STOCK PURCHASE AGREEMENT - Merger, Acquisition 股票购买协议合并收购

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1、STOCK PURCHASE AGREEMENTThis Purchase Agreement is entered into as of August 19, 200X by and between Quote Drivex, Inc., a Colorado corporation (“Seller”), Quote Services Corporation, a Colorado corporation (“QSC”), and Quote Communications International Inc., a Delaware corporation (“Quote” and, co

2、llectively with Seller and QSC, the “Quote Parties”), on the one hand, and Drivex Holdings LLC, a Delaware limited liability company (“Buyer”), on the other hand.RECITALSA.Quote owns all of the outstanding capital stock of QSC;B.QSC owns all the outstanding capital stock of Quote Drivex Holdings, In

3、c., a Delaware corporation (“Holding”);C.Holding owns all of the outstanding capital stock of Seller;D.Seller owns all of the outstanding limited liability company interests (the “LLC Interests”) of GRRP LLC, a Delaware limited liability company (“Company”), and immediately prior to the Closing (as

4、defined herein), Seller will contribute certain of the assets relating to the Rodney Transferred Business (as defined herein) to Company, and Company shall assume certain of the liabilities relating to the Rodney Transferred Business, pursuant to the terms of the Contribution (as defined herein);E.C

5、oncurrently herewith, the Quote Parties and Buyer are entering into that certain Purchase Agreement (the “Drivexter Purchase Agreement”) pursuant to which the Quote Parties have agreed to contribute assets and liabilities relating to the Transferred Business (as defined in the Drivexter Purchase Agr

6、eement) to a newly formed Delaware limited liability company (“SGN LLC”), and sell all of the interests in SGN LLC to Buyer on the terms and conditions set forth therein;F.After entertaining offers for all or a portion of Sellers assets from multiple prospective purchasers and without waiving any ri

7、ghts, conditions, benefits or obligations contained herein or in the Drivexter Purchase Agreement, Seller believes that the Transactions (as defined herein) contemplated under this Agreement (as defined herein), as well as the transactions contemplated under the Drivexter Purchase Agreement, represe

8、nt the best available offer to purchase the assets subject to this Agreement and the Drivexter Purchase Agreement and constitute reasonably equivalent value for the LLC Interests, and accordingly Seller is willing to enter into this Agreement and the Drivexter Purchase Agreement and to consummate th

9、e Transactions contemplated hereunder and the transactions contemplated by the Drivexter Purchase Agreement;G.Seller desires to sell, and Buyer desires to buy, the LLC Interests for the consideration and on the terms and conditions described herein; andH.As an inducement to Buyer to enter into this

10、Agreement and to consummate the Transactions, Quote and QSC have become parties to this Agreement solely with respect to the matters expressly identified herein.AGREEMENTIn consideration of the mutual promises contained in this Agreement and intending to be legally bound, the parties agree as follow

11、s:ARTICLE I DEFINITIONS1.1 General Rules of Construction. For all purposes of this Agreement and the Exhibits, Schedules and Disclosure Schedules delivered pursuant to this Agreement, except as otherwise expressly provided or unless the context otherwise requires:(a) terms include the plural as well

12、 as the singular;(b) all accounting terms not otherwise defined have the meanings assigned under GAAP, as in effect from time to time;(c) all references in this Agreement to designated “Articles,” “Sections” and other subdivisions are to the designated Articles, Sections and other subdivisions of th

13、e body of this Agreement;(d) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section or other subdivision;(e) “or” is not exclusive; and(f) “including” and “includes” will be deemed to be followed by “but not

14、 limited to” and “but is not limited to,” respectively.1.2 Definitions. As used in this Agreement and the Exhibits and Schedules delivered pursuant to this Agreement, the following definitions will apply:“Accrued Liability” is defined in Section 6.5(c)(iv).“Action” means any action, complaint, petit

15、ion, investigation, suit or other proceeding, whether administrative, civil or criminal, in law or in equity, or before any arbitrator or Governmental Entity.“Additional Equity” is defined in Section 5.10(e).“Adjusted Base Purchase Price” means the Base Purchase Price, as adjusted (if applicable) pu

16、rsuant to Section 2.7. “Adjustment Fraction” means, with respect to any month, the number of days elapsed in that month divided by the total number of days in that month. “Advertising and Telecommunications Commitments Side Letter” means the Advertising and Telecommunications Commitments Side Letter

