EXHIBIT 10
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PURCHASE AND SALE AGREEMENT
BY AND AMONG
SKY SITES, INC.,
PURCHASER
AND
▇▇▇▇▇▇▇▇ AIRPORT ADVERTISING, INC.,
SELLER
DATED AS OF MAY 19, 1998
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PURCHASE AND SALE AGREEMENT, dated as of May 19, 1998, by and among
Sky Sites, Inc., a Delaware corporation ("Purchaser") and ▇▇▇▇▇▇▇▇ Airport
Advertising, Inc., a Washington corporation ("Seller").
WHEREAS, Purchaser desires to purchase, and Seller desires to sell,
the assets used in connection with the conduct of the Business (as defined
herein), including the value of the Business as a going concern, all upon the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in reliance upon the covenants and agreements set
forth herein intending to be legally bound, the parties hereto agree as follows:
I. PURCHASE AND SALE OF ASSETS
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Section 1.1. Purchase and Sale of Assets. At the closing of the
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acquisition of the Assets (as hereinafter defined) pursuant to this Agreement
(the "Closing"), upon the terms and subject to the conditions contained herein,
Seller shall sell, transfer, convey, assign and deliver to Purchaser, effective
as of the Closing, and Purchaser shall purchase and accept from Seller, all of
the assets of Seller and all of Seller's Affiliates (as defined in Section 12.15
hereof) used in or related to the business of obtaining, displaying and
maintaining advertising signage and media opportunities in airports and selling
space and time thereon for advertising purposes pursuant to agreements with
airport authorities, airlines and other concessionaires at airports (the
"Business"), free and clear of all liens, mortgages, pledges, encumbrances and
charges of every kind (collectively, the "Assets"), including, but not limited
to:
(a) rights and benefits accruing to Seller or its Affiliates
under all agreements and contracts, written or oral, entered into in connection
with the conduct of the Business, including without limitation:
(i) all airport concession agreements and airline
concession agreements which are identified on Schedule 1.1(a)(i), or the entire
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beneficial use and economic benefit thereof (collectively, the "Airport
Concession Agreements")
(ii) all advertising contracts which are identified on
Schedule 1.1(a)(ii) (collectively, the "Advertising Contracts");
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(iii) all subcontracts which are identified on Schedule
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1.1(a)(iii) (collectively, the "Subcontracts"); and
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(iv) all other contracts, agreements and arrangements which
are listed in Schedule 1.1(a)(iv) (such contracts, agreements and arrangements,
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together with the Advertising Contracts, the Airport Concession Agreements,
agreements of joint venture and the Subcontracts being collectively referred to
herein as the "Contracts");
(b) all inventory, equipment, frames, advertising structures,
sales and promotional materials, supplies, furniture, photographs, computer
software and related documentation spare parts, and all other tangible assets of
Seller used in or related to the Business, including without limitation those
described in Schedule 1.1(b);
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(c) all the interest of, and the rights and/or benefits accruing to,
Seller or its Affiliates as lessee under (i) the leases of real property used in
the Business which are identified on Schedule 1.1(c) (the "Real Estate Leases")
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and all leasehold improvements and fixtures relating thereto, and (ii) such
leases or rental agreements covering machinery, equipment, computers, computer
hardware, tools, supplies, furniture and fixtures, automobiles and other
tangible assets used in the Business, as are described in Schedule 1.1(c)
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(collectively, with the Real Estate Leases, the "Leases");
(d) all right, title and interest of Seller and its Affiliates in all
joint ventures related to the Business (the "Joint Ventures") identified in
Schedule 1.1(d), including Seller's capital accounts and voting rights;
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(e) all operating data (including booking, mapping, administrative and
accounting system), books and records relating to the Business, including
without limitation all files, records, correspondence, client lists and records,
referral sources, research and development reports and records, production
reports and records, equipment logs, operating guides and manuals, projections,
accounting and personnel records and correspondence and other similar documents
and records source and object codes;
(f) the use of the names "▇▇▇▇▇▇▇▇ Airport Advertising" and "AK
Media/Airport" for a period of twelve months from Closing;
(g) all licenses, permits, approvals, qualifications, consents and
other authorizations necessary for the lawful conduct, ownership and operation
of the Business, if any, including without limitation those listed on Schedule
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1.1(g);
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(h) all claims, warranty rights, causes of action and other similar
rights arising in the conduct of or relating to the Business, except as set
forth in Schedule 1.1(h); and
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(i) all goodwill and going concern value of the Business.
Section 1.2. Retained Assets. The Assets shall not be deemed to include
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Seller's cash (other than deferred advertising revenue attributable to the
period subsequent to Closing) and accounts receivable attributable to the period
prior to Closing (the "Closing Date" "Accounts Receivable") and those other
assets of Seller which are specifically identified on Schedule 1.2 as Retained
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Assets (the "Retained Assets").
Section 1.3. Assumed Liabilities. At the Closing, upon the terms and
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subject to the conditions contained herein, Purchaser shall assume, effective as
of the Closing Date, and agrees to pay, perform and discharge in accordance with
their terms, only the following obligations and liabilities of Seller to the
extent that they accrue on or after, and relate to periods commencing after, the
Closing Date (collectively, "Assumed Liabilities"):
(a) Seller's obligations under those Contracts which are
effectively assigned by Seller to Purchaser as of the Closing Date, including
the Airport Concession Agreements (the "Assigned Contracts") (excluding breaches
thereof to the Closing Date and excluding any and all obligations of Seller
which were to have been performed thereunder to the Closing Date); and
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(b) Seller's obligations under the Leases (excluding breaches
thereof to the Closing Date and excluding any and all obligations of Seller
which were to have been performed thereunder the Closing Date).
(c) any obligation for "Taxes" (as hereinafter defined), including
interest, penalties or additions to tax relating thereto, arising from the
operation of the Business from and after the Closing Date;
Section 1.4. Excluded Liabilities. Purchaser is not assuming and shall
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not be liable for any liabilities of Seller or its Affiliates of any nature
whatsoever other than those liabilities expressly assumed by Purchaser pursuant
to this Agreement (all such liabilities, other than Assumed Liabilities, being
referred to herein as "Excluded Liabilities").
Section 1.5 Closing. The Closing shall take place at the Seller's offices
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in New York City at 10:00 a.m. on the date which is five business days after (a)
the expiration of the waiting period under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust
Improvements Act of 1976, or (b) if either the U.S. Department of Justice or the
Federal Trade Commission (collectively the "Government") have indicated any
objections to the transaction contemplated by this Agreement during the waiting
period, such objection shall have been withdrawn or otherwise resolved to the
satisfaction of the U.S. Department of Justice or the Federal Trade Commission.
Each party hereto agrees to use its commercially reasonable efforts to satisfy
each request of the U.S. Department of Justice or the Federal Trade Commission
for information within the time for response established by the U.S. Department
of Justice or the Federal Trade Commission, as the case may be.
Section 1.6. Purchase Price. The Purchase Price for the Assets shall be
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Forty-four Million Dollars (US$44,000,000) in cash, subject to adjustment as
described in Section 1.7 below (the "Purchase Price").
Section 1.7. Adjustment in Purchase Price. If any adjustment is required
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by the provisions of the following subparagraphs, the Purchase Price shall be
reduced by an amount calculated in the following manner:
(a) Base Purchase Price. Purchaser shall pay to Seller at
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closing by wire transfer a "Base Purchase Price" of Forty Million Dollars
(US$40,000,000). This Base Purchase Price shall not be subject to any
adjustment.
(b) Contingent Purchase Increment. On April 7, 1998, Seller and
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Purchaser entered into an Escrow Agreement with Banque Nationale de Paris
("Escrow Agent"), to hold a US$4,900,000 escrow deposit (the "Escrow Deposit").
Upon the execution of this Agreement, Seller, Purchaser and Escrow Agent will
execute and deliver the Amended Escrow Agreement in the form attached as Exhibit
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A hereto. The Amended Escrow Agreement provides that the amount of the Escrow
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Deposit is changed to Four Million Dollars (US$4,000,000), that the Escrow
Deposit will be held by Escrow Agent pending Closing and that:
(i) In the event that during the period beginning on the
Closing Date and ending on the 180th day thereafter (the "Grace Period"),
Purchaser becomes the assignee, transferee or is otherwise able to enjoy all
beneficial use and economic benefit of all of the Airport Concession Agreements,
then the Escrow Deposit shall be paid to Seller on the 181st day
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after the Closing Date.
(ii) In the event that during the Grace Period, Purchaser
does not become the assignee, transferee, or is otherwise unable to enjoy all
beneficial use and economic benefit of any Airport Concession Agreement(s), then
the Escrow Deposit shall be reduced by an amount equal to 1.4 times gross
revenues less agency commission that was attributable to such concession(s)
during the twelve month period immediately preceding March 31, 1998, and said
reduced amount shall be paid to Seller on the one hundred eighty first day
following the Closing Date; provided that the total of any such reduction shall
not exceed Four Million Dollars (US$4,000,000). All interest from the Escrow
Deposit from and after the Closing Date shall be paid to Seller on the 181st day
following the Closing Date, unless there has been a reduction in the Escrow
Deposit pursuant to this subparagraph (ii), in which case interest shall be paid
to the Seller and the Purchaser in proportion to the amount of principal of the
Escrow Deposit paid to Seller and Purchaser.
