STOCK AND WARRANT PURCHASE AGREEMENT
BETWEEN
PC QUOTE, INC.
AND
IMPRIMIS INVESTORS LLC
AND
WEXFORD SPECTRUM INVESTORS LLC
OCTOBER 15, 1997
TABLE OF CONTENTS
1. Definitions
2. Purchase and Sale of Shares and Warrants
3. Representations and Warranties of Buyers
(a) Organization of Buyer
(b) Authorization of Transaction
(c) Noncontravention
(d) Broker's Fees
(e) Investment
(f) Buyers' Qualifications
4. Representations and Warranties of Seller
(a) Authorization of Transaction
(b) Organization, Qualification, and Corporate Power
(c) Capitalization
(d) Noncontravention
(e) Brokers' Fees
(f) Title to Tangible Assets
(g) Financial Statements
(h) Legal Compliance
(i) Tax Matters
(j) Real Property
(k) Intellectual Property
(l) Contracts
(m) Powers of Attorney
(n) Litigation
(o) Employee Benefits
(p) No Undisclosed or Contingent Liabilities
(q) Absence of Certain Changes
i
(r) Patents, Trade Names, Trademarks, Etc.
(s) Insurance
(t) Products
(u) Environmental Protection
5. Pre-Closing Covenants
(a) General
(b) Notices and Consents
(c) Operation of Business
(d) Full Access
(e) Notice of Developments
(f) Exclusivity
6. Post-Closing Covenants
(a) General
(b) Litigation Support
(c) Rights Offering
(d) Repurchase of Shares from Buyers
(e) Reservation of Shares
(f) Registration Rights
(g) Delivery of Resolutions Adopted
(h) Negative Covenants
7. Additional Conditions Precedent
(a) Conditions to Obligation of Buyers
(b) Conditions to Obligation of Sellers
8. Remedies for Breaches of This Agreement
(a) Survival of Representations and Warranties
(b) Indemnification Provisions for Benefit of Buyers
(c) Indemnification Provisions for Benefit of Seller
(d) Matters Involving Third Parties
(e) Determination of Adverse Consequences
(f) Other Indemnification Provisions
9. Termination
(a) Termination of Agreement
(b) Effect of Termination
10. Miscellaneous
(a) Press Releases and Public Announcements
(b) No Third Party Beneficiaries
(c) Entire Agreement
(d) Succession and Assignment
(e) Counterparts
(f) Headings
(g) Notices
(h) Governing Law
(i) Amendments and Waivers
(j) Severability
(k) Expenses
ii
(l) Construction
(m) Incorporation of Exhibits, Annexes, and Schedules
Exhibit A--Historical Financial Statements
Exhibit B--Form of Common Stock Purchase Warrants
Exhibit C--Form of Opinion of Counsel to Seller
Exhibit D--Form of Buyers' Officer Certificates
Exhibit E--Certificate of Incorporation of Seller
Exhibit F--By-laws of Seller
Exhibit G--Proxy Statement of Seller
Exhibit H--Financial Statements of Seller
Schedule 4(c) Capitalization
Exhibit 4(c)(1) Agreement of Physicians Insurance Company of Ohio
Exhibit 4(c)(2) Agreement of PICO Holdings, Inc.
Schedule 4(d) Noncontravention
Exhibit 4(d)(1) Written Consent of Physicians Insurance Company of Ohio
Exhibit 4(d)(2) Written Consent of PICO Holdings, Inc.
Schedule 4(k) Intellectual Property
Schedule 4(l) Contracts
Schedule 4(m) Powers of Attorney
Schedule 4(n) Litigation
Schedule 4(o) Employee Benefit Plans
Schedule 4(p) Undisclosed or Contingent Liabilities
Schedule 4(q) Absence of Certain Changes
Schedule 4(r) Patents, Trademarks, Trade Names, Etc.
Schedule 4(s) Insurance
Schedule 4(t) Products
Schedule 6(h) Transactions with Affiliates
iii
STOCK AND WARRANT PURCHASE AGREEMENT
Agreement entered into as of October 15, 1997, by and between Imprimis
Investors LLC, a limited liability company organized under the laws of the
State of Delaware, and Wexford Spectrum Investors LLC, a limited liability
company organized under the laws of the State of Delaware (each,
individually, a "Buyer" and, collectively, the "Buyers") and PC Quote, Inc.,
a Delaware corporation (the "Seller"). Buyers and Seller are referred to
collectively herein as the "Parties."
This Agreement contemplates a transaction in which Buyers will purchase
from Seller, and Seller will sell to Buyer, up to an aggregate of five
million shares of Seller's common stock, par value $0.001 per share (the
"Common Stock"), and warrants to purchase up to an additional 1,000,000
shares of Seller's Common Stock for an aggregate purchase price of up to $5
million. Up to four million of such shares of Common Stock shall be
repurchased by Seller from Buyers under certain circumstances set forth
herein at a purchase price of $1.00 per share.
Now, therefore, in consideration of the premises and the mutual promises
herein made, and in consideration of the representations, warranties and
covenants herein contained, the Parties agree as follows:
1. DEFINITIONS.
"ACCREDITED INVESTOR" has the meaning set forth in Regulation D promulgated
under the Securities Act.
"ADDITIONAL WARRANTS" shall mean the Common Stock Purchase Warrants in the
aggregate entitling Buyer to purchase up to 500,000 Shares at an exercise price
of $2.00 per Share, exercisable at any time prior to the fifth anniversary of
this Agreement, each substantially in the form attached hereto as Exhibit B.
"ADVERSE CONSEQUENCES" means all actions, suits, proceedings, hearings,
investigations, charges, complaints, claims, demands, injunctions, judgments,
orders, decrees, rulings, damages, dues, penalties, fines, costs, reasonable
amounts paid in settlement, liabilities, obligations, taxes, liens, losses,
expenses and fees, including court costs and reasonable attorneys' fees and
expenses.
"AFFILIATE" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Securities Exchange Act.
"AFFILIATED GROUP" means any affiliated group within the meaning of Code
Section 1504.
"BUYER" and "Buyers" have the meanings set forth in the preface above.
"CLOSING DATE" shall mean either the First Closing Date, the Second Closing
Date or the Third Closing Date, as the context may require.
"CODE" means the Internal Revenue Code of 1986, as amended.
"CONFIDENTIAL INFORMATION" means any information concerning the businesses
and affairs of Seller that is not already generally available to the public.