17、 by and between Quote and Quote Corporation, on the one hand, and Buyer, Company and SGN LLC, on the other hand, to be effective with respect to Company at the Closing, substantially in the form of Exhibit A to this Agreement.“Affiliate” means a Person that directly, or indirectly through one or mor

18、e intermediaries, controls, or is controlled by, or is under common control with, a specified Person. The term “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”) means the possession of the power to direct the management and policies of the re

19、ferenced Person, whether through ownership interests, by contract or otherwise.“Agreement” means this Purchase Agreement by and between the Quote Parties, on the one hand, and Buyer, on the other hand, as amended, supplemented, restated or otherwise modified from time to time, together with all Exhi

20、bits and Schedules delivered pursuant to this Agreement.“Agreement Accounting Principles” means GAAP, together with the principles and adjustments set forth in Section 1.2AAP of Sellers Disclosure Schedule.“Approval” means any approval, authorization, consent, qualification, Order, registration, or

21、any waiver of any of the foregoing, required by Law or by assertion of any Governmental Entity to be obtained from, or any notice, statement or other communication required to be filed with or delivered to, any Governmental Entity.“Approval Filings” is defined in Section5.4(a).“Assumed Affiliate Pay

22、ables” means (i) all accounts payable to Quote with respect to third party invoices to the extent such amounts have not actually been paid by Quote, payroll liabilities of Quote to the extent such amounts have not already been paid by Quote, and (ii) other payables to Quote with respect to “Headquar

23、ters Allocations,” “Quote Services Corp.,” “Quote BRI-Facilities Expense,” “Quote IT” and “Quote Communications Services,” in each case determined consistent with the December 31, 2001 Holding Audited Balance Sheet.“B & S Systems Transition Plan” is defined in Section 5.19.“Bankruptcy Code” means th

24、e United States Bankruptcy Code (11 U.S.C. 101 et seq.), as amended from time to time, and any successor statute.“Base Purchase Price” means $4,300,000,000.“Billing and Collection Agreement” means the Agreement for the Provision of Billing and Collection Services for Directory Publishers by and betw

25、een Quote Corporation and Company to be entered into at the Closing, substantially in the form of ExhibitG to this Agreement.“Business” means the business of publishing of telephone directory products and services consisting principally of searchable (e.g., by alphabet letter or category) multiple t

26、elephone listings and classified advertisements that are delivered or otherwise made available to end users in tangible media (e.g., paper directories, CD-ROM) or electronic media (e.g., Internet), as presently conducted by Seller. “Business Day” means any day other than a Saturday, a Sunday or a da

27、y on which banks in New York, New York or Denver, Colorado are authorized or obligated by Law or executive order to close.“Buyer” is defined in this Agreements opening paragraph.“Buyer Indemnified Persons” is defined in Section 9.1.“Buyer Joinder” means the Joinder, by and between Buyer, the Quote P

28、arties and Quote Corporation, to be entered into at the Closing, substantially in the form of ExhibitT to this Agreement.“Buyer Material Adverse Effect” means any change in or effect on Buyer or the business of Buyer or any part thereof that would materially impair the validity or enforceability of

29、the Transaction Documents or materially adversely affect or delay Buyers ability to consummate the Closing or perform its obligations under the Transaction Documents; provided that neither of the following will constitute a Buyer Material Adverse Effect: (a)any change resulting from or relating to g

30、eneral economic conditions or (b)any change generally affecting the industries in which Seller operates.“Buyer Organizational Documents” is defined in Section 4.1.“Buyer Pension Plan” is defined in Section 6.5(c)(i).“Buyer Securities” means the subordinated notes or preferred stock issued, if at all

31、, by Buyer or its Affiliate and having the terms set forth in Schedule 1.2BS.“Buyers Notice” is defined in Section 5.10(e).“Buyers Separation Cost Limit” is defined in Section 5.16.“CBAs” is defined in Section 3.16.“Closing” means the consummation of the purchase and sale of the LLC Interests under

32、this Agreement.“Closing Date” means the date of the Closing.“Closing Date Working Capital” is defined in Section 2.9(a).“Closing Purchase Price” is defined in Section 2.8.“COBRA” is defined in Section 6.5(e).“Code” means the Internal Revenue Code of 1986, as amended, and the related regulations and

33、published interpretations.“Commercial Agreement Joinder” means the Joinder, by and between the Quote Parties, Quote Corporation, Company and Buyer, to be effective with respect to Company at the Closing, substantially in the form of Exhibit S to this Agreement.“Commercial Agreements” means the Buyer

34、 Joinder, the Directory List License Agreement, the Expanded Use List License Agreement, the Billing and Collection Agreement, the Master Sales Agent Agreement (to the extent that the parties agree on the terms for such an agreement between the date hereof and the Closing Date pursuant to Section 5.