(iii) In the event that during the Grace Period, Purchaser
is awarded airport concessions by airports which are not parties to the Airport
Concession Agreements, Seller shall be entitled a credit against reductions to
the Escrow Deposit, in amount equal to fifty percent (50%) of the gross revenues
less agency commission in excess of Four Hundred Thousand Dollars (US$400,000)
attributable to such new concession(s) during the Grace Period received by
Purchaser.
(iv) Purchaser and Seller hereby agree to give joint
written instructions to the Escrow Agent to effect the foregoing.
Section 1.8. Delivery of Purchase Price and Transfer of Assets. (a) On
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the Closing Date, Purchaser shall deliver the Purchase Price by wire transfer of
immediately available federal funds to an account specified by Seller at least
two business days prior to Closing.
(b) At the Closing, Seller shall deliver to Purchaser (x) such
deeds, bills of sale, endorsements, assignments and other instruments of sale,
conveyance, transfer and assignment, satisfactory in form and substance to
Purchaser and its counsel, as may be reasonably requested by Purchaser, in order
to convey to Purchaser (i) the right to conduct the Business (subject to Section
1.7(c)) and (ii) good and marketable title to the Assets, free and clear of all
claims, charges, equities, liens, security interests and encumbrances, except as
permitted by this Agreement and (y) cash representing deferred advertising
revenue attributable to the period beginning on or after the Closing Date, if
any.
(c)(1) At Closing, Seller and Purchaser shall execute a Service
Agreement in the form set forth in Exhibit B for each airport or airline
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concession, which shall be applicable to each Airport Concession Agreement as to
which any written consent to assignment shall not have been received.
(2) From and after Closing, Purchaser shall cooperate with
Seller to obtain the written consents which are or may be required under the
Assigned Contracts and Leases.
Section 1.9. Accounts Receivable. (a) Seller shall collect its own
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Accounts
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Receivables.
(b) For a period of twelve (12) months beginning on the Closing Date,
Purchaser may use its own lockbox in the name of "Sky Sites, Inc. d/b/a ▇▇▇▇▇▇▇▇
Airport Advertising" and may notify customers effective with its first ▇▇▇▇▇▇▇▇
of the new lockbox address.
(c) Beginning the Closing Date, and on a daily basis thereafter for a
period of six months after Closing, and every thirty (30) days for a period of
one (1) year after Closing, or at such other times as Seller and Purchaser
mutually determine, Seller shall furnish Purchaser with a list of, and pay over
to Purchaser, any and all accounts receivable Seller has collected which are
attributable to the operation of the Business on after the Closing Date.
(d) Beginning the Closing Date, on a daily basis thereafter for a
period of six months after Closing, and every thirty (30) days for a period of
one (1) year after Closing, or at such other times as Seller and Purchaser
mutually determine, Purchaser shall furnish Seller with a list of, and pay over
to Seller, any and all accounts receivable Purchaser has collected which are
attributable to the operation of the Business prior to the Closing Date.
(e) Seller agrees that Purchaser's auditors may review the Financial
Statements of the Business at the Closing Date to review, among other things,
the allocation of accounts receivable and accounts payable between Purchaser and
Seller.
II. CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS
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The obligation of Purchaser under this Agreement to consummate the purchase
of the Assets at the Closing shall be subject to the satisfaction, at or prior
to the Closing, of all of the following conditions any of which may be waived in
writing in whole or in part by Purchaser:
Section 2.1. Representations and Warranties Accurate. All representations
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and warranties of Seller contained in this Agreement, shall be true in all
respects on and as of the Closing Date with the same force and effect as though
such representations and warranties were made on and as of the Closing Date.
Section 2.2. Performance by Seller. Seller shall have performed and
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complied in all material respects with all agreements, covenants and conditions
required by this Agreement to be performed and complied with by them prior to or
on the Closing Date.
Section 2.3. Certificate. Purchaser shall have received a certificate,
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dated as of the Closing Date, signed by an authorized officer of Seller, to the
effect that the conditions set forth in Sections 2.1 and 2.2 have been
satisfied.
Section 2.4. Opinion of Counsel for Seller. Purchaser shall have received
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from Seller's counsel, a written opinion, dated as of the Closing Date,
substantially in the form attached hereto as Exhibit C and hereby made a part
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hereof.
Section 2.5. Legal Prohibition. On the Closing Date, no injunction or
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order shall be in effect prohibiting consummation of the transactions
contemplated hereby or which would make
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the consummation of such transactions unlawful and no action or proceeding shall
have been instituted and remain pending before a court, governmental body or
regulatory authority to restrain or prohibit the transactions contemplated by
this Agreement and no adverse decision shall have been made by any such court,
governmental body or regulatory authority which could decrease the value of the
Business or increase the Assumed Liabilities or the liabilities of the Business
after the Closing Date.
Section 2.6. Closing Matters. All actions to be taken by Seller in
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connection with the consummation of the transactions contemplated hereby and all
certificates, opinions, instruments and other documents required to effect the
transactions contemplated hereby shall be reasonably satisfactory in form and
substance to Purchaser and its counsel.
III. CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS
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The obligation of Seller under this Agreement to consummate the sale of the
Assets at the Closing shall be subject to the satisfaction, at or prior to the
Closing, of all of the following conditions, any of which may be waived in
writing in whole or in part by Seller.
Section 3.1. Representations and Warranties Accurate. All
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representations and warranties of Purchaser contained in this Agreement, shall
be true in all respects on and as of the Closing Date, with the same force and
effect as though such representations and warranties were made on and as of the
Closing Date.
Section 3.2. Performance by Purchaser. Purchaser shall have performed and
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complied in all material respects with all agreements, covenants and conditions
required by this Agreement to be performed and complied with by Purchaser prior
to or on the Closing Date.
Section 3.3. Certificate. Seller shall have received a certificate, dated
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as of the Closing Date, signed by an authorized officer of Purchaser, to the
effect that the conditions set forth in Sections 3.1 and 3.2 have been
satisfied.
Section 3.4. Opinion of Counsel for Purchaser. Seller shall have received
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from Purchaser's counsel, a written opinion dated as of the Closing Date,
substantially in the form attached hereto as Exhibit D and hereby made a part
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hereof.
Section 3.5. Legal Prohibition. On the Closing Date, no injunction or
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order shall be in effect prohibiting consummation of the transactions
contemplated hereby or which would make the consummation of such transactions
unlawful and no action or proceeding shall have been instituted and remain
pending before a court, governmental body or regulatory authority to restrain or
prohibit the transactions contemplated by this Agreement.
Section 3.6. Closing Matters. All actions to be taken by Purchaser in
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connection with the consummation of the transactions contemplated hereby and all
opinions and other documents required to effect the transactions contemplated
hereby shall be reasonably satisfactory in form and substance to Seller and its
counsel.
IV. SELLER REPRESENTATIONS AND WARRANTIES
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Seller represents and warrants to Purchaser as follows:
Section 4.1. Organization and Qualification. Seller and each Affiliate of
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Seller which owned or owns assets used in or related to the Business (a
"Business Affiliate") is a corporation duly organized, validly existing and at
the Closing Date shall be in good standing under the laws of the State of
Washington, with power and authority and all licenses and permits necessary to
conduct the Business as presently conducted, and to own, lease and operate the
properties and assets used in connection therewith and to enter into and perform
this Agreement and the transactions contemplated hereby. Seller and each
Business Affiliate is in good standing as a foreign corporation and licensed or
qualified to transact business in each jurisdiction in which the nature of the
properties owned or leased by it or the business transacted by it requires it to
be so licensed or qualified, such jurisdictions being listed on Schedule 4.1.
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Neither Seller nor any Business Affiliate has operated under any names other
than ▇▇▇▇▇▇▇▇ Airport Advertising, Inc. or AK Media/Airport during the last five
years. Seller has not acquired or merged with any business during the last five
years.
Section 4.2. Due Authorization. (a) Seller has all requisite corporate
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power and authority to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
The execution and delivery by Seller of this Agreement and the other documents
contemplated hereby, the performance by Seller of its obligations hereunder and
thereunder, and the transactions contemplated hereby and thereby have been duly
and validly authorized by all necessary corporate action on the part of Seller
and in the case of a transfer of assets by Business Affiliates to Seller, by
each such Business Affiliate. This Agreement is a legal, valid and binding
obligation of Seller, enforceable against it in accordance with its terms
(except as the enforceability thereof may be limited by any applicable
bankruptcy, insolvency or other laws affecting creditors' rights generally or by
general principles of equity, regardless of whether such enforceability is
considered in equity or at law).
(b) ▇▇▇▇▇▇▇▇ (as hereinafter defined) has all requisite corporate
power and authority to execute and deliver the guaranty as provided in Section
11.2 hereof and to perform its obligations thereunder (including, without
limitation, the non-solicitation and non-competition provisions of Sections 6.7
and 6.8). The execution and delivery by ▇▇▇▇▇▇▇▇ of this Agreement as to Section
11.2 and the performance by ▇▇▇▇▇▇▇▇ of its obligations thereunder (including,
without limitation, the non-solicitation and non-competition provisions of
Sections 6.7 and 6.8) have been duly and validly authorized by all necessary
corporate action on the part of ▇▇▇▇▇▇▇▇. The guaranty provided in Section 11.2
hereof is a legal, valid and binding obligation of ▇▇▇▇▇▇▇▇, enforceable against
it in accordance with its terms (except as the enforceability thereof may be
limited by any applicable bankruptcy, insolvency or other laws affecting
creditors' rights generally or by general principles of equity, regardless of
whether such enforceability is considered in equity or at law).