"EMPLOYEE BENEFIT PLAN" means any (a) nonqualified deferred compensation or
retirement plan or arrangement which is an Employee Pension Benefit Plan, (b)
qualified defined contribution retirement plan or arrangement which is an
Employee Pension Benefit Plan, (c) qualified defined benefit retirement plan or
arrangement which is an Employee Pension Benefit Plan (including any
Multiemployer Plan), or (d) Employee Welfare Benefit Plan or material fringe
benefit plan or program.
"EMPLOYEE PENSION BENEFIT PLAN" has the meaning set forth in ERISA Section
3.
"EMPLOYEE WELFARE BENEFIT PLAN" has the meaning set forth in ERISA Section
3.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"FINANCIAL STATEMENTS" has the meaning set forth in Section 4(g) below.
"FIRST CLOSING DATE" shall mean October 15, 1997.
"GAAP" means United States generally accepted accounting principles as in
effect from time to time.
"INCOME TAX" means any federal, state, local, or foreign income tax,
including any interest, penalty, or addition thereto, whether disputed or not.
"INCOME TAX RETURN" means any return, declaration, report, claim for
refund, or information return or statement relating to Income Taxes, including
any schedule or attachment thereto.
"INDEMNIFIED PARTY" has the meaning set forth in Section 8 below.
"INDEMNIFYING PARTY" has the meaning set forth in Section 8 below.
"INITIAL WARRANTS" shall mean the Common Stock Purchase Warrants entitling
Buyers to purchase up to 500,000 Shares at an exercise price of $2.00 per Share,
exercisable at any time prior to the fifth anniversary of this Agreement,
substantially in the form attached hereto as Exhibit B.
"KNOWLEDGE" means actual knowledge without independent investigation.
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"MULTIEMPLOYER PLAN" has the meaning set forth in ERISA Section 3(37).
"ORDINARY COURSE OF BUSINESS" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity and
frequency).
"PARTY" has the meaning set forth in the preface above.
"PBGC" means the Pension Benefit Guaranty Corporation.
"PERSON" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization, a governmental entity (or any
department, agency, or political subdivision thereof) or any entity similar to
any of the foregoing.
"PURCHASE PRICE" has the meaning set forth in Section 2 below.
"REPORTABLE EVENT" has the meaning set forth in ERISA Section 4043.
"RIGHTS OFFERING" shall have the meaning set forth in Section 6 below.
"SECOND CLOSING DATE" shall mean October 20, 1997.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITIES EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"SECURITY INTEREST" means any mortgage, pledge, lien, encumbrance, charge,
or other security interest, other than (a) mechanic's, materialmen's, and
similar liens, (b) liens for taxes not yet due and payable[or for taxes that the
taxpayer is contesting in good faith through appropriate proceedings, (c)
purchase money liens and liens securing rental payments under capital lease
arrangements, and (d) other liens arising in the Ordinary Course of Business and
not incurred in connection with the borrowing of money.
"SELLER" has the meaning set forth in the preface above.
"SHAREHOLDERS MEETING" shall mean Seller's 1997 Annual Meeting to be held
October 16, 1997 or the date upon which such meeting may be reconvened due to
adjournment or postponement of such meeting.
"SHARES" means Seller's shares of Common Stock.
"THIRD CLOSING DATE" shall mean a date agreed to by the Parties, but in no
event later than seven days after the Shareholders Meeting; provided the
shareholders vote to approve the proposal to increase Seller's capital stock.
3
"THIRD PARTY CLAIM" has the meaning set forth in Section 8 below.
"WARRANTS" shall mean the Initial Warrants and the Additional Warrants.
2. PURCHASE AND SALE OF SHARES AND WARRANTS. On the Closing Dates, in
the manner set forth in this Section 2, upon the terms set forth in this
Agreement, and in reliance on the representations and warranties contained
herein, Seller will sell, transfer and deliver to Buyers, and Buyers will
purchase from Seller, up to 5,000,000 Shares and the Initial Warrants for an
aggregate purchase price (the "Purchase Price") of up to $5,000,000, in all
cases free and clear of all interests, liens, charges, encumbrances, equities,
claims, assessments and options of whatever nature; except with respect to the
Warrants, for the exercise price of the Warrants as detailed herein:
(a) On the First Closing Date, as a condition precedent to such closing,
(i) Seller shall deliver to Buyers the following:
(A) stock certificates representing an aggregate of 1,450,000
Shares in such names and denominations as Buyers shall jointly
instruct Seller;
(B) the Initial Warrants in such names and denominations as
Buyers shall jointly instruct Seller;
(C) an opinion of Seller's counsel substantially in the form of
Exhibit C hereto;
(ii) Seller shall deliver to an escrow agent to be selected by Seller
with the advice and consent of Buyers (the "Escrow Agent"), Additional
Warrants entitling Buyers (under certain circumstances) to purchase up to
145,000 Shares on the same terms as the Initial Warrants; and
(iii) Buyers shall deliver to Seller the following:
(A) officers' certificates substantially in the form of
Exhibit D hereto;
(B) a certified check or wire transfer in the amount of
$1,450,000.
(b) On the Second Closing Date, as a condition precedent to such closing,
(i) Seller shall deliver to Buyers the following:
(A) stock certificates representing an aggregate of 550,000
Shares in such names and denominations as Buyers shall jointly
instruct Seller;
4
(B) an opinion of Seller's counsel substantially in the form of
Exhibit C hereto;
(ii) Seller shall deliver to the Escrow Agent, Additional Warrants
entitling Buyers (under certain circumstances) to purchase up to 55,000
Shares on the same terms as the Initial Warrants; and
(iii) Buyers shall deliver to Seller the following:
(A) officers' certificates substantially in the form of
Exhibit D hereto;
(B) a certified check or wire transfer in the amount of
$550,000.
(c) On the Third Closing Date, provided that the number of Shares
authorized for issuance by Seller has been sufficiently increased at the
Shareholders Meeting, as a condition precedent to such closing,
(i) Seller shall deliver to Buyers the following:
(A) stock certificates representing 3,000,000 Shares in such
names and denominations as Buyers shall jointly instruct Seller;
(B) an opinion of Seller's counsel substantially in the form of
Exhibit C hereto;
(ii) Seller shall deliver to the Escrow Agent, Additional Warrants
entitling Buyers (under certain circumstances) to purchase up to 300,000
Shares on the same terms as the Initial Warrants; and
(iii) Buyers shall deliver to Seller the following:
(A) officers' certificates substantially in the form of
Exhibit D hereto;
(B) a certified check or wire transfer in the amount of
$3,000,000.
