Exhibit 10.1
ASSET PURCHASE AGREEMENT
by and among
JUDGE IMAGING SYSTEMS, INC.,
AUTOMATED OFFICE PRODUCTS OF WESTERN NEW YORK, INC.
d/b/a AOP SOLUTIONS,
▇▇▇▇ ▇. ▇▇▇▇▇▇
and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
SECTION 1. ACQUISITION OF ASSETS
1.1 Sale and Purchase of Assets
1.2 Excluded Assets
1.3 Assumption of Liabilities
1.4 Consents
SECTION 2. PURCHASE AND SALE
2.1 Purchase Price
2.2 Allocation of Consideration
2.3 Closing Costs
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SELLER
3.1 Organization and Good Standing
3.2 Power and Authorization
3.3 No Conflicts
3.4 Brokers
3.5 Title; Liens
SECTION 4. REPRESENTATIONS AND WARRANTIES OF BUYER
4.1 Organization and Good Standing
4.2 Power and Authorization
4.3 No Conflicts
4.4 Brokers
4.5 Financial Condition
SECTION 5. CLOSING; CERTAIN COVENANTS
5.1 Closing and Effectiveness
5.2 Deliveries at the Closing
5.3 Use of Name
5.4 Remittance of Payments
5.5 Affiliate Payments
SECTION 6. EMPLOYEE BENEFITS AND EMPLOYMENT
6.1 Employment
6.2 Employee Pension Benefit Plans
6.3 Employee Welfare Benefit Plans
6.4 Health Continuation Coverage
6.5 Health Insurance Portability and Accountability Act ("HIPAA")
6.6 Reporting and Disclosure Requirements
6.7 Employee Records
SECTION 7. INDEMNIFICATION
7.1 Indemnification by Seller
7.2 Indemnification by Buyer
7.3 Inter-Party Claims
7.4 Third Party Claims
7.5 Limitations and Requirements
SECTION 8. MISCELLANEOUS
8.1 Survival of Representations and Warranties
8.2 Further Assurances
8.3 Costs and Expenses
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8.4 Acknowledgment of Warranty Disclaimer
8.5 Acknowledgment of Warranty Disclaimer
8.6 Public Announcements
8.7 Notices
8.8 Assignment and Benefit
8.9 Amendment, Modification and Waiver
8.10 Governing Law; Consent to Jurisdiction
8.11 Section Headings and Defined Terms
8.12 Invalidity/Severability
8.13 Counterparts
8.14 Entire Agreement
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is dated as of May 31,
1999, (the "Effective Date") by and among Judge Imaging Systems, Inc., a
Pennsylvania corporation ("Seller"), Automated Office Products of Western New
York, Inc. d/b/a AOP Solutions, a New York corporation ("Buyer"), ▇▇▇▇ ▇. ▇▇▇▇▇▇
("▇. ▇▇▇▇▇▇") and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ("▇. ▇▇▇▇▇▇"). An index of defined terms is
attached as an appendix hereto. Buyer, Seller, ▇. ▇▇▇▇▇▇ and ▇. ▇▇▇▇▇▇ are
collectively referred to herein as the "Parties".