Section 4.3. No Conflict. Except as set forth in Schedule 4.3, neither
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the execution and delivery of this Agreement or any of the other documents
contemplated hereby by Seller nor the consummation of the transactions
contemplated hereby or thereby will conflict with, result in a breach or
violation of or constitute (or with notice or lapse of time or both constitute)
a default under (a) the Articles of Incorporation or By-Laws of Seller, (b) any
statute or order, judgment or decree of any court, (c) any material Contract,
subject to Section 1.8(c) hereof ; provided,
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however, that Purchaser has reviewed, and has made its own evaluation regarding
its ability to obtain the beneficial economic use of, all of the Airport
Concession Agreements or (d) any material contract to which an Affiliate of
Seller is a party. Except as provided in Sections 1.7(b) and 1.8(c) hereof,
Purchaser assumes the sole risk of obtaining the consent to assignment or the
beneficial economic use of the Airport Concession Agreements. While Seller has
indicated its good faith belief that consents to assignment, or the beneficial
economic use, of the Airport Concession Agreements can be obtained. Seller does
not represent or warrant whether any Airport Concession Agreement is assignable,
whether Purchaser will be able to derive the beneficial economic use of any
Airport Concession Agreement, or whether the execution and delivery of this
Agreement may constitute a breach of any Airport Concession Agreement which may
result in the termination of any such Agreement.
Section 4.4. Title to and Condition of Assets. (a) The schedules to this
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Agreement contain true, correct and complete lists of all the Assets. Seller
has, except for the Retained Assets and assets which are sold by Seller or in
the ordinary course of the Business between the date hereof and the Closing
Date, as of the Closing Date, good and marketable title to, or valid and
subsisting leasehold interests in or valid licenses to use, all the Assets, free
and clear of any liens, charges, options, security interests or other
encumbrances, except inchoate liens of current Taxes not yet due and payable.
(b) The Assets constitute all of the assets used in or related to
the Business and are all the assets necessary to enable Purchaser to conduct the
Business subsequent to Closing in the same manner as presently conducted, and
include all assets used in or related to the Business which were owned by
Affiliates of Seller (ownership of, and all rights to, such assets have been or
will be transferred to Seller prior to Closing). Accordingly, Seller agrees that
all representations and warranties of Seller contained herein are also made with
respect to Business Affiliates to the extent that they are relevant to the
assets to be transferred to Purchaser pursuant to this Agreement.
Section 4.5. Financial Statements. (a) Seller has delivered to Purchaser
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all financial statements related to the Business for calendar year 1997
including the audited financial statements of Seller for the year ended December
31, 1997 and the most recent unaudited balance sheets and income statements of
Seller dated as of March 31, 1998 (the "Interim Financial Statement"), all of
which are attached hereto as Schedule 4.5 (collectively, the "Financial
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Statements"). The Financial Statements were prepared from the books and records
of Seller in accordance with U.S. generally accepted accounting principles
applied on a basis consistent with prior periods. Each of the Financial
Statements fairly presents the financial position and results of operations of
the Business as at, and for the period ending on, their dates.
(b) Neither Seller nor its Affiliates has liabilities or
obligations of any nature, whether accrued, absolute or contingent, and whether
due or to become due, including without limitation, any liability for Taxes,
except (i) as set forth or reflected on the Interim Financial Statement, (ii) as
disclosed in the Schedules hereto, (iii) for purchase contracts and orders
entered into in the ordinary course of business consistent in form and amount,
in all respects, with past practice, and (iv) for current liabilities incurred
in the ordinary course of the Business consistent in all respects, in form and
amount, with past practice since 1993.
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(c) The books and records of Seller reflect all material income and
expense items, and all assets and liabilities related to the Business and are in
all material respects complete and correct.
Section 4.6. Absence of Certain Changes or Events. Except as set forth on
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Schedule 4.6 hereto, since March 31, 1998, there has not been:
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(a) any change in the Assets, Business, liabilities, results of
operations or financial condition of the Business which individually or in the
aggregate would be reasonably expected to have a material adverse effect on the
Assets, liabilities, results of operations or financial condition of the
Business taken as a whole (a "Material Adverse Effect"), and, to the knowledge
of Seller, no such change is threatened or reasonably likely, except such
changes as may affect the economy generally;
(b) any damage, destruction or casualty loss, whether covered by
insurance or not, which individually or in the aggregate would be reasonably
expected to have a Material Adverse Effect;
(c) any increase in compensation payable to, or any employment, bonus
or compensation agreement entered into with, any employees or independent
contractors of Seller;
(d) any obligation or liability (absolute or contingent) relating to
the Business incurred, or to which the Assets or Business have become subject,
except current liabilities incurred in the ordinary course of conduct of the
Business and obligations under contracts entered into in the ordinary course of
the Business consistent in all respects, in form and amount, with past practice
since 1993;
(e) any amendment, renewal or termination of any Assigned Contract,
Lease or other material contract, agreement or permit relating to the Business;
(f) any events or conditions of any character, which individually or
in the aggregate are reasonably likely to have a Material Adverse Effect;
(g) any strike or other labor dispute;
(h) any loss of employees or customers that individually or in the
aggregate has had or will have a Material Adverse Effect;
(i) any amendment of its organizational documents;
(j) any rights or licenses granted under any of its trademarks or
trade names or other intellectual property or entered into any licensing or
similar agreements or arrangements which individually or in the aggregate are
material, except in the ordinary course of business consistent with past
practice;
(k) any material changes made in policies or practices relating to
selling practices, purchasing, returns, discounts, marketing, or other material
terms of sale or accounting therefor;
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(l) any changes made in its accounting practices, policies or
principles other than as required by applicable law;
(m) any elections made or any material liability compromised with
respect to taxes;
(n) except in connection with the proposed sale of the Business,
disclosed any secret or confidential material intellectual property (except by
way of issuance of a patent) or permitted to lapse or become abandoned any
intellectual property (or any registration or grant thereof or any application
relating thereto);
Section 4.7. Conduct of Operations Pending the Closing. Except as set
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forth on Schedule 4.7 hereto, since March 31, 1998.
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(a) the Business has been conducted only in the ordinary course and in
substantially the same manner as it has heretofore;
(b) all insurance relating to the Assets and the Business comparable
in amount and scope of coverage to that now maintained by it has been kept in
full force and effect;
(c) all obligations under Assigned Contracts, Leases and documents
relating to or affecting its conduct of the Business, have been performed all in
the same manner as heretofore performed;
(d) commercially reasonable efforts have been used, and to Seller's
knowledge, the properties, assets, and business organizations of the Business
have been maintained and preserved intact, commercially reasonable efforts have
been used to maintain, and to Seller's knowledge its goodwill and relationships
with its present employees, suppliers and others having a relationship with the
Business and all licenses and permits and rights under contracts requisite to
the conduct of the Business as now conducted have been maintained;
(e) no capital expenditure in connection with the Business in excess
of $15,000 ($50,000 in total) has been committed;
(f) no right has been waived, or debt or claim under any contract,
lease, agreement or commitment in connection with the Business canceled which
involves the payment of more than $15,000 ($50,000 in total);
(g) all equipment, fixtures and other property used in the Business,
have been maintained and are in good working condition reasonable wear and tear
excepted; and
(h) no new Airport Concession Agreements, joint ventures, subcontracts
or any other material contracts, subcontracts, agreements, permits or leases
relating to the Business have been applied for or entered into.
Section 4.8. Litigation. Except as set forth in Schedule 4.8, neither
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Seller nor its Affiliates is subject to any judgment, award, order, writ,
injunction, arbitration decision or decree with respect to the Business, that,
individually or in the aggregate, is reasonably expected to have
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a Material Adverse Effect. There is no suit, action or proceeding pending or, to
knowledge of Seller, threatened against Seller or its Affiliates, that,
individually or in the aggregate, is reasonably expected to have a Material
Adverse Effect.
Section 4.9. Compliance with Law. Seller and the Business have been and
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are operating in compliance with all applicable laws, regulations licenses,
permits and governmental orders except for such failures so to comply as would
not, individually or in the aggregate, have a Material Adverse Effect, the
present use of the Assets does not violate any such laws, regulations or orders
in any material respect, except for such possible violations which would not,
individually or in the aggregate, have a Material Adverse Effect.
Section 4.10. Labor Matters. To the knowledge of Seller, there are not in
-------------
existence or threatened any work stoppages respecting employees of Seller or the
Business.
Section 4.11. Brokers. Neither Seller nor any Affiliates, nor any parties
-------
acting on their behalf has not paid or become obligated to pay any fee or
commission to any broker, finder, investment banker or other intermediary in
connection with the transactions contemplated by this Agreement.
Section 4.12. Personnel. (a) Schedule 4.12 contains a list of all persons
--------- -------------
employed in the Business, including their salaries, titles and dates of
employment, and a list of all employment, consulting and other contracts with
persons employed.