3. REPRESENTATIONS AND WARRANTIES OF BUYERS. Each Buyer represents and
warrants to Seller that the statements contained in this Section 3 are true,
correct and complete as of the date of this Agreement and will be true,
correct and complete as of each Closing Date (as though made on and as of
such Closing Date as if such Closing Date were substituted for the date of
this Agreement throughout this Section 3).
(a) ORGANIZATION OF BUYERS. Each Buyer is a limited liability company
duly organized, validly existing, and in good standing under the laws of
the State of Delaware.
5
(b) AUTHORIZATION OF TRANSACTION. Each Buyer has full power and
authority to execute and deliver this Agreement and to perform its
obligations hereunder. This Agreement constitutes the valid and legally
binding obligation of each Buyer, enforceable in accordance with its terms.
Neither Buyer needs to give any notice to, make any filing with, or obtain
any authorization, consent or approval of any government or governmental
agency in order to consummate the transactions contemplated by this
Agreement.
(c) NONCONTRAVENTION. To the Knowledge of each Buyer, neither the
execution and delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, will (A) violate any constitution,
statute, regulation, rule, injunction, judgment, order, decree, ruling,
charge, or other restriction of any government, governmental agency, or
court to which either Buyer is subject or any provision of its
Certificate of Limited Liability Company or Limited Liability Company Agreement
or (B) conflict with, result in a breach of, constitute a default under, result
in the acceleration of, create in any party the right to accelerate, terminate,
modify, or cancel, or require any notice under any agreement, contract, lease,
license, instrument, or other arrangement to which either Buyer is a party or by
which it is bound or to which any of its assets is subject.
(d) BROKERS' FEES. Neither Buyer has any liability or obligation to
pay any fees or commissions to any broker, finder, or agent with respect to
the transactions contemplated by this Agreement for which Seller could
become liable or obligated.
(e) INVESTMENT. Buyers are acquiring the Shares and the Warrants for
investment purposes and not with a view to or for sale in connection with
any distribution thereof within the meaning of the Securities Act.
(f) BUYERS' QUALIFICATIONS. Each Buyer (a) has such knowledge and
experience in financial and business matters that it is capable of
evaluating the merits and risks of its investment in Seller and (b) has had
the opportunity to ask questions of, and receive answers from, Seller and
its management concerning the terms and conditions of the offering of the
Shares and the Warrants hereunder and to obtain additional information; and
(c) is an Accredited Investor.
4. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents and
warrants to Buyers that the statements contained in this Section 4 are true,
correct and complete as of the date of this Agreement and will be true,
correct and complete as of each Closing Date (as though made on and as of
such Closing Date as if such Closing Date were substituted for the date of
this Agreement throughout this Section 4).
(a) AUTHORIZATION OF TRANSACTION. Seller has full corporate power and
authority to execute and deliver this Agreement and the other documents and
instruments to be executed and delivered by Seller pursuant to this Agreement
and the transactions contemplated hereby and to perform its obligations
hereunder and thereunder. This Agreement and the other
6
documents and instruments to be executed and delivered by Seller pursuant to
this Agreement and the transactions contemplated hereby constitute the valid
and legally binding obligations of Seller enforceable in accordance with
their respective terms.
(b) ORGANIZATION, QUALIFICATION, AND CORPORATE POWER. Seller is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Delaware. Seller is duly authorized to conduct business
and is in good standing under the laws of each jurisdiction where such
qualification is required, except where the lack of such qualification would
not have a material adverse effect on the condition (financial or otherwise)
of Seller. Seller has full corporate power and authority to carry on the
businesses in which it is engaged and to own and use the properties and
assets owned and used by it. Seller has no subsidiaries. Attached hereto as
Exhibit E and Exhibit F, respectively, are true and correct copies of the
Certificate of Incorporation and By-laws of Seller, each as in effect on each
Closing Date. Attached hereto as Exhibit G is Seller's Proxy Statement, used
in connection with its Annual Meeting which sets forth Seller's proposal to
amend its Certificate of Incorporation.
(c) CAPITALIZATION. The entire authorized capital stock of Seller
consists of 10,000,000 Shares, of which 7,414,150 Shares are issued and
outstanding and 644,000 Shares are held in treasury; and 976,428 Shares of
Preferred Stock, $1.312704617 par value, none of which are outstanding. All
of the issued and outstanding Shares have been duly authorized, are validly
issued, fully paid, and nonassessable. Except as set forth in Schedule 4(c)
hereto, there are no outstanding or authorized options, warrants, purchase
rights, subscription rights, conversion rights, exchange rights, or other
contracts or commitments that could require Seller to issue, sell, or
otherwise cause to become outstanding any of its capital stock. All such
options, warrants (including the Warrants), purchase rights, subscription
rights, conversion rights, exchange rights or other contracts or commitments
and the Shares issuable upon exercise thereof have been duly authorized, and
when issued in accordance with their terms will be validly issued, fully paid
and non-assessable. There are no preemptive or first refusal or similar
rights binding on Seller to subscribe for or purchase from Seller any Shares
pursuant to any provisions of law, the Certificate of Incorporation or
By-laws of Seller or by agreement or otherwise. There are no outstanding or
authorized stock appreciation, phantom stock, profit participation, or
similar rights with respect to the Shares.
(d) NONCONTRAVENTION. Except as set forth in Schedule 4(d) hereto, to
the Knowledge of Seller, neither the execution and delivery of this
Agreement, nor consummation of the transactions contemplated hereby, will (i)
violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which Seller is subject or any provision of
the Certificate of Incorporation or By-laws of Seller or (ii) conflict with,
result in breach of, constitute a default under, result in the acceleration
of, create in any party the right to accelerate, terminate, modify, or
cancel, or require any notice under any agreement, contract, lease, license,
instrument, or other arrangement to which Seller is a party or by which
Seller is bound or to which Seller or its assets is subject (or result in the
imposition of any Security Interest upon any of its assets), except where the
violation, conflict, breach, default, acceleration, termination,
modification, cancellation, failure to give notice, or Security Interest
7
would not have a material adverse effect on the condition (financial or
otherwise) of Seller or on the ability of the Parties to consummate the
transactions contemplated by this Agreement. Except as set forth in Schedule
4(d) hereto, Seller does not need to give any notice to, make any filing
with, or obtain any authorization, consent, or approval of any government or
governmental agency in order for the Parties to consummate the transactions
contemplated by this Agreement, except where the failure to give notice, to
file, or to obtain any authorization, consent, or approval would not have a
material adverse effect on the condition (financial or otherwise) of Seller
or on the ability of the Parties to consummate the transactions contemplated
by this Agreement.
(e) BROKERS' FEES. Seller does not have any liability or obligation to
pay any fees or commissions to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement.