35、13).“Company” is defined in this Agreements Recitals.“Company Inbound License Agreements” is defined in Section 3.14(e).“Confidentiality Agreement” is defined in Section 10.9.“Content” is defined in the Drivexter Purchase Agreement.“Contract” means any legally binding agreement, arrangement, bond, c

36、ommitment, franchise, indemnity, indenture, instrument, lease or license, whether or not written.“Contributed Assets” is defined in Section2.1 of the Contribution Agreement.“Contribution” is defined in Section 2.6(a).“Contribution Agreement” is defined in Section 2.6(a).“Controlled Group” is defined

37、 in Section 3.17(c).“Copyrights” is defined in Section 3.14(a).“Current Assets” means the sum of (a)Local Billed Accounts Receivable, (b)National Billed Accounts Receivable and (c) affiliate receivables as set forth in “Accounts receivable net” line item of the Audited Holding Financial Statements.“

38、Current Liabilities” means (i)accounts payable to third-party vendors, plus (ii)Assumed Affiliate Payables, plus (iii) all other current liabilities determined, in each case, in a manner consistent with the line items included in “Total current liabilities” in the Holding Audited Financial Statement

39、s and calculated in accordance with the Agreement Accounting Principles, except (x) Excluded Current Liabilities, and (y) liabilities relating to accrued pension and OPEB liabilities and deferred revenue and customer deposits.“Debt Financing” is defined in Section 4.6.“Debt Financing Commitment Lett

40、er” is defined in Section 4.6.“Drivex Pension Participant” is defined in Section 6.5(c)(i).“Drivexter Closing” means the Closing as such term is defined in the Drivexter Purchase Agreement.“Drivexter Closing Date” means the Closing Date as such term is defined in the Drivexter Purchase Agreement.“Dr

41、ivexter Purchase Agreement” is defined in this Agreements Recitals.“Directory List License Agreement” means the License Agreement for the Use of Directory Publisher Lists and Directory Delivery Lists by and between Quote Corporation and Company to be entered into at the Closing, substantially in the

42、 form of ExhibitE to this Agreement.“Disclosure Schedule” means Sellers Disclosure Schedule and Buyers Disclosure Schedule attached to this Agreement. The sections of each of Sellers and Buyers Disclosure Schedule are numbered to correspond to the applicable Sections of this Agreement and, together

43、with all matters under such heading, are deemed to qualify only that section; provided, however, that information included in any section of either Disclosure Schedule will be deemed to be included in another section of such Disclosure Schedule, but only to the extent the applicability of such infor

44、mation to that section of such Disclosure Schedule is reasonably apparent.“Domain Names” is defined in Section 3.14(a).“EBITDA” means, with respect to any Person for any period, earnings before interest, income taxes, depreciation and amortization as each such item is calculated in accordance with G

45、AAP for such Person during such period.“Employee” is defined in Section 3.17(a).“Encumbrance” means any claim, charge, easement, encumbrance, lease, covenant, security interest, lien, option, pledge, rights of others, or restriction (whether on voting, sale, transfer, disposition or otherwise), whet

46、her imposed by agreement, understanding, Law, equity or otherwise, except for any restrictions on transfer generally arising under any applicable federal or state securities law.“Environmental Laws” means any and all Laws applicable to the Rodney Transferred Business relating to pollution or protect

47、ion of human health, the environment or natural resources.“Equity Securities” means any capital stock or other equity interest or any securities convertible into or exchangeable for capital stock or any other rights, warrants or options to acquire any of the foregoing securities.“ERISA” means the Em

48、ployee Retirement Income Security Act of 1974, as amended, and the related regulations and published interpretations.“Estimated Excess Working Capital” is defined in Section 2.9(e).“Estimated Working Capital” is defined in Section2.8.“Exchange Act” means the Securities Exchange Act of 1934, as amend

49、ed.“Excluded Affiliate Payables” means all payables to Quote and its Affiliates except the Assumed Affiliate Payables.“Excluded Current Liabilities” means (i) Excluded Affiliate Payables, (ii) short term borrowings from Affiliates, (iii) current income taxes payable by Quote, (iv) dividends payable