(b) Neither Seller nor any Affiliate is a party to any Contract or
agreement with any labor organization, nor has Seller or any Affiliate agreed to
recognize any union or other collective bargaining unit, nor has any union or
other collective bargaining unit been certified as representing any of the
employees of the Business. Seller has no knowledge of any organizational effort
currently being made by or on behalf of any labor union with respect to
employees of the Business. Seller has no knowledge of any unfair labor practice
charges pending against Seller with respect to the Business; there are no
pending or, to Seller's knowledge, threatened strikes or arbitration proceedings
involving labor matters affecting Seller or the Business; and neither Seller nor
the Business has experienced any strikes, work stoppage or other significant
labor difficulties of any nature during the last three years.
(c) To the knowledge of Seller, Seller has complied in all material
respects with all laws relating to the employment of labor, including, without
limitation, those laws relating to safety, health, wages, hours, collective
bargaining, unemployment insurance, workers' compensation, equal employment
opportunity and payment and withholding of taxes except as individually or in
the aggregate would not reasonably be expected to have a Material Adverse
Effect.
Section 4.13. Insurance; Performance Bonds and Letters of Credit.
--------------------------------------------------
Schedule 4.13 reflects all insurance, performance bonds and letters of credit
-------------
which are required by law or any agreement, including any of the Airport
Concession Agreements, to be maintained or entered into with respect to the
Business.
Section 4.14. ERISA. (a) Schedule 4.14(a) sets forth a list of each
----- ----------------
employee benefit plan that is maintained by the Seller or to which the Seller
contributes or is obligated to
-11-
contribute (collectively, the "Plans"). The Seller has made available to the
-----
Purchaser correct and complete copies of all written Plans. Each Plan intended
to be qualified under section 401(a) of the Internal Revenue Code (the "Code")
had received a favorable determination letter from the Internal Revenue Service
("IRS") as to its qualification under the Code and no amendment has been made to
any such Plan since the date of its most recent determination letter that would
reasonably be expected to result in the disqualification of such Plan.
(b) No Plan is subject to the minimum funding standards of section 302
of Employee Retirement Income Security Act of 1974, as amended ("ERISA"). ERISA
or section 412 of the Code. No Plan is a multi employer plan (as defined in
section 3(37) of ERISA) or a multiple employer plan. No liability to the
Pension Benefit Guaranty Corporation in respect of any Plan which individually
or in the aggregate is material has been incurred pursuant to the provisions of
Title IV of ERISA or otherwise by the Seller. There is no other trade or
business, whether or not incorporated, that is treated as a single employer
together with the Seller under section 414(b) or 414(c) of the Code.
(c) Each of the Plans complies, and has been operated and administered
in accordance, with all applicable laws, including but not limited to ERISA and
the Code, except for any such noncompliance that individually or in the
aggregate will not have a Material Adverse Effect. There are no pending or, to
the knowledge of the Seller, threatened claims by or on behalf of any employee
of the Seller involving any Plan (other than routine claims for benefits under
the terms of any such Plan). All contributions required to have been made to
any Plan by the Seller pursuant to applicable law (including, without
limitation, ERISA and the Code) have been timely made.
Section 4.15. Taxes. Except as specifically set forth in Schedule 4.15,
----- -------------
(i) all returns and reports of U.S. federal, state, local and foreign income,
profits, franchise, unincorporated business, capital, general corporate, sales,
use, occupation, property, excise and any and all other taxes which Seller the
Business or the Assets has assumed, succeeded to or for which it was, is or may
be otherwise responsible, whether directly or by reason of having been included
in a consolidated return filed on behalf of one or more other corporations (all
such taxes, irrespective of the period for which payable or attributable, being
hereinafter referred to as "Taxes") that are or were required to be filed have
been filed on a timely basis (taking into account any extensions granted by the
relevant taxing authorities) with the appropriate taxing authorities in all
jurisdictions in which such returns and reports are or were required to be
filed, and all such returns and reports are true, correct and complete in all
material respects, (ii) all Taxes (including interest, additions to tax and
penalties thereon, together with interest on such additions to tax and
penalties) through March 31, 1998 have been fully paid, deposited, adequately
reserved for, or are being contested in good faith, and other than as set forth
on Schedule 4.15, no notices have been received by Seller of any deficiencies,
-------------
adjustments or other changes in assessments with respect to any such Taxes, and
(iii) no liens for Taxes which have not been satisfied or discharged by payment
or concession by the relevant taxing authority are in force as of the date
hereof.
Section 4.16. Contracts and Leases. (a) The Contracts and the Leases are
--------------------
valid and binding obligations of the parties thereto, enforceable in accordance
with their terms, and are in full force and effect on the date hereof, are all
of the contracts, agreements and arrangements
-12-
relating to the Business, and neither Seller nor, to Seller's knowledge, any
party to any of the Leases or Contracts have breached any material provision of,
and are in default under the terms of, any of the Leases or Contracts in any
material respect.
(b) No shareholder, partner, officer, director or employee of Seller
or its Affiliates is a party to any of the Contracts or the Leases.
(c) A true, complete and correct copy of each Contract has been
delivered to Purchaser.
Section 4.17. Interest in Business. Seller has not granted, and there is
--------------------
not outstanding, any option, right, agreement or other obligation pursuant to
which any person could claim a right to acquire in any way all or part of, or
interest in, the Business or the Assets, other than any which might arise in the
ordinary course of the business as a result of a sale or agreement to sell the
Business's products or services.
Section 4.18. Warn Act. Seller has not taken any action or failed to take
--------
any action which would cause a Plant Closing or Mass Layoff resulting in
Employment Loss at any of the employment sites to be acquired by Purchaser, as
those terms are defined by the Worker Adjustment and Retraining Notification
Act, Public Law 100-379 (August 4, 1988)("WARN Act").
Section 4.19. Environmental Matters. "Environmental Laws" shall mean all
---------------------
applicable local, state and federal statutes and regulations relating to the
protection of human health or the environment. Seller has operated the Business
in compliance with all Environmental Laws, except where failure to do so would
not individually or in the aggregate have a Material Adverse Effect. To the
knowledge of Seller, no real property that constitutes any part of the Assets is
contaminated with any hazardous substance to an extent or in a manner or
condition now requiring remediation under any Environmental Law; no judicial or
administrative proceeding is pending or to the knowledge of Seller threatened
relating to liability for any off-site disposal or contamination; and neither
Seller nor its Affiliates has received any claims or notices alleging liability
related to the Assets or the Business under any Environmental Law, and Seller
has no knowledge of any circumstances that are reasonably likely to result in
claims relating to off-site disposal, contamination or other alleged violations
of any Environmental Law.
Section 4.20. Disclosure. None of this Agreement or any certificate or
----------
other document delivered or to be delivered in connection with the transactions
contemplated by this Agreement contains or will contain any untrue statement of
a material fact or omits or will omit any statement of material fact necessary
to make any statement contained herein or therein not misleading.
Section 4.21. Intellectual Property. (a) Schedule 4.21 sets forth all of
--------------------- -------------
the intellectual property used in the Business as of the date hereof other than
intellectual property the absence of which individually or in the aggregate
would not result in a Material Adverse Effect (the "Intellectual Property").
Seller has the legal right to use the Intellectual Property in connection with
the Business as currently conducted.
(b) To the knowledge of the Seller, the Business and operations of the
-13-
Seller as previously and currently conducted do not infringe or otherwise
conflict with any rights of any person in respect of any of the Intellectual
Property, except to the extent that any such infringements and other conflicts
individually or in the aggregate will not have a Material Adverse Effect.
(c) To the knowledge of the Seller, the Seller licenses no
Intellectual Property to any other person.
Section 4.22. Additional Labor Matters. Neither Seller nor the Business
------------------------
is a party to or bound by any collective bargaining agreement or other labor
union contract applicable to persons employed by the Seller or the Business and,
to the knowledge of the Seller, there are currently no existing organizational
campaigns, petitions or other unionization activities seeking recognition of a
collective bargaining unit. Seller and the Business are in compliance with all
applicable provisions of federal, state and local laws pertaining to the
employment of employees, including those relating to wages, hours and collective
bargaining, except to the extent any failure to comply individually or in the
aggregate would not reasonably be expected to have a Material Adverse Effect.
There are no unfair labor practice complaints pending against the Seller or the
Business before the National Labor Relations Board or any other Governmental
Authority. Seller has paid in full to all employees, or adequately accrued for
in accordance with U.S. GAAP, all wages, salaries, commissions, bonuses,
benefits and other compensation due such employees. There is no current claim
with respect to payment of wages, salary or overtime pay that has been asserted
or is now pending before any governmental authority with respect to any persons
currently or formerly employed by Seller or the Business. Neither Seller nor the
Business is a party to, or otherwise bound by, any consent decree with, or
citation by, any governmental authority relating to employees or employment
practices. There is no current charge or proceeding with respect to a violation
of any occupational safety or health standards that has been asserted or is now
pending with respect to Seller or the Business. There is no current charge of
discrimination in employment or employment practices, including, without
limitation, age, gender, race, religion or other legally protected category,
which has been asserted or is now pending against Seller or the Business before
the United States Equal Employment Opportunity Commission or any other
governmental authority in any jurisdiction in which Seller or the Business has
employed or currently employs any person.
Section 4.23. Purchase and Sale Obligations. All unfulfilled purchase and
-----------------------------
sales orders and all other commitments for purchases and sales made by Seller
during the period since December 31, 1997 in connection with the Business were
made in the usual and ordinary course of the Business in accordance with
customary pricing policies of the Business.
Section 4.24. Securities. No shares of stock or other securities are
----------
included in the Assets.