(f) TITLE TO TANGIBLE ASSETS. Seller has good title to, or a valid
leasehold interest in, the tangible assets it uses regularly in the conduct of
its businesses.
(g) FINANCIAL STATEMENTS. Attached hereto as Exhibit E are copies of
Seller's annual report on Form 10-K for the year ended December 31, 1996 and
its Quarterly Report on Form 10-Q for each of the quarters ended March 31,
1997 and June 30, 1997. Included in such reports are the following financial
statements (collectively the "Financial Statements"): (i) audited
consolidated balance sheets for the years ending December 31, 1996 and 1995
and statements of income, changes in stockholders' equity, and cash flow as
of and for the years ended December 31, 1996, 1995 and 1994 for the Company;
and (ii) unaudited balance sheets and statements of income, changes in
stockholders' equity, and cash flow as of and for the quarters ended March
31, 1997 and June 30, 1997 (the "QUARTERLY FINANCIAL STATEMENTS"). The
Financial Statements (including the notes thereto) have been prepared in
accordance with GAAP applied on a consistent basis throughout the periods
covered thereby and present fairly the financial condition of Seller as of
such dates and the results of operations of Seller for such periods;
PROVIDED, HOWEVER, that the Quarterly Financial Statements are subject to
normal year-end adjustments and lack footnotes and other presentation items.
(h) LEGAL COMPLIANCE. Seller has complied with all applicable laws
(including rules, regulations, codes, plans, injunctions, judgments, orders,
decrees, rulings, and charges thereunder) of federal, state, local, and
foreign governments (and all agencies thereof), except where the failure to
comply would not have a material adverse effect upon the condition (financial
or otherwise) of Seller.
(i) TAX MATTERS.
(i) Seller has filed all Income Tax Returns that it was required to
file, and has paid all Income Taxes shown thereon as owing, except where
the failure to file Income Tax Returns or to pay Income Taxes would not
have a material adverse effect on the condition (financial or otherwise) of
Seller.
8
(ii) Seller has not waived any statute of limitations in respect of
Income Taxes or agreed to any extension of time with respect to an Income
Tax assessment or deficiency.
(iii) Seller is not a party to any Income Tax allocation or
sharing agreement.
(j) REAL PROPERTY
Seller does not own any real property.
(k) INTELLECTUAL PROPERTY. Schedule 4(k) herein identifies each
application for registration which Seller has made with respect to any of its
intellectual property, and identifies each license, agreement, or other
permission which Seller has granted to any third party with respect to any of
its intellectual property.
(l) CONTRACTS. Schedule 4(l) herein lists all written contracts and other
written agreements to which Seller is a party the performance of which will
involve consideration in excess of $100,000 per year. Seller has made available
to Buyer a correct and complete copy of each contract or other agreement listed
in Schedule 4(l) hereto.
(m) POWERS OF ATTORNEY. Except as set forth in Schedule 4(m), there are
no outstanding powers of attorney executed on behalf of Seller.
(n) LITIGATION. Schedule 4(n) hereto sets forth each instance in which
Seller (i) is subject to any outstanding injunction, judgment, order, decree,
ruling, or charge or (ii) is a party to any action, suit, proceeding,
hearing, or investigation of, in, or before any court or quasi-judicial or
administrative agency of any federal, state, local, or foreign jurisdiction,
except where the injunction, judgment, order, decree, ruling, action, suit,
proceeding, hearing, or investigation would not have a material adverse
effect on the condition (financial or otherwise), assets, liabilities,
earnings or business of Seller. Except as set forth in Schedule 4(n) hereto,
Seller does not know nor have any reason to know of any basis for any such
claim, action, suit, proceeding or investigation and no such claim, action,
suit, proceeding or investigation has been pending during the two-year period
preceding the date hereof.
(o) Employee Benefits.
(i) Schedule 4(o) hereto lists each Employee Benefit Plan that is
sponsored, maintained or contributed to or required to be contributed to by
the Seller or by any trade or business, whether or not incorporated (an
"ERISA Affiliate"), that together with the Seller would be deemed a "single
employer" within the meaning of Section 4001(b) of ERISA.
(A) Each such Employee Benefit Plan (and each related trust,
insurance contract, or fund) complies in form and in operation in all
respects
9
with the applicable requirements of ERISA and the Code, except where
the failure to comply would not have a material adverse effect on the
condition (financial or otherwise) of Seller.
(B) All contributions (including all employer contributions and
employee salary reduction contributions) which are due have been paid
to each such Employee Benefit Plan which is an Employee Pension
Benefit Plan.
(C) Each such Employee Benefit Plan which is an Employee Pension
Benefit Plan has received a determination letter from the Internal
Revenue Service to the effect that it meets the requirements of Code
Section 401(a).
(D) Seller has made available to Buyer correct and complete
copies of the plan documents and summary plan descriptions, the most
recent determination letter received from the Internal Revenue
Service, the most recent Form 5500 Annual Report, and all related
trust agreements, insurance contracts, and other funding agreements
which implement each such Employee Benefit Plan.
(E) No such Employee Benefit Plan which is an Employee Pension
Benefit Plan (other than any Multiemployer Plan) has been completely
or partially terminated or been the subject of a Reportable Event as
to which notices would be required to be filed with the PBGC. No
proceeding by the PBGC to terminate any such Employee Pension Benefit
Plan (other than any Multiemployer Plan) has been instituted.
(F) No action, suit, proceeding, hearing, or investigation with
respect to the administration or the investment of the assets of any
such Employee Benefit Plan (other than routine claims for benefits) is
pending, except where the action, suit, proceeding, hearing, or
investigation would not have a material adverse effect on the
condition (financial or otherwise) of Seller.
(G) Neither Seller nor any ERISA Affiliate has incurred any
liability to the PBGC (other than PBGC premium payments) or otherwise
under Title IV of ERISA (including any withdrawal liability) with
respect to any such Employee Benefit Plan which is an Employee Pension
Benefit Plan.
(H) The aggregate withdrawal liability of Seller and any and all
ERISA Affiliates, computed as if a complete withdrawal by Seller and
such ERISA Affiliates had occurred under each Multiemployer Plan on
the date hereof, would not exceed $10,000.