BACKGROUND
The Parties desire to provide for, among other things, the acquisition
by Buyer from Seller and the sale by Seller to Buyer of the Assets (as defined
below) relating to the document solutions and information management business
(the "Business") which Seller purchased from Buyer pursuant to an Asset Purchase
Agreement dated as of June 29, 1998, as amended by an Amendment and Settlement
Agreement dated as of August 3, 1998 (the "First Agreement"), upon the terms and
subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual representations, warranties, covenants and agreements herein contained,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be legally
bound, hereby agree as follows:
ACQUISITION OF ASSETS
Sale and Purchase of Assets. Upon the terms and subject to the
conditions of this Agreement, at the Closing (as hereinafter defined), Seller
shall sell, transfer and deliver to Buyer the Assets (as defined below) and
Buyer shall purchase the Assets from Seller for the consideration set forth in
Section 2 hereof. As used herein the term "Assets" shall mean the following
assets of the Business as of the Effective Date:
All accounts receivable, including, without limitation, all
receivables identified on Schedule 1.1(a);
All supplies, machinery, furniture, equipment and other
personal property;
All inventions, whether or not patented, know-how, domestic
and foreign letters patents, patent applications, patent licenses, software
licenses and know-how licenses (including but not limited to the names "AOP",
"AOP Solutions" and "Always Offering Profitable Solutions"), trade secrets
(including but not limited to all results of research and development), trade
names, trademarks, service-marks, copyrights, trademark registrations and
applications, service ▇▇▇▇ registrations and applications, copyright
registrations and applications and rights-to-use (collectively "Intellectual
Property") which were part of the "Purchased Assets" under the First Agreement;
To the extent assignable, all right, title and interest in, to
and under all purchase orders, sales agreements, equipment leases, distribution
agreements, licensing agreements and other contracts, agreements and commitments
("Contracts") of the Business;
Copies of all books and records predominately relating to the
Business and the Assets (including such books and records as are contained in
computerized storage media), including all inventory, purchasing, accounting,
sales, export, import, manufacturing, marketing, banking and shipping records
and all files, contractor, consultant, customer/client and supplier lists,
records, literature and correspondence, and marketing materials excluding tax
returns;
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The lease (the "Lease") related to the facility at ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Facility");
Any other assets of the Business which are of a nature not customarily
reflected in the books and records of a business, such as assets which have been
written off for accounting purposes but which are still used by or of value to
the Business;
To the extent assignable, all permits, licenses and authorizations
("Authorizations") associated with the Business and its operations;
All intangible assets and goodwill associated with the Business and
its operations;
All pre-paid expenses; All notes receivable;
All deposits in the hands of third parties; and
Any other assets of Seller which are located at the Facility.
Excluded Assets. The Assets being sold, assigned, and transferred to
Buyer hereunder do not include:
Cash and cash equivalents;
Any assets or rights used both for the Business and other
operations of Seller, which were not part of the "Purchased Assets" under the
First Agreement; or
Any name or ▇▇▇▇ which includes "Judge";
Any rights, claims or counterclaims under this Agreement, the
Transaction Documents or the First Agreement and Transaction Documents, as
defined therein; or
Any other assets not specifically referred to in Section 1.1 above
(collectively, the "Excluded Assets").
Assumption of Liabilities. Buyer will assume, as of the Closing (as
defined herein), and thereafter fully perform, pay and satisfy, all debts,
liabilities (including contingent liabilities), claims, obligations, and
commitments, known and unknown ("Liabilities"), of Seller relating to the
Business (the "Assumed Liabilities"), including, but not limited to, the
following:
all Liabilities of Seller under the Contracts;
all accounts payable of Seller relating to or arising out of the
operation of the Business (except as provided in Section 1.4);
vacation, severance and similar employment liabilities (except as
provided in Section 6);
unearned revenues and customer deposits; and
all liabilities reflected in the balance sheet of the Business as
of April 30, 1999, attached hereto as Schedule 1.3(e) (the May 31, 1999 balance
sheet of the Business not being available as of the date hereof).
Consents. Notwithstanding anything in this Agreement to the contrary,
if any Contract or Authorization included in the Assets may not be transferred
without the consent, approval or waiver ("Consent") of a third party (including,
without limitation, any governmental authority) and such transfer or attempted
transfer would constitute a breach thereof or a violation of any law, nothing in
this Agreement or any Transaction Document shall constitute a transfer or
attempted transfer thereof. Buyer will use its best efforts to obtain each such
Consent before or as soon as possible after the Closing Date, but to the extent
not obtained, Seller and Buyer shall cooperate (a) in endeavoring to obtain such
Consent promptly, and (b) if any such Consent is unobtainable, in any reasonable
arrangement so that Buyer has all of the benefits and assumes all of the
liabilities and obligations under any such Contract or Authorization as if such
Contract and Authorization had been duly assigned to Buyer.