Section 4.25. Illegal Payments. No part of the Business is dependent
----------------
upon, or results from, any payments, direct or indirect, in the nature of
bribes, kick-backs, or similar payments to any governmental or agency thereof or
any other Person, or in the nature of contributions to any domestic or foreign
political party or candidate, and no illegal payments have been made.
V. PURCHASER REPRESENTATIONS AND WARRANTIES
----------------------------------------
-14-
Purchaser hereby represents and warrants to Seller as follows:
Section 5.1. Organization. Purchaser is a corporation duly organized,
------------
validly existing and in good standing under the laws of the State of Delaware,
with full corporate power and authority to own or lease its properties and carry
on its business as presently conducted. Purchaser is licensed or qualified to
transact business in each jurisdiction in which the nature of the properties
owned or leased by it or the business transacted by it requires it to be so
licensed or qualified, except where the failure to be so qualified or licensed
would not have a material adverse effect on Purchaser.
Section 5.2. Due Authorization. (a) Purchaser has all requisite
-----------------
corporate power and authority to execute and deliver this Agreement and to
perform fully its obligations hereunder and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by Purchaser,
the performance by Purchaser of its obligations hereunder and the transactions
contemplated hereby have been duly and validly authorized by all necessary
corporate action on the part of Purchaser. This Agreement is a legal, valid and
binding obligation of Purchaser enforceable against it in accordance with its
terms (except as the enforceability thereof may be limited by any applicable
bankruptcy, insolvency or other laws affecting creditors' rights generally or by
general principles of equity, regardless of whether such enforceability is
considered in equity or at law).
(b) Havas (as hereinafter defined) has all requisite
corporate power and authority to execute and deliver the guaranty as provided in
Section 11.1 hereof and to perform its obligations thereunder. The execution and
------------
delivery by Havas of this Agreement as to Section 11.1 and the performance by
------------
Havas of its obligations thereunder have been duly and validly authorized by all
necessary corporate action on the part of Havas. The guaranty provided in
Section 11.1 hereof is a legal, valid and binding obligation of Havas,
------------
enforceable against it in accordance with its terms (except as the
enforceability thereof may be limited by any applicable bankruptcy, insolvency
or other laws affecting creditors' rights generally or by general principles of
equity, regardless of whether such enforceability is considered in equity or at
law).
Section 5.3. No Conflict. Neither the execution and delivery of this
-----------
Agreement by Purchaser nor the consummation of the transactions contemplated
hereby will conflict with, result in a breach or violation of or constitute (or
with notice or lapse of time or both constitute) a default under, (a) the
Certificate of Incorporation or By-laws of Purchaser, or (b) any statute, order,
judgment or decree of any court or any instrument, contract or other agreement
to which Purchaser is a party or by which it is subject or bound.
Section 5.4. Brokers. Purchaser has not paid or become obligated to pay
-------
any fee or commission to any broker, finder, investment banker or other
intermediary in connection with the transactions contemplated by this Agreement.
Section 5.5. Disclosure. None of this Agreement or any certificate or
----------
other document delivered or to be delivered in connection with the transactions
contemplated by this Agreement contains or will contain any untrue statement of
a material fact or omits or will omit any statement of material fact necessary
to make any statement contained herein or therein not misleading.
-15-
VI. COVENANTS
---------
Section 6.1. Conduct and Preservation of Business. Except as contemplated
------------------------------------
by this Agreement, during the period from the date of this Agreement to the
Closing Date, Seller shall xuse its commercially reasonable efforts cause the
Business to be carried on in the ordinary course, diligently and substantially
in the same manner as before.
Section 6.2. Access to Information. Subject to the express terms and
---------------------
conditions of the letter agreement between and Purchaser dated April 7, 1998
relating to Purchaser's review of confidential information relating to the
Business (the "Confidentiality Agreement"), between the date of this Agreement
and the Closing Date, Seller will (a) permit Purchaser's authorized
representatives reasonable access to all of the books, records, Tax returns,
reports and other Tax-related materials, offices and other facilities and
properties of Seller and related to the Business; (b) permit Purchaser to make
such inspections thereof as Purchaser may reasonably request; and (c) furnish
Purchaser with such financial and operating data and other information with
respect to the business, operations and properties of the Business as Purchaser
may from time to time reasonably request, provided, however, that any such
investigation shall be conducted in such a manner as not to interfere
unreasonably with the operations of the Business.
Section 6.3. Filings and Authorizations. On or before June 2, 1998, each
--------------------------
of Seller and Purchaser, as promptly as practicable, (a) shall make, or cause to
be made, all filings and submissions under laws, rules and regulations
applicable to it, or to its Affiliates, including the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
Antitrust Improvements Act of 1976, as amended, as may be required for it to
consummate the transactions contemplated hereby; (b) shall use its commercially
reasonable efforts to obtain, or cause to be obtained, all authorizations,
consents and waivers from all Persons and governmental or public authorities or
bodies necessary to be obtained by it, or any Affiliates, in order for it so to
consummate such transactions; (c) shall respond to any requests for information
or documentation within the time period set forth in any such request; and (d)
shall use its commercially reasonable efforts to take, or cause to be taken, all
other actions necessary, proper or advisable in order for it to fulfill its
obligations hereunder. Seller shall use its commercially reasonable efforts to
assist Purchaser in obtaining all consents required under the Contracts as a
result of this Agreement and the transactions contemplated hereby.
Section 6.4. Public Announcements. Unless and to the extent required by
--------------------
law, Seller, on the one hand, and Purchaser, on the other hand, shall agree in
advance prior to the issuance of any press release or the making of any public
statement with respect to this Agreement and the transactions contemplated
hereby and none of the parties hereto shall issue any such press release or make
any such public statement without the prior consent in writing of the other
parties. In the event that any party is required to issue a press release or
make a public statement by law, it will notify the other parties of the contents
thereof in advance of the issuance or making thereof.
Section 6.5. Hiring of Employees. Following execution of this Agreement,
-------------------
Purchaser shall be permitted to interview all employees of Seller engaged in the
Business and discuss with, and offer employment to, any of such employees.
Seller shall reasonably assist Purchaser in its efforts to hire relevant
employees. It is understood and agreed, however, that Purchaser shall not be
obligated to offer employment to any of Seller's employees. At least ten (10)
days prior to Closing, Purchaser shall provide Seller with a list of Seller's
employees that it intends to hire.
-16-
Section 6.6. WARN ACT. Purchaser covenants that it will not, on or within
--------
ninety (90) days of the Closing Date, take any action or fail to take any action
which would cause a Plant Closing or Mass Layoff resulting in Employment Loss at
any of the employment sites to be acquired from Seller, as those terms are
defined by the Worker Adjustment and Retraining Notification Act, Public Law
100-379 (August 4, 1988)("WARN Act").
Section 6.7. No Solicitation. (a) Unless and until this Agreement is
---------------
terminated, between the date of this Agreement and the Closing, neither Seller
nor any Affiliate of Seller shall directly or indirectly (a) solicit, initiate
or encourage submission of any proposal or offer from any person relating to any
acquisition or purchase of all or any substantial amount of the Assets, or any
equity interest in the Business, or (b) participate in any discussions or
negotiations regarding, or furnish to any person any information with respect
to, or otherwise cooperate in any way, or assist or participate in, facilitate
or encourage, any effort or attempt by any person to do or seek any of the
foregoing.
(b) As a separate and independent covenant for the Restricted
Period (as hereinafter defined), neither Seller nor any of its Affiliates will
in any way, directly or indirectly, for the purpose of conducting or engaging in
any business that manufacturers, produces or supplies products or services of
the kind manufactured, produced or supplied by the Business, or take away or
interfere or attempt to interfere with any custom, trade, business or patronage
of the Business, or interfere with or attempt to interfere with any officers,
employees, representatives or agents of the Business or Purchaser or its
Affiliates, or induce or attempt to induce any of them to leave the employ of
Purchaser or its employment agreements with Purchaser or its Affiliates.
Section 6.8. Noncompetition. For a period ending upon the fifth
--------------
anniversary of the Closing Date (the "Restricted Period"), neither Seller nor
any of its Affiliates shall engage, directly or indirectly in the Business any
where in the world or directly or indirectly, own an interest in, manage,
operate, join, control, lend money or render financial or other assistance to or
participate in or be connected with, as an officer, employee, partner,
stockholder, consultant or otherwise, any person or entity that competes with
Purchaser or its Affiliates with respect to the Business; provided, however,
that, for the purposes of this Section 6.8, ownership of securities having no
more than five percent (5%) of the outstanding voting power of any competitor
which are listed on any national securities exchange or traded actively in the
national over-the-counter market shall not be deemed to be in violation of the
Section 6.8 so long as the person owning such securities has no other connection
or relationship with such competitor.
Section 6.9. Extension. The Restricted Period shall be extended by the
---------
length of any period during which Seller is in breach of the terms of this
Article VI.
Section 6.10. Injunctive Relief. Seller agrees that money damages would
-----------------
not be sufficient remedy for any breach of this Article VI and that any such
breach would cause Purchaser and its Affiliates irreparable harm. Accordingly,
Seller agrees that Purchaser and its Affiliates shall be entitled to specific
performance, injunctive relief or other equitable remedy, without the
requirement of posting a bond with respect to an actual or threatened breach of
this Article VI. Such remedy shall not be deemed to be the exclusive remedy for
other breach of this Article VI but shall be in addition to all other remedies
available at law or equity.