(p) NO UNDISCLOSED OR CONTINGENT LIABILITIES. Except as set forth in
Schedule 4(p) hereto, Seller has no material liabilities or obligations of
any nature (absolute, accrued, contingent or otherwise) which are not fully
reflected or reserved against in Seller's Financial
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Statements, except for commercial liabilities and obligations incurred in the
ordinary course of business and consistent with past practice since the date
thereof, no one of which is in excess of, $50,000 (counting obligations and
liabilities arising from one transaction or a series of related transactions
over any three month period, and all periodic installments or payments under
any lease or other agreement providing for periodic or installment payments,
as a single obligation or liability) and Seller has no Knowledge of any basis
for the transaction against it of any liability or obligation of any nature
whatsoever not fully reflected or reserved against in the Financial
Statements or set forth in Schedule 4(p) hereto.
(q) ABSENCE OF CERTAIN CHANGES. With respect to the business of Seller,
except as and to the extent set forth in Schedule 4(q) hereto, since July 31,
1997, Seller has not:
(i) suffered any material adverse change in its condition (financial
or otherwise), assets, liabilities (absolute, accrued, contingent or
otherwise), business, prospects or operations, or experienced any labor
difficulty, or suffered any casualty loss (whether or not insured);
(ii) incurred any obligations or liabilities of any nature (whether
absolute, accrued, contingent or otherwise and whether due or to become
due) other than obligations and liabilities incurred in the ordinary course
of business and consistent with past practice no one of which is in excess
of $50,000 (counting obligations and liabilities arising from one
transaction or a series of related transactions over any three month
period, and all periodic installments or payments under any lease or other
agreement providing for periodic installments or payments, as a single
obligation or liability) or experienced any change in any assumptions
underlying or methods of calculating any bad debt, contingency or other
reserves;
(iii) paid, discharged or satisfied any claim, lien, encumbrance
or liability (whether absolute, accrued, contingent or otherwise and
whether due or to become due), other than claims, liens, encumbrances or
liabilities (i) which are reflected or reserved against in the Financial
Statements, and which were paid, discharged or satisfied since the date of
the most recent Financial Statements in the ordinary course of business and
consistent with past practice, or (ii) which were incurred and paid,
discharged or satisfied since the date of the most recent Financial
Statements in the ordinary course of business and consistent with past
practice;
(iv) permitted or allowed any of the properties or assets, real,
principal or mixed, tangible or intangible, of or used by Seller, to be
mortgaged, pledged or subjected to any lien or encumbrance;
(v) written down or written up the value of any inventory, or written
off as uncollectible any notes or accounts receivable or any portion
thereof, except for write-downs, write-ups and write-offs in the ordinary
course of business consistent with past practice;
11
(vi) cancelled any other debts or claims, or waived any rights of
substantial value, or sold, transferred or otherwise disposed of any of the
properties or assets, real, personal or mixed, tangible or intangible,
except in the ordinary course of business and consistent with past
practice;
(vii) disposed of or permitted to lapse any patent, trademark,
assumed name, service ▇▇▇▇, trade name or copyright application or license
or under which Seller has any right or license, or disposed of or disclosed
to any person any trade secret, formula, process or know-how of Seller or
under which Seller has any right or license;
(viii) granted any general uniform increase in the compensation of
employees (including, without limitation, any increase or change pursuant
to any bonus, pension, profit-sharing, retirement or other plan or
commitment), or any increase in any such compensation payable or to become
payable to any officer or employee thereof; and no such increase (whether
general or otherwise) is required;
(ix) made any single capital expenditure or commitment in excess of
$50,000 for additions to property, plant or equipment, or made aggregate
capital expenditures or commitments in excess of $250,000 for additions to
property, plant or equipment;
(x) made any change in any method of accounting or accounting
practice or policy; made any loan or advance (other than advances to
employees in the ordinary course of business or travel and expenses
disbursement in accordance with the past practice, but not in excess of
$3,000 at any one time outstanding) to any person who is an officer,
director or employee of Seller;
(xi) declared or paid any dividend or purchased any of its
outstanding shares of capital stock;
(xii) agreed, whether in writing or otherwise, to take any of the
actions set forth in this Section 4(q);
(r) PATENTS, TRADE NAMES, TRADEMARKS, ETC. With respect to Seller's
business, Schedule 4(r) hereto sets forth an accurate and complete
description of all patents, trademarks, trade names, assumed names,
copyrights, technology, know-how, formulae and processes, and all
applications therefor, presently owned or held by Seller, under which Seller
owns or holds any license or other interest. The name "PC Quote, Inc." and
such other names and marks as are designated in Schedule 4(r) hereto and the
use thereof by Seller, do not, to the Seller's Knowledge, infringe on any
patents, trademarks or copyrights or any other rights of any person. Seller
does not know nor have any reason to believe that there are any claims of
third parties to the use of any such names or any similar names, and there is
no basis for any such claim or claims. Except as set forth in Schedule 4(r)
hereto, Seller has the sole and exclusive right to use the patents,
trademarks, trade names, copyrights, technology, know-how, formulae and
processes referred to in such Schedule 4(r), and the consummation of the
transactions contemplated hereby will not alter or impair any such rights.
No services
12
provided or products manufactured or sold by Seller, nor any patents,
formulae, processes, know-how, trade secrets, trademarks, trade names,
assumed names, copyrights or designations used in its business, infringe on
any patents, trademarks or copyrights, or any other rights of any person or
corporate entity, and no claims have been made against Seller in such
connection except as disclosed on Schedule 4(n) hereto.
(s) INSURANCE. Schedule 4(s) hereto sets forth a complete and accurate
list and description, including but not limited to annual premiums thereon
and the deductibles thereunder, of all policies of fire, comprehensive
general liability including product liability and worker's compensation
insurance presently in effect with respect to Seller, two copies of which
have heretofore been delivered to Buyer. All such policies are valid,
outstanding and enforceable policies and provide insurance coverage for the
properties, assets and operations of Seller of the kinds, in the amounts and
against the risks customarily maintained by organizations similarly situated.
Seller has not been refused any insurance with respect to any aspect of its
operations, nor has its coverage been limited by any insurance carrier to
which it has applied for insurance or with which it has carried insurance
during the last three years.
(t) PRODUCTS.
1. Except as set forth in Schedule 4(t) hereto, there exists no
set of facts (i) which could furnish a basis for the recall, withdrawal,
suspension or cancellation of any product registration, product license,
manufacturing license, wholesale dealers license, export license or other
governmental license, approval or consent of any governmental or regulatory
agency with respect to any product developed, manufactured, distributed or
sold by Seller (a "Product"), (ii) which could furnish a basis for the
recall, withdrawal or suspension by order of any state, federal or foreign
court of law of any Product, or (iii) which could have a material adverse
effect on the continued operation of any facility of Seller or which could
otherwise cause Seller to recall, withdraw or suspend any such Product from
the market or to change the marketing clarification of any such Product.
