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AGREEMENT
1. For Redemption of Joint Venture Interest and Retirement of Joint
Venture Partner;
2. For Dissolution, Winding up Affairs, and Termination of Joint Venture;
3. For Assignment of Software Licenses;
4. for Assignment of Lease.
This Agreement ("Agreement") is made, entered into and effective as of
April 1, 1994, by and between VIS, Inc., ("VIS"), Pacific Volt Information
Systems, also known as "PacVis" ("JV"), Pacific Bell Directory (Directory), PBD
Holdings (PBD), Volt Information Sciences, Inc. (Volt), and Volt Orangaca Real
Estate Corp. (Landlord). Directory is the parent of PBD, and Volt is the
parent of VIS. Directory and Volt are made parties to this Agreement for the
purpose of consenting to the terms and conditions of this Agreement. Landlord
is the landlord under the lease mentioned in Section 12 of this Agreement and
is made a party to this Agreement for the purpose of agreeing to the language
in Section 12 of this Agreement assigning the lease and recognizing the lease
as continuing in full force and effect with PBD as the new tenant.
VIS and PBD entered into a Joint Venture Agreement on the 12th day of
December 1986 ("JVA") which created JV, a prepress joint venture. Any language
in the JVA inconsistent with the terms and conditions of this Agreement is
hereby amended and superseded by this Agreement to the extent of any
inconsistency.
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In consideration of the mutual promises and covenants hereinafter set
forth, the undersigned, and each of them, hereby agree as follows:
1(a) Effective April 1, 1994, JV hereby redeems from VIS and VIS hereby
sells and assigns to JV all of VIS's right, title and interest in JV and in all
of JV's assets, including, without limitation, licenses and leases, customer
lists, trademarks, trade names, copyrights, contracts, furniture, fixtures,
money, and supplies. As consideration for the above redemption and assignment,
JV will compensate VIS in the following manner:
Payment from JV to VIS for its 50%
interest in JV, excluding
goodwill of JV $6,612,306
An additional payment by JV to VIS, which
shall be treated as a "guaranteed payment"
under Section 736 of the Internal Revenue
Code $9,769,655
(b) JV will use best efforts to make payment as soon as possible on or
after April 1, 1994, but in no event later than April 10, 1994.
(c) The redemption shall constitute a final distribution of the assets of
JV and, upon the filing of a notice of dissolution by PBD, a conclusion of the
winding up of its affairs, and termination of JV.
(d) From and after the effective date of the termination of JV, all
software licensed by the parties to JV or otherwise utilized for use by or on
behalf of JV shall be assigned to and
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licenses for use by PBD, its remaining owner, and by PBD's successors in
interest, upon the same terms and conditions as set forth in the software
license agreements covering the software licensed to JV, except that said
licenses shall be and hereby are amended to be perpetual and irrevocable, and
any language in said agreements which would otherwise prevent the assignments
set forth in this section is of no further force or effect.
2. Effective as of the date of redemption, except for the matters
covered by Section 12 hereof, the parties to this Agreement, on behalf of
themselves, their past and present parent corporations, subsidiaries,
affiliates, divisions, groups, agents, representatives, directors, officers,
employees, attorneys, successors in interest and assigns, (hereinafter
"affiliates"), and each of them, do hereby terminate all rights and obligations
under the JVA and do hereby relieve, release and forever discharge the other
and its affiliates, to and from any and all claims, rights, debts, liabilities,
including fiduciary responsibilities, demands, obligations, promises, acts,
agreements, costs, expenses (including, without limitation, attorney's fees),
damages, actions and causes of action of whatever kind or nature, whether now
known or unknown, including liabilities of every kind or nature whatsoever
which the parties and all related persons and/or entities have or have had or
claim to have had, or hereafter in the future may have or claim to have
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or assert against the other, which arise out of or are in any manner
whatsoever directly or indirectly connected with or related to the JVA or JV
described above.
3. The parties accept the above-described consideration in full accord and
satisfaction for the matters released herein.
4. Effective as of the date of redemption, except for the matters covered
by section 12 hereof, each party, for itself and its affiliates, agrees that it
shall forever refrain and forbear from commencing, instituting or participating
in, either as a named or unnamed party, any lawsuit, action or other proceeding
against the other and/or the affiliates of the other, whether brought by one of
the parties to this Agreement or any person, party or entity on behalf of any
of the parties to this Agreement, based on or arising out of any of the claims,
events, transactions or matters related to the JVA or JV, and, except for the
matters covered by Section 12 hereof, each party, for itself and its
affiliates, hereby waives any rights it might have at law or in equity to
obtain an accounting or a court-supervised winding up, to maintain an action in
partition of property, or to otherwise interfere in any way with the process of
winding up and termination contemplated by this Agreement.