-17-
Section 6.11. Limitations. In the event that the covenants set forth in
-----------
this Article VI are more restrictive than permitted by the laws of the
jurisdiction in which Purchaser or its Affiliates seeks enforcement thereof,
each of such covenants shall be deemed limited to the extent permitted by such
laws.
Section 6.12. Continuity of the Business. Seller has no knowledge of any
--------------------------
state of facts or existing conditions that would be reasonably expected to
prevent the Business from being carried on after the consummation of the
transactions contemplated by this Agreement in substantially the same manner as
that in which the Business is presently conducted; provided, however that Seller
makes no representation as to the assignability of the Airport Concession
Agreements.
VII. CERTAIN ACTIONS AFTER THE CLOSING
---------------------------------
Section 7.1. Purchaser to Act as Agent for Seller. This Agreement shall
------------------------------------
not constitute an agreement to assign any contract right included among the
Assets if any attempted assignment of the same without the consent of the other
party thereto would constitute a breach thereof or in any way adversely affect
the rights of Seller thereunder. If such consent is not obtained or if any
attempted assignment would be ineffective or would adversely affect Seller's
rights thereunder so that Purchaser would not in fact receive all such rights,
then Purchaser may, in its discretion, act as the agent for Seller in order to
obtain for Purchaser the benefits thereunder. Except as otherwise expressly
provided herein, nothing herein shall be deemed to make Purchaser Seller's agent
in respect of the Retained Assets.
Section 7.2. Payment of Liabilities. Following the Closing Date, each of
----------------------
Purchaser and Seller agrees to discharge in accordance with their terms the
Assumed Liabilities and the Excluded Liabilities, respectively.
Section 7.3. Service Agreements. (a) Until consent is obtained to the
------------------
assignment of the Airport Concession Agreements to Purchaser, Purchaser agrees
to perform all obligations of the Seller on behalf of the Seller under each such
Airport Concession Agreement pursuant to a Service Agreement to be entered into
at Closing for each such Airport Concession Agreement in the form of Exhibit B.
---------
In consideration for its agreement to perform all obligations on behalf of
Seller and other agreements set forth in this Agreement, Purchaser shall be
entitled to receive all revenues relating to the Airport Concession Agreements
from and after Closing, pursuant to the terms of each such Airport Concession
Agreement. Seller shall not be entitled to any part of the revenues relating to
the Airport Concession Agreements as they relate to the period beginning on the
Closing Date.
(b) Seller authorizes Purchaser, and Purchaser agrees to use its best
efforts at its sole cost and expense, to obtain approval or consent to the
assignment of the Airport Concession Agreements.
(c) Seller shall maintain its corporate existence during the term of
this Agreement and shall engage in no activity other than as contemplated
hereby.
(d) Notwithstanding anything to the contrary contained in any Service
Agreement, to the extent that the consent of Seller is required for Purchaser to
take any action pursuant to any
-18-
Service Agreement, Seller agrees that it will promptly provide such consent for
no additional consideration upon Purchaser's written request. In addition,
notwithstanding anything to the contrary contained in any Service Agreement,
Seller agrees that it will take any action, or refrain from taking any action,
requested by Purchaser in connection with any Service Agreement, upon
Purchaser's written request, for no additional consideration.
(e) From and after Closing, Purchaser shall defend, indemnify and hold
harmless Seller from and against, and pay or reimburse Seller for, any and all
claims, liabilities, obligations, losses, fines, costs, royalties, proceedings,
deficiencies or damages (whether absolute, accrued, conditional or otherwise and
whether or not arising from third party claims), including out of pocket
expenses and reasonable attorneys' and accountants' fees incurred in the
investigation or defense of any of the same or in asserting any of its rights
hereunder resulting from or arising out, on or after the Closing Date, of (i)
the Airport Concession Agreements (other than breach by Seller which did not
result from Purchaser's instructions) or the purported assignment thereof and
(ii) the execution, delivery and performance (other than breach by Seller) of
any Service Agreement.
VIII. CERTAIN TAX MATTERS
-------------------
Section 8.1. Tax Returns Through Closing. Seller shall prepare and file
---------------------------
on a timely basis all reports and returns of Taxes relating to the Business with
respect to all periods through and including the Closing Date and shall pay or
cause to be paid when due all Taxes relating to the Business for such periods,
including any interest, additions to tax or penalties thereon together with
interest on such additions to tax or penalties. Seller shall be entitled to
receive any Tax refund to which Seller may be entitled in respect of any period
prior to, through and including the Closing Date.
Section 8.2. Subsequent Liability. If, subsequent to the Closing Date,
--------------------
any liability for Taxes relating to the Business is asserted against Purchaser
or the Assets with respect to any period through the Closing Date, Seller shall
indemnify and hold Purchaser harmless from and against, and shall pay, as an
adjustment to the Purchase Price, the full amount of such Tax liability,
including any interest, additions to tax and penalties thereon, together with
interest on such additions to tax or penalties (as well as reasonable attorney's
or other fees and disbursements of Purchaser incurred in determination thereof
or in connection therewith). Seller shall, at its sole expense and in its
reasonable discretion, either settle any Tax claim that may be the subject of
indemnification under this Section 8.2 at such time and on such terms as it
shall deem appropriate or assume the entire defense thereof.
Section 8.3. Allocation of Purchase Price. The Purchase Price shall be
----------------------------
allocated in its entirety among the Assets as agreed by Purchaser and Seller
within thirty (30) days after Closing. Seller, and Purchaser shall comply with
the applicable information reporting requirements of Section 1060 of the Code
and the Treasury regulations promulgated thereunder and shall file all
information and Tax returns (and any amendments thereto) in a manner consistent
with this Section 8.3. If, contrary to the intent of the parties hereto as
expressed in this Section 8.3, any taxing authority makes or proposes an
allocation different from that contained in this Section 8.3, Seller and
Purchaser shall cooperate with each other in good faith to contest such taxing
authority's allocation (or proposed allocation), provided, however, that after
consultation with the
-19-
party adversely affected by such allocation (or proposed allocation), another
party hereto may file such protective claims or returns as may reasonably be
required to protect its interests.
IX. SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION
--------------------------------------------
Section 9.1. Survival of Covenants and Agreements. Other than the
------------------------------------
covenants and agreements contained in Sections 1.3, (including any document
executed at the Closing evidencing the assumption of the Assumed Liabilities)
and obligations specified in Sections 1.3, 1.6, 1.7, 1.8(c), 1.9, 6.7(b), 6.8,
7.2, 7.3 and 8.2, which covenants and agreements shall survive until fully
discharged or performed, and in Sections 4.14 (ERISA), 4.15 (taxes), 4.19
(environmental matters) and 4.22 (labor matters) which shall survive until the
expiration of the relevant statute of limitations, the representations,
warranties, covenants, indemnities and agreements contained in this Agreement
shall survive for a period of one year after the Closing. Except in respect of
the agreements that survive the Closing as provided for in the preceding
sentence (and with respect to the breach thereof, the non-breaching party shall
have all rights available at law or equity for such breach), after the Closing
neither Purchaser nor Seller shall have any recourse against the other as a
result of the breach of any representation, warranty, covenant or agreement
contained herein, any certificate, document or instrument delivered in
connection herewith or otherwise arising out of or in connection with the
transactions contemplated hereby. Without limiting the foregoing, Purchaser
hereby unconditionally and irrevocably waives and releases any and all actual or
potential claims that it may have against Seller (and/or its Affiliates,
directors, employees or agents) regarding any form of representations, warranty,
express or implied, of any kind or type, including warranties of fitness, or any
other claim of liability against Seller (and/or its Affiliates, directors,
employees or agents) of any kind or nature whatsoever, except in respect of
agreements stated herein expressly to survive Closing.
Section 9.2. Indemnification by Purchaser. Purchaser shall indemnify and
----------------------------
hold Seller harmless from and against any and all claims, losses, liabilities,
taxes, fines, penalties, damages, and expenses (including reasonable fees and
disbursements of counsel) suffered or incurred by Seller due to (i) the non-
performance by Purchaser of any of its obligations under this Agreement, (ii)
any failure of Purchaser to comply with any "bulk sales" laws applicable to the
transactions contemplated by this Agreement, (iii) any breach not expressly
waived in writing by Seller occurring or arising out of or in connection with
any of the representations, warranties, covenants or agreements of Purchaser
made to Seller in this Agreement or in any other agreement, certificate,
instrument or other document delivered by or on behalf of Purchaser to Seller or
any of its representatives in connection with the execution of this Agreement or
the consummation of the transactions contemplated hereby, or (iv) any action
taken in connection with, and all matters pertaining to or in any manner
concerning Purchaser's performance of Seller's obligations pursuant to any
Service Agreement.
Section 9.3. Indemnification by Seller. Seller shall indemnify and hold
-------------------------
Purchaser harmless from and against any and all claims, losses, liabilities,
taxes, fines, penalties, damages, and expenses (including reasonable fees and
disbursements of counsel) suffered or incurred by Purchaser due to (i) the
failure of Seller to discharge or pay any liability, obligation, indebtedness,
expense of, or claim undertaken or assumed by Seller pursuant to this Agreement,
(ii) any breach (not expressly waived in writing by Purchaser) occurring or
arising out of or in
-20-
connection with any of the representations, warranties, covenants or agreements
of Seller made to Purchaser in this Agreement or in any other agreement,
certificate, instrument or other document delivered by or on behalf of Seller to
Purchaser or any of its representatives in connection with the execution of this
Agreement or the consummation of the transactions contemplated hereby, (iii) any
claims from any of Seller's employees, including any claims for severance,
benefits, or wrongful termination claims, or (iv) any act, omission, or other
event giving rise to a claim that occurred prior to or with respect to period
ending through Closing.