2. Each product manufactured by Seller has in all material
respects been manufactured in accordance with the specifications under which
such Product normally is and has been manufactured and the provisions of all
applicable laws or regulations including, without limitation, any applicable
governmental regulatory authorities.
(u) ENVIRONMENTAL PROTECTION.
In connection with its business operations, Seller has obtained all
permits, licenses and other authorizations which are required under federal,
state and local laws relating to pollution or protection of the environment,
including laws relating to emissions, discharges, releases or threatened
releases of pollutants, contaminants, or hazardous or toxic materials or
wastes into ambient air, surface water, ground water, or land, or otherwise
relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport, or handling of pollutants, contaminants or
hazardous or toxic materials or wastes; to the best of its knowledge after
due investigation, Seller is in compliance in all material respects with all
13
terms and conditions of the required permits, licenses and authorizations,
and is also in compliance in all material respects with all other
limitations, restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules and timetables contained in those laws or contained in
any regulation, code, plan, order, decree, judgment, notice or demand latter
issued, entered, promulgated or approved thereunder. Seller is not aware of,
and has not received notice of, past, present or future events, conditions,
circumstances, activities, practices, incidents, actions or plans which may
interfere with or prevent continued compliance, or which may give rise to any
common law or legal liability, or otherwise form the basis of any claim,
action, suit, proceeding, hearing or investigation, based on or related to
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport, or handling, or the omission, discharge, release or threatened
release into the environment, of any pollutant, contaminant, or hazardous or
toxic material or waste.
5. PRE-CLOSING COVENANTS. The Parties agree as follows with respect to
the period between the execution of this Agreement and (i) each Closing Date or
(ii) termination of this Agreement.
(a) GENERAL. Each of the Parties will use his or its reasonable best
efforts to take any action and to do all things reasonably necessary in order to
consummate and make effective the transactions contemplated by this Agreement
(including satisfaction, but not waiver, of the conditions precedent to closing
set forth in Section 2 and Section 7 hereof).
(b) NOTICES AND CONSENTS. Seller will give any notices to third parties,
and will use its reasonable best efforts to obtain any third party consents,
that Buyers reasonably may request in connection with the matters referred to in
Section 4(d) above.
(c) OPERATION OF BUSINESS. Except for transactions contemplated hereby,
Seller will not engage in, take any action, or enter into any transaction
outside the Ordinary Course of Business.
(d) FULL ACCESS. Seller will permit representatives of Buyers to have
full access at all reasonable times, and in a manner so as not to interfere
with the normal business operations of Seller, to all premises, properties,
personnel, books, records (including tax records), contracts, and documents
of or pertaining to Seller. Buyers will treat and hold as such any
Confidential Information received from Seller in the course of the reviews
contemplated by this Section 5(d), will not use any of the Confidential
Information except in connection with this Agreement, and, if this Agreement
is terminated for any reason whatsoever, will return to Seller all tangible
embodiments (and all copies) of the Confidential Information which are in its
possession.
(e) NOTICE OFDEVELOPMENTS. Seller shall notify Buyers of any
development causing a breach of any of the representations and warranties in
Section 4 above. Unless Buyers have the right to terminate this Agreement
pursuant to Section 9(a)(ii) below by reason of the development and exercise
that right within the period referred to in Section 9(a)(ii) below, the
written notice pursuant to this Section 5(e)(i) will be deemed to have
amended the relevant Schedule, if any, to have
14
qualified the representations and warranties contained in Section 4 above,
and to have cured any misrepresentation or breach of warranty that otherwise
might have existed hereunder by reason of the development.
(f) EXCLUSIVITY. Until twenty-eight days from the date hereof, Seller
shall not solicit, initiate, or encourage the submission of any proposal or
offer from any Person relating to the acquisition of all or substantially all of
the capital stock or assets of Seller (including any acquisition structured as a
merger, consolidation, or share exchange); PROVIDED, HOWEVER, that Seller and
its directors and officers will remain free to participate in any discussions or
negotiations regarding, furnish any information with respect to, assist or
participate in, or facilitate in any other manner any effort or attempt by any
Person to do or seek any of the foregoing to the extent their fiduciary duties
may require and shall keep Buyers informed thereof.
6. POST-CLOSING COVENANTS. The Parties agree as follows with respect to
the period following the Closing.
(a) GENERAL. In case at any time after any Closing Date any further
action is necessary to carry out the purposes of this Agreement, each of the
Parties will take such further action (including the execution and delivery of
such further instruments and documents) as any other Party reasonably may
request, all at the sole cost and expense of the requesting party (unless the
requesting Party is entitled to indemnification therefor under Section 8 below).
(b) LITIGATION SUPPORT. In the event and for so long as any Party
actively is contesting or defending against any action, suit, proceeding,
hearing, investigation, charge, complaint, claim, or demand in connection with
(i) any transaction contemplated under this Agreement or (ii) any fact,
situation, circumstance, status, condition, activity, practice, plan,
occurrence, event, incident, action, failure to act, or transaction on or prior
to any Closing Date involving Seller, each of the other Parties shall cooperate
with him or it and his or its counsel in the defense or contest, make available
their personnel, and provide such testimony and access to their books and
records as shall be necessary in connection with the defense or contest, all at
the sole cost and expense of Seller (unless the contesting or defending Party is
entitled to indemnification therefor under Section 8 below).
(c) RIGHTS OFFERING. Seller shall use its best efforts to prepare, file
with the Securities and Exchange Commission and have declared effective a
Registration Statement covering an offering of rights to its existing
stockholders (other than Buyers) to subscribe for the purchase of one
additional Share for each Share of Seller owned by such stockholders as of
the record date. In the event the Rights Offering is not completed on or
before January 24, 1998, Buyers shall receive from the Escrow Agent
Additional Warrants to purchase up to an aggregate of 250,000 shares. In the
event the Rights Offering is not completed on or before February 28, 1998,
Buyers shall have the right, in their discretion, (i) to extend the time for
completion of the Rights Offering, or (ii) to (A) terminate Seller's
obligation to complete the Rights Offering and (B) terminate Seller's right
to repurchase from Buyers four million of the
15
Shares purchased by Buyers hereunder and (C) receive from the Escrow Agent
Additional Warrants to purchase up to an aggregate of 250,000 Shares.
(d) REPURCHASE OF SHARES FROM BUYERS. Seller covenants and agrees that
the proceeds from the sale of the first 4 million Shares sold by Seller pursuant
to the Rights Offering will be used to repurchase 4 million Shares from Buyers
at a price to Seller of $1.00 per Share.