PURCHASE AND SALE
Purchase Price. In full consideration for the sale by Seller to Buyer
of the Assets pursuant to Section 1.1 hereof, and the other agreements by Seller
and Buyer herein, Buyer shall release all claims against Seller and The Judge
Group, Inc., a Pennsylvania corporation (the "Parent"), pursuant to a
Settlement, Release and Termination Agreement executed by the parties on the
date hereof (the "Mutual Release").
Allocation of Consideration. The consideration for the Assets shall be
allocated to the Seller and among the Assets as specified on Schedule 2.2
hereto. Within 90 days following the Closing, Buyer shall prepare and submit to
Seller Internal Revenue Form 8594 (relating to purchase price allocation),
prepared in accordance with such allocation. Seller and Buyer shall prepare
their respective federal, state and local tax returns and reports employing the
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allocation made pursuant to this Section and shall not take a position in any
tax proceeding or audit or otherwise that is inconsistent with such allocation;
provided, that nothing contained herein shall require Seller or Buyer to
contest, beyond the exhaustion of its administrative remedies before any taxing
authority or agency, and Seller and Buyer shall not be required to litigate
before any court, including, without limitation, the United States Tax Court,
any proposed deficiency or adjustment by any taxing authority or agency that
challenges such allocation. Seller and Buyer shall give prompt notice to each
other promptly upon becoming aware of the commencement or threat of any tax
audit or the threatened assertion of any proposed deficiency or adjustment by
any tax authority or agency that challenges such allocation.
Closing Costs. Buyer shall be responsible for the payment of (a) all
documentary, use, filing, sales and other taxes and fees due or payable as a
result of the transfer and delivery of the Assets from Seller to Buyer, and (b)
all of its attorney, consultant, accounting and other fees and any and all other
expenses contemplated to be paid by Buyer under this Agreement and the other
agreements, documents and instruments related hereto (this Agreement and such
related agreements, documents and instruments, collectively, the "Transaction
Documents") or incurred by Buyer in connection with the First Agreement or
various claims and discussions relating thereto.
REPRESENTATIONS AND WARRANTIES OF SELLER.
Seller hereby represents and warrants to Buyer as of the date of this
Agreement and as of the Closing Date as follows (except, in each case, to the
extent Buyer has knowledge or belief that any such representation and/or
warranty is incorrect as a result of Buyer's due diligence, or Buyer's
familiarity with the Business or otherwise):
Organization and Good Standing. Seller is a corporation duly organized,
validly existing and in good standing under the laws of the Commonwealth of
Pennsylvania, and has all necessary power and authority to carry on its business
as presently conducted, to own and lease the assets which it owns and leases and
to perform all its obligations under each agreement and instrument by which it
is bound.
Power and Authorization. Seller has the corporate power and authority
to enter into and perform its obligations under this Agreement and under the
other agreements and documents required to be delivered by Seller prior to or at
the Closing in connection herewith (such agreements and documents, collectively,
the "Seller Transaction Documents"). The execution, delivery and performance by
Seller of this Agreement and the Seller Transaction Documents have been duly
authorized by all necessary corporate action. This Agreement has been duly and
validly executed and delivered by Seller and constitutes a legal, valid and
binding obligation of Seller, enforceable against Seller in accordance with the
terms hereof. When executed and delivered as contemplated herein, each of the
Seller Transaction Documents shall constitute the legal, valid and binding
obligation of Seller, enforceable against Seller in accordance with the terms
thereof.
No Conflicts.
The execution, delivery and performance of this Agreement and the
Seller Transaction Documents do not and will not (with or without the passage of
time or the giving of notice):
violate or conflict with Seller's certificate or articles of
formation or organization or partnership agreement, any statute, law,
regulation, permit, license, or certificate, or any judgment, order, award or
other decision or requirement of any arbitrator, court, government or
governmental agency or instrumentality (domestic or foreign) binding upon Seller
or Seller's properties or assets (such statutes, laws, regulations, permits,
licenses, certificates, judgments, orders, awards and other decisions or
requirements, collectively, "Laws"); or
violate or conflict with, result in a breach of, or constitute a
default or otherwise cause any loss of benefit under, any material agreement or
other material obligation to which Seller is a party.