5. The parties acknowledge that, as to the claims, events, transactions or
matters mentioned or referenced herein, no representation or promise not
expressly contained in this
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Agreement has been made to any party or to its affiliates, and further
acknowledge that no party or affiliate is entering into this Agreement on the
basis of any other promise or representation, express or implied.
6. The parties, for themselves and for their affiliates, agree and
mutually represent that, effective as of the date of the redemption, as to
the matters mentioned or referenced herein, except for the matters covered by
Section 12 hereof, this Agreement is intended to be a general release of all
claims by each party and/or its affiliates against each party and/or its
affiliates, and, effective as of the date of redemption, each party, for itself
and its affiliates, waives, to the fullest extent possible, all rights each may
have under Section 1542 of the California Civil Code, which states as follows:
"A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor."
7. The parties acknowledge that this Agreement may affect the settlement of
claims that are denied and contested, and that nothing contained herein may or
shall be construed as an admission against any party.
8. Each of the parties hereby respectively acknowledges that said party
has been represented by and has relied upon counsel of said party's own choice
throughout all of the
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negotiations which preceded the execution of this Agreement, and that said
party has read this Agreement, has had its contents fully explained by such
counsel, and is fully aware of and understands all of its terms and the tax and
legal consequences thereof. Each of the parties hereby acknowledges that the
other party, and any agent or attorney of the other party, has not made any
promise, representation or warranty whatsoever, express or implied, to induce
said party to execute this Agreement, and acknowledges that said party has not
authorized the execution of this Agreement in reliance on any such promise,
representation or warranty not contained herein.
9. Each party agrees to use its best efforts to obtain all governmental
and regulatory approvals necessary or helpful to effectuate this Agreement
according to its terms.
10. This Agreement shall be construed in accordance with the domestic laws
of the State of California.
11. a. Before resorting to litigation, the parties will attempt in good
faith to resolve any controversy or claim arising out of or relating to this
Agreement promptly by negotiations between executives of the parties before
resorting to litigation.
b. If a controversy or claim should arise, William Shaw on behalf of
VIS and Richard K. Van Allen on behalf of PBD, and on behalf of the JV or its
successor in interest, or their respective successors in the positions they now
hold with Volt
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and Directory, respectively, (herein called the "senior executives") will meet
in California at least once, and will attempt to resolve the matter. Either
senior executive may request the other to meet within 14 days, at a mutually
agreed time and place.
c. If the matter has not been resolved within 30 days of the
meeting of the senior executives (which period may be extended by mutual
agreement), the parties will attempt in good faith to resolve the controversy
or claim in accordance with the Center for Public Resources Model Procedure for
Mediation of Business Disputes.
d. If the matter has not been resolved pursuant to the
aforesaid mediation procedure within 60 days of the commencement of such
procedure (which period may be extended by mutual agreement), either party may
initiate litigation upon 10 days written notice to the other party, or the
parties may agree to settle the controversy by arbitration in accordance with
the Center for Public Resources Rules for Non-Administered Arbitration of
Business Disputes. The arbitration shall be conducted by three arbitrators, of
whom each party shall appoint one. The appointed arbitrators shall jointly
select the third (neutral) arbitrator. If they fail to agree on the third
arbitrator, either party may ask the Presiding Judge of the Superior Court in
San Francisco to select the third arbitrator.
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The arbitration shall be governed in accordance with California law. The
arbitration shall be held in San Francisco, California, and shall be conducted
on a confidential basis. The arbitrators' award shall be supported by law and
substantial evidence, and judgement upon the award rendered by the arbitrators
may be entered by any court having jurisdiction thereof.
12. The provisions of Sections 8A and 12 of the JVA shall be deemed
repeated herein as if fully set forth and shall survive the termination of the
JV and shall remain binding on VIS and its successors in interest for the
period of time necessary to resolve with any taxing authority (federal, state,
local and foreign) any and all matters regarding the taxation of JV.
Each party signing this Agreement represents and warrants to each of
the other parties signing this agreement that, except as stated in JV books
as of the date of redemption, (a) the party has not incurred any obligation or
liability on behalf of or as apparent agent of JV or the other parties, or for
which the party or any other parties may be charged, or for which the party
intends to claim refund or reimbursement from JV, and (b) the party has not
received, discharged, or transferred any credit, money, property, or other
assets of JV. Each party further represents and warrants to each other party
that it has not done or failed to do anything to incur any obligation or
liability owing by JV other than obligations and liabilities
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incurred pursuant to actions authorized by the terms and conditions of the JVA.
Notwithstanding any other provision of this Agreement, VIS and its
successors in interest shall remain liable for one-half of any tax deficiency
that may now exist or may hereafter arise out of JV activities through February
28, 1994 which is not shown as accrued or as to which no reserve has been
created on the books of the JV at that date. For this purpose, the term "tax"
includes, but is not limited to, federal and state income, property, sales, and
excise taxes. The term "deficiency" includes taxes, interest, and penalties.