(e) RESERVATION OF SHARES. Seller will reserve a sufficient number of
Shares for issuance upon the exercise of the Warrants and the other options,
etc. set forth in Schedule 4(b) hereto.
(f) REGISTRATION RIGHTS. As soon as practicable after the First Closing
Date, Seller shall use its best efforts to register with the Securities and
Exchange Commission one million of the Shares purchased by Buyers hereunder on a
Registration Statement on Form S-3 (if appropriate) and, in the event the Rights
Offering is not completed, to amend such Registration Statement to include the
remaining Shares purchased by Buyers hereunder. Buyers agree to cooperate fully
in such registration effort.
(g) DELIVERY OF RESOLUTIONS ADOPTED. Seller shall deliver to Buyers
copies of any and all resolutions adopted by the shareholders of Seller at
the Shareholders Meeting.
(h) NEGATIVE COVENANTS. Seller covenants and agrees that, until the
earlier of (i) such time as Seller completes the Rights Offering and repurchases
from Buyers four million Shares as contemplated by Section 6(d) hereof or (ii)
February 28, 1998, Seller will not do any of the following without the prior
written consent of Buyers, which shall not be unreasonably withheld:
(i) DISPOSITIONS. Convey, sell, lease, transfer or otherwise dispose
of (each of the foregoing, a "Transfer"), all or any part of its business
or property, other than: (i) Transfers of non-exclusive licenses and
similar arrangements for the use of Seller's services; or (ii) Transfers of
worn-out or obsolete equipment.
(ii) MERGERS OR ACQUISITIONS. Merge or consolidate with or into any
other business organization, or acquire all or substantially all of the
capital stock or property of another Person.
(iii) DISTRIBUTIONS. Pay any dividends or make any other
distribution or payment on account of or in redemption, retirement or
purchase of any capital stock except with respect to any obligations in
existence as of the date hereof and set forth on Schedule 6(h) hereto.
(iv) TRANSACTIONS WITH AFFILIATES. Directly or indirectly enter into
or permit to exist any material transaction with any Affiliate of Seller
except for transactions set forth in Schedule 6(h) hereto involving
agreements that are in place at the date hereof
16
or that are in the ordinary course of Seller's business, upon fair and
reasonable terms that are no less favorable to Seller than would be
obtained in an arm's length transaction with a nonaffiliated Person.
7. ADDITIONAL CONDITIONS PRECEDENT.
(a) CONDITIONS TO OBLIGATION OF BUYERS. The obligation of Buyers to
consummate the transactions contemplated by this Agreement is subject to
satisfaction of the following conditions:
(i) Buyers shall have completed a reasonable due diligence
investigation satisfactory to Buyers on or before the First Closing Date;
(ii) the representations and warranties of Seller set forth in Section
4 above shall be true and correct in all material respects at and as of
each Closing Date;
(iii) Seller shall have performed and complied with all of its
covenants hereunder in all material respects through each Closing Date ;
(iv) there shall not be any injunction, judgment, order, or decree
enjoining the transactions contemplated by this Agreement;
(v) all actions to be taken by Seller in connection with
consummation of the transactions contemplated hereby and all certificates,
opinions, instruments, and other documents required to effect the
transactions contemplated hereby will be satisfactory in form and substance
to Buyers.
Buyers may waive any condition specified in this Section 7(a) upon execution of
a writing so stating at or prior to each Closing Date.
(b) CONDITIONS TO OBLIGATION OF SELLER. The obligation of Seller to
consummate the transactions contemplated by this Agreement is subject to
satisfaction of the following conditions:
(i) the representations and warranties of Buyers set forth in Section
3 above shall be true and correct in all material respects at and as of
each Closing Date;
(ii) Buyers shall have performed and complied with all of its
covenants hereunder in all material respects through each Closing Date;
(iii) there shall not be any injunction, judgment, order, decree,
ruling, or charge in effect preventing consummation of any of the
transactions contemplated by this Agreement;
17
(iv) all actions to be taken by Buyers in connection with consummation
of the transactions contemplated hereby and all certificates, opinions,
instruments, and other documents required to effect the transactions
contemplated hereby will be reasonably satisfactory in form and substance
to Seller.
Seller may waive any condition specified in this Section 7(b) if it executes a
writing so stating at or prior to each Closing Date.
8. REMEDIES FOR BREACHES OF THIS AGREEMENT.
(a) SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All of the
representations and warranties of Seller contained in Section 4 above shall
survive this Agreement and continue in full force and effect for a period of one
year thereafter.
(b) INDEMNIFICATION PROVISIONS FOR BENEFIT OF BUYERS. In the event Seller
breaches any of its representations, warranties, or covenants contained herein,
it shall so notify Buyers and provided that Buyer makes a written claim for
indemnification against Seller pursuant to Section 10 below within such survival
period, then Seller agrees to indemnify Buyers from and against the entirety of
any Adverse Consequences Buyers shall suffer through and after the date of the
claim for indemnification caused by the breach.
(c) MATTERS INVOLVING THIRD PARTIES.
(i) If any third party shall notify any Party (the "INDEMNIFIED
PARTY") with respect to any matter (a "THIRD PARTY CLAIM") which may give
rise to a claim for indemnification against any other Party (the
"INDEMNIFYING PARTY") under this Section 8, then the Indemnified Party
shall promptly (and in any event within [five business days] after
receiving notice of the Third Party Claim) notify each Indemnifying Party
thereof in writing.
(ii) Any Indemnifying Party will have the right to assume and
thereafter conduct the defense of the Third Party Claim with counsel of his
or its choice reasonably satisfactory to the Indemnified Party; provided,
HOWEVER, that the Indemnifying Party will not consent to the entry of any
judgment or enter into any settlement with respect to the Third Party Claim
without the prior written consent of the Indemnified Party (not to be
withheld unreasonably) unless the judgment or proposed settlement involves
only the payment of money damages and does not impose an injunction or
other equitable relief upon the Indemnified Party.
(iii) Unless and until an Indemnifying Party assumes the defense
of the Third Party Claim as provided in Section 8(c)(ii) above, however,
the Indemnified Party may defend against the Third Party Claim in any
manner he or it reasonably may deem appropriate.
(iv) In no event will the Indemnified Party consent to the entry of
any judgment or enter into any settlement with respect to the Third Party
Claim without the
18
prior written consent of each of the Indemnifying Parties, not to be
unreasonably withheld.
(d) DETERMINATION OF ADVERSE CONSEQUENCES. The Parties shall make
appropriate adjustments for tax benefits and insurance coverage in determining
Adverse Consequences for purposes of this Section 8. All indemnification
payments under this Section 8 shall be deemed adjustments to the Purchase Price.