No consents or approvals of, or registrations, notifications, filings
and/or declarations with, any court, government or governmental agency or
instrumentality, creditor, lessor or other person or entity ("Consent or
Approval") are required to be given or made by Seller in connection with the
execution, delivery and performance of this Agreement and the other agreements,
documents and instruments contemplated herein, other than such as have been
obtained or made and are in full force and effect.
There are no actions, proceedings or investigations ("Actions") pending
or, to the knowledge of Seller, threatened, that question any of the
transactions contemplated by, or the validity of, this Agreement or any of the
other Transaction Documents or which, if adversely determined, could reasonably
be expected to have an adverse affect upon the ability of Seller or Buyer to
enter into or perform its respective obligations under this Agreement or any of
the other Transaction Documents. Seller has not, on behalf of itself or Buyer,
received any request from any governmental agency or instrumentality for
information with respect to the transactions contemplated hereby.
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Notwithstanding anything in this Section to the contrary, Seller
makes no representation or warranty as to any law, agreement, obligation,
Consent or Approval or Action which relates to the Business and not Seller as a
whole.
Brokers. No person acting on behalf of Seller or any of Seller's
affiliates or under the authority of any of the foregoing, is or will be
entitled to any brokers' or finders' fee or any other commission or similar fee,
directly or indirectly, from any of the parties in connection with any of the
transactions contemplated by this Agreement.
Title; Liens. Seller has such title to the Assets which it received
from Buyer at the Closing under the First Agreement (the "First Closing"), free
and clear of all liens, pledges, charges, claims, encumbrances, proscriptions,
restrictions, conditions, covenants, and easements of any kind ("Liens") which
relate to any business or operations of Seller or Parent other than the Business
being sold hereunder.
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller as of the date of this
Agreement and as of the Closing Date as follows (except, in each case, to the
extent Seller has knowledge or belief that any such representation and/or
warranty is incorrect as a result of Seller's due diligence, or Seller's
familiarity with the Business or otherwise):
Organization and Good Standing. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of New York,
and has all necessary power and authority to carry on its business as presently
conducted, to own and lease the assets which it owns and leases and to perform
all its obligations under each agreement and instrument by which it is bound.
Power and Authorization. Buyer has the corporate power and authority to
enter into and perform its obligations under this Agreement and under the other
agreements, documents and instruments (collectively, the "Buyer Transaction
Documents") required to be delivered by it prior to or at the Closing. The
execution, delivery and performance by Buyer of this Agreement and the Buyer
Transaction Documents have been duly authorized by all necessary corporate
action. This Agreement has been duly and validly executed and delivered by Buyer
and constitutes the legal, valid and binding obligation of Buyer, enforceable
against Buyer in accordance with the terms hereof. When executed and delivered
as contemplated herein, each of the Buyer Transaction Documents shall constitute
the legal, valid and binding obligation of Buyer, enforceable in accordance with
the terms thereof.
No Conflicts.
The execution, delivery and performance of this Agreement and the Buyer
Transaction Documents do not and will not (with or without the passage of time
or the giving of notice):
violate or conflict with Buyer's certificate or articles of
formation or organization or partnership agreement or any Laws; or
violate or conflict with, result in a breach of, or constitute a
default or otherwise cause any loss of benefit under, any material agreement or
other material obligation to which Buyer is a party.
No Consent or Approval is required to be given or made by Buyer in
connection with the execution, delivery and performance of this Agreement and
the other agreements, documents and instruments contemplated herein, other than
such as have been obtained or made and are in full force and effect.
There are no actions, proceedings or investigations pending or, to the
knowledge of Buyer, threatened, that question any of the transactions
contemplated by, or the validity of, this Agreement or any of the other
Transaction Documents or which, if adversely determined, could reasonably be
expected to have an adverse affect upon the ability of Buyer or Seller to enter
into or perform its respective obligations under this Agreement or any of the
other Transaction Documents. Buyer has not, on behalf of itself or Seller,
received any request from any governmental agency or instrumentality for
information with respect to the transactions contemplated hereby.