The term "PacVis activities" includes formation, operation, and dissolution of
the JV.
Notwithstanding any other provision of this Agreement, the lease
between Landlord and Volt Fletcher Building Corp. as landlords (the last
mentioned corporation having since been merged with Landlord) and JV as tenant,
dated as of December 12, 1986 as amended by a lease amendment dated September
10, 1987, (collectively, "lease"), shall remain in full force and effect, and,
effective April 1, 1994, the tenant's interest under the lease is hereby
assigned by JV to PBD, as successor in interest to JV. PBD accepts such
assignment and shall be tenant under the lease from and after April 1, 1994.
Landlord consents to such assignment and agrees to recognize PBD as tenant
under the lease.
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Notwithstanding any other provision of this Agreement, liabilities of
JV to third parties existing as of the date of redemption, except for the tax
liabilities mentioned above in this section, and except for any liabilities
resulting from any breach by VIS or Volt of any warranty or representation set
forth in this section, shall be assumed by PBD, as successor in interest of JV,
and PBD shall indemnify and hold harmless VIS from and against such assumed
liabilities.
Notwithstanding any other provision of this Agreement, from and
after the date of redemption and filing of notice of dissolution, JV shall be
deemed dissolved and PBD, as successor in interest of JV, shall be sole owner
of the business and its assets with the unencumbered right to operate the
business for its own benefit. From and after March 1, 1994, PBD shall be
entitled to all profits and distributions from JV. PBD may continue to use the
names Pacific Volt Information Systems and PacVis in connection with the
operations of the business, up to and including December 31, 1996. Each party
to this Agreement and its successors in interest shall cooperate fully with
each of the other parties to this Agreement and their respective successors in
interest so as to allow PBD and its successors in interest to continue to
operate the business, provided, however, that the party seeking such
cooperation shall reimburse the party
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providing such cooperation for its reasonable expenses attributable to the
provision of such cooperation.
13. Each party to this Agreement hereby agrees to execute and deliver
such instruments and take such other actions as any of the other parties to
this Agreement may reasonably require in order to carry out the intent of the
Agreement and the transactions contemplated hereby.
14. Each person signing this Agreement on behalf of each party to this
Agreement warrants that he or she is authorized to sign this Agreement for and
on behalf of the party represented by the signature of such person, and that no
further approvals by or on behalf of such party are required to make this
Agreement effective and binding on such party.
15. All notices or other communications hereunder between the parties to
this Agreement or any of them shall be deemed to have been duly given when made
in writing and delivered in person, addressed as set forth below, to the party
to which a notice or communication is addressed or when deposited in the United
States mail, postage prepaid, certified mail, return receipt requested, and
addressed to the party intended by the sender to receive the notice or
communication at the address set forth below for each recipient intended to
receive such notice:
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VIS, Inc. PACIFIC VOLT INFORMATION SYSTEMS
1133 Avenue of the Americas c/o Pacific Bell Directory
19th Floor 101 Spear Street, Suite 202
New York, NY 10036 San Francisco, CA 94105
Attention: William Shaw Attention: Richard K. Van Allen
VOLT INFORMATION SCIENCES, INC. PACIFIC BELL DIRECTORY
1133 Avenue of the Americas 101 Spear Street, Suite 202
19th Floor San Francisco, CA 94105
New York, NY 10036
Attention: William Shaw Attention: Richard K. Van Allen
VOLT ORANGECA REAL ESTATE CORP. PBD HOLDINGS
1133 Avenue of the Americas 101 Spear Street, Suite 202
19th Floor San Francisco, CA 94105
New York, NY 10036
Attention: William Shaw Attention: Richard K. Van Allen
The address to which notices or communications may be given to any party may be
changed by written notice given by such party to the other parties pursuant to
this section.
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IN WITNESS WHEREOF, this Agreement is entered into, made effective and
executed by the parties hereto as of April 1, 1994.
VIS, INC. PACIFIC VOLT INFORMATION SYSTEMS
By: /s/ William Shaw By: /s/ R.K. Van Allen
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Title: PRESIDENT Title: MANAGEMENT COMMITTEE MEMBER
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By: /s/ William Shaw
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Title: MANAGEMENT COMMITTEE MEMBER
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VOLT INFORMATION SCIENCES, INC. PACIFIC BELL DIRECTORY
By: /s/ William Shaw By: /s/ R.K. Van Allen
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Title: PRESIDENT Title: PRESIDENT & CEO
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VOLT ORANGECA REAL ESTATE CORP. PBD HOLDINGS
By: /s/ William Shaw By: /s/ R.K. Van Allen
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Title: PRESIDENT Title: PRESIDENT & CEO
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