(e) OTHER INDEMNIFICATION PROVISIONS. The indemnification provisions in
this Section 8 are in addition to, and not in derogation of, any statutory,
equitable, or common law remedy any Party may have for breach of representation,
warranty, or covenant.
9. TERMINATION.
(a) TERMINATION OF AGREEMENT. The Parties may terminate this Agreement as
provided below
(i) Buyers and Seller may terminate this Agreement by mutual written
consent at any time prior to the First Closing Date;
(ii) Buyers may terminate this Agreement by giving written notice to
Seller at any time prior to the First Closing Date in the event (A) Seller
has given Buyers any notice pursuant to Section 5(e) above and (B) the
development that is the subject of the notice has had, or reasonably
believes will have, a material adverse effect upon the condition (financial
or otherwise) of Seller;
(iii) Buyers may terminate this Agreement by giving written notice
to Seller at any time prior to the First Closing Date (A) in the event
Seller has breached any material representation, warranty, or covenant
contained in this Agreement in any material respect, Buyers have notified
Seller of the breach, and the breach has continued without cure for a
period of 10 days after the notice of breach or (B) if the First Closing
shall not have occurred on or before October 16, 1997, by reason of the
failure of any condition precedent under Section 2 or Section 7 hereof
(unless the failure results primarily from any breach by Buyers of any
material representation, warranty, or covenant contained in this
Agreement); and
(iv) Seller may terminate this Agreement by giving written notice to
Buyers at any time prior to the First Closing Date (A) in the event either
Buyer has breached any material representation, warranty, or covenant
contained in this Agreement in any material respect, Seller has notified
each Buyer of the breach, and the breach has continued without cure for a
period of 10 days after the notice of breach or (B) if the first Closing
shall not have occurred on or before October 15, 1997, by reason of the
failure of any condition precedent under Section 2 or Section 7 hereof
(unless the failure results primarily from Seller breaching any material
representation, warranty, or covenant contained in this Agreement).
19
(b) EFFECT OF TERMINATION. If any Party terminates this Agreement pursuant
to Section 9(a) above, all rights and obligations of the Parties hereunder shall
terminate without any liability of any Party to any other Party (except for any
liability of any Party then in breach); PROVIDED, HOWEVER, that the
confidentiality provisions contained in Section 5(d) above shall survive
termination.
10. MISCELLANEOUS.
(a) PRESS RELEASES AND PUBLIC ANNOUNCEMENTS. No Party shall issue any
press release or make any public announcement relating to the subject matter of
this Agreement prior to the First Closing Date, without the prior written
approval of Buyers and Seller; PROVIDED, HOWEVER, that any Party may make any
public disclosure it believes in good faith is required by applicable law or any
listing or trading agreement concerning its publicly-traded securities (in which
case the disclosing Party will use its reasonable best efforts to advise the
other Parties prior to making the disclosure).
(b) NO THIRD PARTY BENEFICIARIES. This Agreement shall not confer any
rights or remedies upon any Person other than the Parties and their
respective successors and permitted assigns.
(c) ENTIRE AGREEMENT. This Agreement (including the documents referred
to herein) constitutes the entire agreement among the Parties and supersedes
any prior understandings, agreements, or representations by or among the
Parties, written or oral, to the extent they have related in any way to the
subject matter hereof.
(d) SUCCESSION AND ASSIGNMENT. This Agreement shall be binding upon and
inure to the benefit of the Parties named herein and their respective
successors and permitted assigns. No Party may assign either this Agreement
or any of his or its rights, interests, or obligations hereunder without the
prior written approval of the other.
(e) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
(f) HEADINGS. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(g) NOTICES. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly given if (and
then two business days after) it is sent by registered or certified mail,
return receipt requested, postage prepaid, and addressed to the intended
recipient as set forth below:
20
If to Seller:
P.C. Quote Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇
If to Buyers:
Imprimis Investors LLC
c/o Wexford Management LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
and to:
Wexford Spectrum Investors LLC
c/o Wexford Management LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Any Party may send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the address set forth above using any
other means (including personal delivery, expedited courier, messenger
service, telecopy, telex, ordinary mail, or electronic mail), but no such
notice, request, demand, claim, or other communication shall be deemed to
have been duly given unless and until it actually is received by the intended
recipient. Any Party may change the address to which notices, requests,
demands, claims, and other communications hereunder are to be delivered by
giving the other Parties notice in the manner herein set forth.
(h) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Delaware without giving
effect to any choice or conflict of law provision or rule (whether of the
State of or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of Delaware.
(i) AMENDMENTS AND WAIVERS. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by
the Parties. No waiver by any Party of any default, misrepresentation, or
breach of warranty or covenant hereunder, whether intentional or not, shall
be deemed to extend to any prior or subsequent default, misrepresentation, or
breach of warranty or covenant hereunder or affect in any way any rights
arising by virtue of any prior or subsequent such occurrence.
21
(j) SEVERABILITY. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or provision
in any other situation or in any other jurisdiction.
(k) EXPENSES. Each Party bears its own costs and expenses (including
legal fees and expenses) incurred in connection with this Agreement and the
transactions contemplated hereby; provided, however, that Seller will reimburse
Buyers a maximum of $25,000 for such expenses.
(l) CONSTRUCTION. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be
construed as if drafted jointly by the Parties and no presumption or burden
of proof shall arise favoring or disfavoring any Party by virtue of the
authorship of any of the provisions of this Agreement. Any reference to any
federal, state, local, or foreign statute or law shall be deemed also to
refer to all rules and regulations promulgated thereunder, unless the context
requires otherwise. The word "including" shall mean including without
limitation.
(m) INCORPORATION OF EXHIBITS, ANNEXES, AND SCHEDULES. The Exhibits,
Annexes, and Schedules identified in this Agreement are incorporated herein
by reference and made a part hereof.
(n) THE CLOSINGS. The closings of the transactions contemplated by this
Agreement shall take place at the offices of Wildman, Harrold, ▇▇▇▇▇ & ▇▇▇▇▇
in Chicago, Illinois, commencing at 9:00 a.m. local time on each Closing Date
or on such other time(s) and date(s) mutually agreed by the Parties.
* * * * *
22
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the date first above written.
IMPRIMIS INVESTORS LLC
By: WEXFORD MANAGEMENT LLC, a
Delaware limited liability company,
its manager
By:
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
WEXFORD SPECTRUM INVESTORS LLC
By: WEXFORD MANAGEMENT LLC,
a Delaware limited liability company,
its manager
By:
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
PC QUOTE, INC.
By:
---------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Executive Officer
23