Brokers. No person acting on behalf of Buyer or any of its affiliates
or under the authority of any of the foregoing is or will be entitled to any
brokers' or finders' fee or any other commission or similar fee, directly or
indirectly, from any of the parties in connection with any of the transactions
contemplated by this Agreement.
Financial Condition. Immediately after Closing, Buyer's Assets and
Liabilities will consist solely of the Assets purchased and the Assumed
Liabilities assumed under this Agreement.
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CLOSING; CERTAIN COVENANTS.
Closing and Effectiveness. The closing of the purchase and sale of the
Assets and the assignment and assumption of the Assumed Liabilities (the
"Closing") pursuant to this Agreement shall be effective as of the close of
business on May 31, 1999.
Deliveries at the Closing. At the Closing, in addition to the other
actions contemplated elsewhere herein:
Seller shall deliver, or shall cause to be delivered, to Buyer the
following:
a ▇▇▇▇ of Sale, Assignment and Assumption and the Mutual Release,
in form satisfactory to Buyer;
a closing certificate and secretary's certificate, dated the
Closing Date and signed by the Chief Executive Officer or President of Seller,
satisfactory to Buyer;
copies of the resolutions of the board of directors of Seller
authorizing the execution, delivery and performance of this Agreement and the
other Transaction Documents, certified as of the Closing by the Secretary of
Seller;
such other documents and instruments as Buyer may reasonably
request to effectuate or evidence the transactions contemplated by this
Agreement.
Buyer shall deliver, or shall cause to be delivered, to Seller the
items described below:
a ▇▇▇▇ of Sale, Assignment and Assumption and a Mutual Release,
executed by Buyer, ▇. ▇▇▇▇▇▇ and ▇. ▇▇▇▇▇▇, all in form satisfactory to Seller;
a closing certificate and secretary's certificate, dated the
Closing Date signed by the President or a Vice President of the general partner
of Buyer, satisfactory to Seller;
a copy of the resolutions of the board of directors or
corresponding governing body of Buyer authorizing the execution, delivery and
performance by Buyer of this Agreement and the other Transaction Documents,
certified as of the Closing by the Secretary of Buyer;
such other documents and instruments as Seller may reasonably
request to effectuate or evidence the transactions contemplated by this
Agreement.
Use of Name. From and after the Closing, Buyer shall not have or use or
permit any affiliate of Buyer to have or use any name or ▇▇▇▇ which includes a
reference to Judge Group or Seller, and no such name or ▇▇▇▇ or rights thereto
shall be included in the Assets; provided that, Buyer shall be permitted to use
the Judge name on Buyer's Internet web site and on an awning at the Facility for
a period of thirty (30) days after the Closing Date. On request, Buyer shall
deliver to Seller evidence (which shall be satisfactory to Seller) of compliance
with this Section. Buyer acknowledges that breach of this section will give rise
to irreparable injury to Seller and Parent and that as a result money damages
are inadequate. Accordingly, Buyer irrevocably acknowledges and agrees that
Seller and Parent may each seek and obtain injunctive relief and other equitable
remedies with respect to any breach or threatened breach of this section, in
addition to any other remedies which may be available at law. In the event of
any alleged breach of this section, Buyer will be responsible for the legal fees
and costs incurred by Seller and Parent. In the event any such allegation is
made incorrectly, as adjudicated by a court or arbitrator, Seller and Parent
will be responsible for the legal fees and costs incurred by Buyer.
Remittance of Payments. From and after the Effective Date, Seller shall
immediately remit to Buyer, in the form received, any payments that it or any
affiliate may receive (such as payments of accounts receivable) which properly
belong to Buyer, and Buyer shall immediately remit to Seller, in the form
received, any payments that Buyer or any affiliate may receive which properly
belong to Seller. In particular, Seller shall immediately remit to Buyer any
cash remitted by a customer on or after the Effective Date that is attributable
to a receivable, which was part of the Assets purchased hereunder. Neither Party
may set off against any amount due under this section any amount owed to or
allegedly owed to such Party.