Section 9.4. Procedures with Respect to Indemnity. The indemnitee shall
------------------------------------
give the indemnitor prompt written notice of any claim, demand, assessment,
suit, or proceeding to which the indemnity set forth in Section 9.2 or 9.3
applies. The indemnitor shall have the right to control the defense or
settlement of any such action subject to the provisions set forth below, but the
indemnitee may, at its election, participate in the defense of any action or
proceeding at its sole cost and expense. Should the indemnitor fail to defend
any such action, then, in addition to any other remedies, the indemnitee may
settle (provided it shall give the indemnitor not less than fifteen (15) days'
prior written notice of the terms thereof and permit the indemnitor then to
undertake such defense) or defend such action or proceeding through counsel of
its own choosing and may recover from the indemnitor the amount of such
settlement, demand, or any judgment or decree and all of its costs and expenses,
including reasonable fees and disbursements of counsel. The indemnitor will not
compromise or settle any claim without the prior written consent of the
indemnitee, provided, however, that if such approval is withheld the liability
of the indemnitor shall be limited to the total sum represented in the amount of
the proposed compromise or settlement and the amount of the indemnitee's
counsel's fees incurred in defending such claim, as permitted by the preceding
sentence, accrued at the time said approval is withheld.
Section 9.5. Exclusive Remedy. Neither Seller nor Purchaser shall have
----------------
any obligation to the other party for any matter described in this Article IX,
except upon compliance by the other party with the provisions of this Article
IX. Indemnity shall be due only to the extent of the loss or damage actually
suffered, reduced by any offsetting or related asset or service received and by
any recovery from any insurer or other third party. Neither party shall be
required to indemnify the other party under this Article IX for any breach of
any representation or warranty contained in this Agreement unless written notice
of a claim under this Article IX was received by the party within the pertinent
survival period specified in this Article IX and unless the aggregate amount of
all claims against the party for breaches of its representations and warranties
exceeds Fifty Thousand Dollars (US$50,000.00). Seller and Purchaser each waive
any all claims for punitive damages exemplary or similar against the other
party. Notwithstanding anything herein to the contrary, the aggregate liability
of either party to the other party for breaches of representations or warranties
under this Article IX shall be limited to 7.5% of the Purchase Price. The
indemnification provided in this Article IX shall be the sole and exclusive
remedy for any breach of any representation or warranty made by Seller or
Purchaser in this Agreement or in any document delivered pursuant to this
Agreement.
X. TERMINATION
-----------
Section 10.1. Termination Events. Subject to the provisions of Section
------------------
10.2, this Agreement may, by written notice given at or prior to the Closing in
the manner hereinafter provided, be terminated and abandoned:
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(a) By any party if a material default or breach shall be made by
another party with respect to the due and timely performance of any of its
covenants and agreements contained herein, or with respect to the due compliance
with any of its representations and warranties contained herein, and such
default cannot be cured and has not been waived;
(b) By written mutual consent of the parties; or
(c) By either Seller or Purchaser if the Closing shall not have
occurred for any reason, other than the failure of the party seeking termination
to fulfill its obligations hereunder, on or before the date which is ninety (90)
days after the date hereof (provided, in the event a request for additional
information is made to either party by a governmental entity following the
submission of the premerger notification as provided in Section 6.3 hereof, then
the ninety (90) days period shall be extended by the amount of time given to
such party to respond to any such request as well as the amount of time reserved
by such governmental authority to respond to such submission), or such later
date as may be agreed upon in writing by the parties.
Section 10.2. Effect of Termination. In the event this Agreement is
---------------------
terminated pursuant to Section 10.1, all further obligations of the parties
hereunder shall terminate, no party shall have any right against the other party
hereto, except as set forth in this Section 10.2, and each party shall bear its
own costs and expenses, except that if this Agreement is terminated by Seller or
Purchaser because one or more of the conditions to such party's obligations
hereunder is not satisfied as a result of Purchaser's or Seller's, as the case
may be, failure to comply with its obligations under this Agreement, it is
expressly agreed and understood that the terminating party's right to pursue all
legal remedies for breach of contract or otherwise, including, without
limitation, damages relating thereto, shall survive such termination unimpaired.
Notwithstanding the foregoing, however, the termination of this Agreement by any
party shall not affect the continued effectiveness and validity of the
Confidentiality Agreement.
XI. GUARANTIES
----------
Section 11.1. Guaranty of ▇▇▇▇▇, ▇.▇. As a material inducement to Seller
-----------------------
to enter into this agreement, and for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, ▇▇▇▇▇, ▇.▇., a Societe
Anonyme organized under the laws of France, ("Havas") unconditionally and
irrevocably guarantees to Seller the prompt and full payment and performance of
all of the obligations of Purchaser under this agreement and under any
agreement, instrument or certificate delivered to Seller by Purchaser pursuant
to this Agreement. The foregoing is an absolute unconditional irrevocable
guaranty of payment and performance (not a guaranty of collection); and if for
any reason any obligation of Purchaser set forth in this agreement or any such
other document is not performed, or payment is not made when due, Havas
undertakes to perform promptly each such obligation, and pay promptly each such
amount, without counterclaim, set-off, deduction or reduction whatsoever. No
exercise or nonexercise by Seller of any right hereby given it, no dealing by
Purchaser with Seller or any other person, and no change, impairment, or
suspension of any right or remedy of Seller shall in any way affect any of the
obligations of Havas hereunder or give Havas any recourse against Seller. Havas
further waives and agrees not to assert or take advantage of, and Havas agrees
that its obligations under this Agreement shall be absolute and unconditional,
irrespective of (a) any right to require Seller to proceed against Purchaser or
any other person, or exhaust any security
-22-
held by it or to pursue any other remedy in its power before proceeding against
Havas; (b) any defense that may arise by reason of the failure of Seller to file
or enforce a claim against the estate (either in administration, bankruptcy, or
any other proceedings) of any other person; (c) the validity, enforceability,
disaffirmance, settlement or compromise (by any Person or entity, including a
trustee in bankruptcy) of the obligations guaranteed hereunder by Havas
(collectively, the "Havas Guaranteed Obligations"), (d) the waiver or consent by
Seller with respect to any provision of any instrument evidencing the Havas
Guaranteed Obligations, (e) any change of the time, manner or place of
performance or payment, or any other term of any of the Havas Guaranteed
Obligations, (f) any law, regulation or order of any jurisdiction affecting any
terms of any of the Havas Guaranteed Obligations or rights of Seller with
respect hereto (including any estimation, reduction or valuation of the Havas
Guaranteed Obligations made in connection with any proceedings involving
Purchaser or Havas filed under the Federal Bankruptcy Code, whether pursuant to
Section 502 of the Federal Bankruptcy Code or any other Section thereof), and
(g) any other circumstances that might otherwise constitute a legal or equitable
discharge or defense of a guarantor. Havas further agrees that, to the extent
that Purchaser makes a payment to the Seller which payment or any part thereof
is subsequently invalidated, declared to be fraudulent or preferential, set
aside or required to be repaid to its estate, trustee, receiver or any other
party, under any bankruptcy law, state or federal law, common law or equitable
cause, then to the extent of such payment or repayment, the Havas Guaranteed
Obligations or part thereof that has been paid, reduced or satisfied by such
amount shall be reinstated and continue in full force and effect as of the date
such initial payment, reduction or satisfaction occurred. Havas waives all set-
offs and counterclaims and all presentments, demands for performance, notices of
dishonor and notices. After all of the Havas Guaranteed Obligations have been
performed or satisfied in full, Havas shall be subrogated to the rights and
remedies of Purchaser with respect to Seller. Havas agrees that its obligations
under this Agreement shall be irrevocable. Notwithstanding anything to the
contrary contained herein, Havas shall not be obligated to pay or perform any
obligation of Purchaser as to which performance by the Purchaser is excused
under this Agreement or any other relevant agreement.
