients, prospective clients, vendors,
suppliers and lessors of this Agreement and the transactions contemplated by
this Agreement as required by applicable law, rule, regulation, professional
standard or responsibility or contractual obligation or to avoid marketplace
confusion.
6.6 COMPLETE AGREEMENT. This Agreement, the exhibits and schedules to
this Agreement and the other Transaction Documents contain the entire agreement
between the parties to this Agreement with respect to the transactions
contemplated in this Agreement and in the other Transaction Documents and shall
supersede all previous oral and written and all contemporaneous oral
negotiations, commitments, and understandings.
6.7 MODIFICATIONS, AMENDMENTS AND WAIVERS. No amendment of this
Agreement will be effective unless in writing signed by the parties to this
Agreement. The parties to this Agreement shall not be deemed to have waived any
of their respective rights hereunder unless such waiver be in writing and signed
by the party so waiving its right. No delay or omission on the part of either
party in exercising its rights under this Agreement shall operate as a waiver of
12
16
such right or any other right. A waiver on one occasion shall not be construed
as a bar to, or waiver of, that right or any other right or remedy on a future
occasion.
6.8 HEADINGS; REFERENCES. The headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. References herein to articles, sections,
schedules and exhibits refer to the referenced articles, sections, schedules or
exhibits of this Agreement, unless otherwise specified.
6.9 SEVERABILITY. Any provision of this Agreement which is invalid,
illegal, or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity, illegality, or unenforceability,
without affecting in any way the remaining provisions hereof in such
jurisdiction or rendering that or any other provision of this Agreement invalid,
illegal, or unenforceable in any other jurisdiction.
6.10 EXPENSES OF TRANSACTIONS. All fees, costs and expenses incurred by
Buyer in connection with the transactions contemplated by this Agreement and the
other Transaction Documents shall be borne by Buyer, and all fees, costs, and
expenses incurred by Seller in connection with the transactions contemplated by
this Agreement and the other Transaction Documents shall be borne by Seller.
6.11 DESIGNATED REPRESENTATIVES. As long as ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ remains an
active partner of Seller, he, or another partner of Seller mutually acceptable
to both parties, will serve as the sole representative of Seller in any dispute
resolution discussion between the parties with respect to any disputes between
Seller and Buyer under this Agreement or any other Transaction Document. Buyer
shall appoint ▇▇▇▇▇ ▇▇▇▇▇▇ or another representative mutually acceptable to both
parties to serve as the sole representative of Buyer in any dispute resolution
discussion between the parties with respect to any disputes between Seller and
Buyer under this Agreement or any other Transaction Document.
6.12 ENFORCEMENT OF THE AGREEMENT. Seller and Buyer acknowledge that
irreparable damage may occur if any of the obligations of Seller or Buyer under
this Agreement are not performed in accordance with their specific terms or are
otherwise breached. Each of Buyer and Seller will be entitled to seek an
injunction or injunctions to prevent breaches of this Agreement by the other and
to seek to enforce specifically the terms and provisions to this Agreement, this
being in addition to any other remedy to which Buyer or Seller, as the case may
be is entitled at law or in equity or otherwise.
6.13 INTERPRETATION WITH ASSET PURCHASE AGREEMENT. If there is any
inconsistency between any provision of this Agreement and any provision of the
Asset Purchase Agreement that purports to affect the subject matter of this
Agreement, such provision of this Agreement shall prevail in each such instance.
Without limiting the generality of the foregoing, the parties agree that the
indemnification provisions set forth in Sections 5.2 and 5.3 hereof shall apply
with respect to the subject matter of this Agreement notwithstanding any
inconsistent provision in Section 5.2 or Section 5.3 of the Asset Purchase
Agreement.
6.14 NOVATION. NBC, Buyer and Seller agree that (i) this Agreement
constitutes a novation with respect to the NBC Contract, the Rights and the
Liabilities, (ii) Buyer is
13
17
substituted for Seller for all purposes of the NBC Contract, the Rights and the
Liabilities, (iii) Seller and its Affiliates shall have no further obligation,
liability or duty with respect to the NBC Contract or the Liabilities (except
for those obligations of Seller specified in Section 5.2, subject to the terms
thereof), which obligations, liabilities and duties are extinguished, satisfied
and discharged, and (iv) Seller and its Affiliates shall have no interest in or
obligation under the NBC Contract or the Rights other than the right to receive
the Purchase Price and the other rights provided to Seller pursuant to this
Agreement and the other Transaction Documents. Without limiting the generality
of the foregoing, Seller specifically disclaims any interest in or right to (x)
advances in the aggregate amount of $1.05 million made by Seller to NBC pursuant
to the NBC Contract, which amounts NBC will treat as earned income at Closing
for financial reporting purposes, and (y) any and all rights described in the
letter agreement between NBC and Seller constituting part of the NBC Contract.
6.15 CONFIDENTIAL INFORMATION. Notwithstanding anything in this Agreement
to the contrary, Buyer and NBC, on the one hand, and Seller, on the other hand,
shall remain obligated to the other to fulfill its obligations with respect to
"Confidential Information" under Section 5 of the NBC Contract, except as set
forth below. NBC and Buyer shall return as soon as practicable to Seller all
proprietary or confidential information of Seller in the possession of NBC or
Buyer or their respective Affiliates, directors, officers, employees or agents;
provided, however, that Buyer may retain all such proprietary or confidential
information of Seller related exclusively to the NBC Contract, the Rights or the
Liabilities, and nothing in this Agreement will affect Buyer's right to
information sold to Buyer pursuant to the Asset Purchase Agreement.
14
18
IN WITNESS WHEREOF, each of the parties to this Agreement has executed
this Agreement as of the date first above written.
"BUYER"
PROFITSOURCE CORPORATION,
A DELAWARE CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: President
"SELLER"
DELOITTE & TOUCHE LLP,
A DELAWARE LIMITED LIABILITY PARTNERSHIP
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Partner
As of the Closing Date, National Benefits Consultants, LLC hereby (i) consents
to the transactions contemplated in this Agreement and the other Transaction
Documents and (ii) agrees to be bound by Sections 6.14 and 6.15 of this
Agreement.
"NBC"
NATIONAL BENEFITS CONSULTANTS, LLC
A DELAWARE LIMITED LIABILITY COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: VP
15
19
SCHEDULE 1.4
PURCHASE PRICE
In exchange for the rights, (x) Buyer is paying at the Closing an
aggregate Purchase Price of Twenty Million Dollars ($20,000,000) as described
below:
(i) Buyer is delivering to Seller Twelve Million U.S. Dollars
($12,000,000) in cash by wire transfer of immediately available funds to the
account set forth below:
Bank: Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
ABA No.: ▇▇▇▇▇▇▇▇▇
Account: Deloitte & Touche
Account No.: ▇▇▇-▇-▇▇▇▇▇▇
Reference: B/O ProfitSource Corporation
Re: Contract Rights Purchase Agreement
(ii) Buyer is delivering to Seller a promissory note of Buyer, dated as
of the Closing Date in the form of Exhibit A in the principal amount of Eight
Million U.S. Dollars ($8,000,000) (the "Note"); and
(y) Buyer assumes from Seller the Liabilities by delivery to Seller of
this Agreement.
16