50、to Quote, (v) merger related reserves, (vi) general reserves, (vii) errors and omissions reserves (included within the “Other accrued liabilities” line item in the Holding Audited Financial Statements), (viii) accrued taxes, (ix) “Capital Funding Drivex Holdings,” and (x) bank overdrafts, in each ca

51、se, such item determined consistent with the Holding Audited Financial Statements. “Excluded Liabilities” has the meaning set forth in Section 2.4 of the Contribution Agreement.“Existing Quote Group” is defined in Section 3.14.“Expanded Use List License Agreement” means the License Agreement for the

52、 Expanded Use of Subscribed List Database Load and Updates by and between Quote Corporation and Company to be entered into at the Closing, substantially in the form of ExhibitF to this Agreement.“Filing Party” is defined in Section 6.1(f).“Final Additional Equity Commitment” is defined in Section 5.

53、10(e).“Final Statement” is defined in Section2.9(a).“Financing” is defined in Section 4.6.“Financing Fees” means (i) investment banking fees, (ii) fees of financing institutions with respect to the Debt Financing required for the Closing that are incurred and paid by Buyer, such as commitment fees a

54、nd ticking fees, in each case, not to exceed the amount of such fees as set forth in engagement letters and fee letters, complete copies of which have been delivered to Seller prior to the date hereof and (iii) legal fees, consulting fees, accounting fees and other professional fees of such financia

55、l institutions.“Fiscal Measurement Period” is defined in Section 5.4(b)(iii)(C).“Future Periods” is defined in Section 5.4(b)(iii)(A).“GAAP” means generally accepted accounting principles in the United States of America as consistently applied.“Governmental Entity” means any government or any agency

56、, bureau, board, commission, court, department, official, political subdivision, tribunal or other instrumentality of any government, whether Federal, state or local, domestic or foreign.“Hazardous Materials” means all substances, wastes and materials, including petroleum, petroleum products, asbest

57、os and polychlorinated biphenyls, that are regulated pursuant to Environmental Laws.“Holding” is defined in this Agreements Recitals.“Holding Audited Financial Statements” means the audited balance sheets of Holding as at December31, 2000 and December31, 2001, and audited statements of income and ca

58、sh flows of Holding for the twelve months ended December31, 1999, December31, 2000 and December31, 2001 together with an opinion of Sellers independent accounting firm containing no exceptions or qualifications.“Holding Financial Statements” means the Holding Audited Financial Statements and the Hol

59、ding Unaudited Financial Statements. “Holding Unaudited Financial Statements” means the unaudited balance sheet of Holding as of June30, 2002 and the unaudited statement of income of Holding for the six months ended June30, 2002.“HSR Act” means the HartScottRodino Antitrust Improvements Act of 1976,

60、 as amended, and the related regulations and published interpretations.“Included Claims” is defined in Section 9.4(a).“Indebtedness” of any Person shall mean, without duplication, (a) all indebtedness for borrowed money or issued in exchange or substitution for borrowed money (including amounts draw

61、n against overdraft lines of credit), (b) all liabilities of such Person evidenced by any note, bond, debenture or other debt security, (c) all liabilities of such Person for the deferred purchase price of property with respect to which such Person is liable, contingently or otherwise, (d) all liabi

62、lities under capitalized or synthetic leases with respect to which such Person is liable, contingently or otherwise, as obligor, guarantor or otherwise, or with respect to which obligations another Person ensures a creditor against loss, and (e) liabilities described in clauses (a) through (d) that

63、are guaranteed in any manner by such Person (including guarantees in the form of an agreement to repurchase or reimburse) and any fees, penalties or accrued and unpaid interest on the foregoing.“Indemnifiable Claim” is defined in Section 9.3(d).“Indemnified Party” is defined in Section 9.3(a).“Indem

64、nifying Party” is defined in Section 9.3(a).“Independent Accountants” is defined in Section2.9(c).“Inquiry” is defined in Section 5.4(d).“Insolvent” means, as to any Person, that: (i) (A) the present fair salable value of its assets is less than the amount that will be required to pay its probable l

65、iability on its existing debts as they become absolute and matured or (B) the sum of such Persons debts (as such term is defined in Section 101 of the Bankruptcy Code) is greater than all of its property, at a fair valuation, exclusive of property transferred, concealed, or removed with intent to hinder, delay or defraud its creditors; (ii) such Person is a defendant in an action for money damages and is reasonably likely to be unable to satisfy any judgment which has been rendered against it in such ac