Section 11.12. Guaranty of The ▇▇▇▇▇▇▇▇ Group, Inc. As a material
------------------------------------
inducement to Purchaser to enter into this agreement, and for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, The
▇▇▇▇▇▇▇▇ Group, Inc., a Delaware corporation, ("▇▇▇▇▇▇▇▇")unconditionally and
irrevocably guarantees to Purchaser the prompt and full payment and performance
of all of the obligations of Seller and Seller's Affiliates under this Agreement
(including without limitation, the performance of the non-solicitation and non-
competition obligations set forth in Section 6.7 and 6.8 hereof by ▇▇▇▇▇▇▇▇ and
Seller's Affiliates) and under any agreement, instrument or certificate
delivered to Purchaser by Seller pursuant to this Agreement. The foregoing is an
absolute unconditional irrevocable guaranty of payment and performance (not a
guaranty of collection); and if for any reason any obligation of Seller set
forth in this agreement or any such other document is not performed, or payment
is not made when due, ▇▇▇▇▇▇▇▇ undertakes to perform promptly each such
obligation, and pay promptly each such amount, without counterclaim, set-off,
deduction or reduction whatsoever. No exercise or nonexercise by Purchaser of
any right hereby given it, no dealing by Seller with Purchaser or any other
person, and no change, impairment, or suspension of any right or remedy of
Purchaser shall in any way affect any of the obligations of ▇▇▇▇▇▇▇▇ hereunder
or give ▇▇▇▇▇▇▇▇ any recourse against Purchaser. ▇▇▇▇▇▇▇▇ further waives and
agrees not to assert or take advantage of, and ▇▇▇▇▇▇▇▇ agrees that its
obligations under this Agreement shall be
-23-
absolute and unconditional, irrespective of (a) any right to require Purchaser
to proceed against Seller or any other person, or exhaust any security held by
it or to pursue any other remedy in its power before proceeding against
▇▇▇▇▇▇▇▇; (b) any defense that may arise by reason of the failure of Purchaser
to file or enforce a claim against the estate (either in administration,
bankruptcy, or any other proceedings) of any other person; (c) the validity,
enforceability, disaffirmance, settlement or compromise (by any Person or
entity, including a trustee in bankruptcy) of the obligations guaranteed
hereunder by ▇▇▇▇▇▇▇▇ (collectively, the "▇▇▇▇▇▇▇▇ Guaranteed Obligations"), (d)
the waiver or consent by Purchaser with respect to any provision of any
instrument evidencing the ▇▇▇▇▇▇▇▇ Guaranteed Obligations, (e) any change of the
time, manner or place of performance or payment, or any other term of any of the
▇▇▇▇▇▇▇▇ Guaranteed Obligations, (f) any law, regulation or order of any
jurisdiction affecting any terms of any of the ▇▇▇▇▇▇▇▇ Guaranteed Obligations
or rights of Purchaser with respect hereto (including any estimation, reduction
or valuation of the ▇▇▇▇▇▇▇▇ Guaranteed Obligations made in connection with any
proceedings involving Seller or ▇▇▇▇▇▇▇▇ filed under the Federal Bankruptcy
Code, whether pursuant to Section 502 of the Federal Bankruptcy Code or any
other Section thereof), and (g) any other circumstances that might otherwise
constitute a legal or equitable discharge or defense of a guarantor. ▇▇▇▇▇▇▇▇
further agrees that, to the extent that Seller makes a payment to the Purchaser
which payment or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required to be repaid to its estate,
trustee, receiver or any other party, under any bankruptcy law, state or federal
law, common law or equitable cause, then to the extent of such payment or
repayment, the ▇▇▇▇▇▇▇▇ Guaranteed Obligations or part thereof that has been
paid, reduced or satisfied by such amount shall be reinstated and continue in
full force and effect as of the date such initial payment, reduction or
satisfaction occurred. ▇▇▇▇▇▇▇▇ waives all set-offs and counterclaims and all
presentments, demands for performance, notices of dishonor and notices. After
all of the ▇▇▇▇▇▇▇▇ Guaranteed Obligations have been performed or satisfied in
full, the ▇▇▇▇▇▇▇▇ shall be subrogated to the rights and remedies of Seller with
respect to Purchaser. ▇▇▇▇▇▇▇▇ agrees that its obligations under this Agreement
shall be irrevocable. Notwithstanding anything to the contrary contained herein,
▇▇▇▇▇▇▇▇ shall not be obligated to pay or perform any obligation of Seller as to
which performance by the Seller is excused under this agreement or any other
relevant Agreement.
XII. MISCELLANEOUS
-------------
Section 12.1. Expenses Relating to the Transaction. (a) Purchaser shall
------------------------------------
bear the cost of any documentary stamp, sales, excise, transfer, bulk sales and
similar taxes payable in respect of the transfer of the Assets hereunder.
Purchaser shall bear the cost of the filing fee for the pre-merger notification
required pursuant to the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976,
as amended.
(b) Each party to this Agreement shall pay its own costs, fees and
expenses (including all legal and accounting fees incurred by it) relating to
this Agreement, the negotiations leading up to this Agreement and the
transactions contemplated by this Agreement.
Section 12.2. Access to Books and Records. Subject to the provisions of
---------------------------
the Confidentiality Agreement, Seller shall allow Purchaser and its authorized
representatives reasonable access to the financial books and records relating to
the Business at such reasonable times as Purchaser may request from time to time
for a period of three years from the Closing
-24-
Date.
Section 12.3. Risk of Loss. The risk of loss or damage to any of the
------------
tangible property, transfer of which is contemplated hereby, shall remain with
Seller until the Closing.
Section 12.4. Amendment. This Agreement shall not be amended or modified
---------
except by a writing duly executed by the parties hereto.
Section 12.5. Entire Agreement. This Agreement, including the Exhibits
----------------
and Schedules hereto and the other instruments, agreements and documents
delivered pursuant to this Agreement, and the Confidentiality Agreement contain
all the terms, conditions and representations and warranties agreed upon by the
parties relating to the subject matter of this Agreement and supersede all prior
agreements, negotiations, correspondence, undertakings and communications of the
parties, oral or written, respecting such subject matter.
Section 12.6. Headings. The headings contained in this Agreement are
--------
intended solely for convenience and shall not affect the rights of the parties
to this Agreement.
Section 12.7. Notices. Any notice, demand or request required or
-------
permitted to be given under the provisions of this Agreement shall be in
writing, addressed to the following addresses, or to such other address as any
party may request,
To Seller: ▇▇▇▇▇▇▇▇ AIRPORT ADVERTISING, INC.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Copy to: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇.▇.
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
To Purchaser: SKY SITES, INC.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Copy to: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
To Guarantors: ▇▇▇▇▇, ▇.▇.
-25-
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Copy to: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
The ▇▇▇▇▇▇▇▇ Group, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Copy to: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇.▇.
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
and shall be deemed to have been duly delivered and received (a) on the date of
personal delivery, or (b) on the date of transmission when sent by facsimile
transmission during normal business hours with telephone confirmation of receipt
and delivery of original by hand or next business day delivery service, or (c)
on the date of receipt, if mailed by registered or certified mail, postage
prepaid and return receipt requested, or (d) on the date of a signed receipt, if
sent by an overnight delivery service, but only if sent in the same manner to
all persons entitled to receive notice or a copy.
Section 12.8. Severability. If any provision of this Agreement is held to
------------
be invalid and unenforceable for any reason, it shall be adjusted rather than
voided, if possible, in order to achieve the intent of the parties to this
Agreement to the extent possible. In any event, all other provisions of this
Agreement shall be deemed valid and enforceable to the full extent possible.
Section 12.9. Waiver. Waiver of any term or condition of this Agreement
------
by any party shall only be effective if in writing and shall not he construed as
a waiver of any subsequent breach or failure of the same term or condition, or a
waiver of any other term or condition of this Agreement.
Section 12.10. Counterparts and Facsimile Signatures. This Agreement may
-------------------------------------
be signed in counterparts with the same effect as if the signatures to each
counterpart were upon a single instrument, and all such counterparts together
shall be deemed an original of this Agreement. For purposes of this Agreement, a
facsimile copy of a party's signature shall be sufficient to bind such party.
-26-
Section 12.11. Governing Law and Jurisdiction. This Agreement shall be
------------------------------
governed by and construed in accordance with the laws of the State of New York,
without regard to the conflicts of laws principles thereof. In the event of any
suit, action or proceeding among the parties, the prevailing party shall be
entitled to reasonable attorneys' fees and other costs and expenses (including
without limitation travel expenses) incurred in litigating, enforcing or
otherwise resolving or settling such suit, action or proceeding.
Section 12.12. Assignment. This Agreement may not be assigned by any
----------
party without the prior written consent of the other parties, provided that
Purchaser may assign this Agreement to a 100% direct or indirect subsidiary of
Vivendi.
Section 12.13. Remedies. Any remedy chosen by the parties hereto shall be
--------
cumulative and not exclusive and shall be in addition to any other remedies
which any party may have under this Agreement or otherwise.
Section 12.14. Third Parties. Except as specifically set forth or
-------------
referred to herein, nothing herein expressed or implied is intended or shall be
construed to confer upon or give to any person other than the parties hereto and
their successors or assigns any rights or remedies under or by reason of this
Agreement.
Section 12.15. Affiliates. The term "Affiliate" of any natural person,
----------
corporation, firm, joint venture, partnership, association, enterprise, trust,
unincorporated organization, government or any department or agency of any
government ("Person") means any Person directly or indirectly controlling,
controlled by or under direct or indirect common control with such Person. A
Person shall be deemed to control another Person if the controlling Person owns
10% or more of any class of voting securities (or other ownership interests) of
the controlled Person or possesses, directly or indirectly, the power to direct
or cause the direction of the management or policies of the controlled Person,
whether through ownership of stock by contract or otherwise.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as of
the date set forth above.
PURCHASER:
SKY SITES, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Chief Executive Officer
SELLER:
▇▇▇▇▇▇▇▇ AIRPORT ADVERTISING, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary/Treasurer
-27-
GUARANTOR (AS TO SECTION 11.1):
▇▇▇▇▇, ▇.▇.
By: /s/ Michel Boutinard Rouelle
------------------------------
Name: Michel Boutinard Rouelle
Title: Chairman of the Board/HMC
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Deputy Managing Director
GUARANTOR (AS TO SECTION 11.2):
THE ▇▇▇▇▇▇▇▇ GROUP, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Co-President and Chief Financial Officer
-28-