Affiliate Payments. From and after the closing, subject to applicable
law (including fraudulent conveyance law and law related to dividends and
distributions) that may restrict payments, until all of the obligations of Buyer
hereunder and all of the Assumed Liabilities which constitute trade accounts
payable have been paid and satisfied in full, Buyer will not make any
distribution, dividend or other similar payment, make any loan to or investment
in any Affiliate or make any payment to or transfer any asset or right to any
Affiliate, except for reasonable salary for services rendered and distributions
necessary for Buyer's shareholders to pay income taxes arising because of
Buyer's status as an S corporation under the Internal Revenue Code of 1986, as
amended (the "Code"). For purposes hereof, "Affiliate" shall mean any direct or
indirect equity holder of Buyer, any director, officer or employee of Buyer or
of any such equity holder, any spouse or relative of any of the foregoing which
is a natural person and any business entity of which any of the foregoing is a
director.
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EMPLOYEE BENEFITS AND EMPLOYMENT.
Employment.
Buyer will determine which employees of the Business to whom it will
offer employment and identify such employees by name to Seller not later than
June 20, 1999. Employees who accept such employment shall be referred to as
"Transferred Employees" for purposes of this Agreement. Seller shall be
responsible for any severance pay obligations with respect to those individuals
employed in the Business who are not Transferred Employees and whose employment
with Seller is terminated. Seller shall also notify such individuals about the
termination of their employment and such notification may inform those
individuals not identified by Buyer as among those to whom Buyer will offer
employment that Buyer has decided not to offer employment to them. Anything
contained in or implied by the provisions of this Section 6.1 to the contrary
notwithstanding, the provisions of this Section shall not create any third-party
beneficiary rights in any person, including any Transferred Employee.
Employee Pension Benefit Plans. The benefits under any Employee Pension
Benefit Plan (as defined in Section 3(2) of ERISA) maintained by Seller which
have accrued to any Transferred Employee as of the Closing Date shall be frozen
as of a date not later than 15 days after the Closing Date and no further
benefits shall accrue under any such Employee Pension Benefit Plan with respect
to such Transferred Employee. Buyer assumes no responsibility with respect to
any such Employee Pension Benefit Plan.
Employee Welfare Benefit Plans. Buyer shall be responsible for
establishing such Employee Welfare Benefit Plans (as defined in Section 3(1) of
ERISA) for Transferred Employees as it determines to be appropriate. Buyer shall
have no responsibility for any Employee Welfare Benefit Plan of Seller. Subject
to Section 1.3 hereof, Seller shall remain responsible and liable for any acts
or omissions by Seller with respect to such Employee Welfare Benefit Plans
occurring prior to the Closing Date.
Health Continuation Coverage. Buyer shall be responsible for all health
continuation coverage requirements of the Code, and ERISA for all Transferred
Employees and their beneficiaries in periods on and subsequent to the Closing
Date. Seller shall be responsible for notifying employees who are not
Transferred Employees (and the beneficiaries of such employees) of their right
to continue their health care coverage under Seller's health care plan at their
own cost pursuant to the relevant provisions of Federal Law.
Health Insurance Portability and Accountability Act ("HIPAA"). Buyer
shall be responsible for all health insurance obligations imposed by HIPAA with
respect to any Employee Welfare Benefit Plan which is a group health plan (as
defined under Section 5000(b)(1) of the Code or Part 6 of Subtitle B of Title I
of ERISA) for all periods on and subsequent to the Closing Date.
Reporting and Disclosure Requirements. Seller shall be responsible for
filing all annual reports and satisfying all other reporting and disclosure
requirements with respect to any Employee Benefit Plan for all Plan Years ending
prior to the Closing Date.
Employee Records Buyer shall grant Seller full access to all employee
records relating to the Transferred Employees to the extent necessary to enable
Seller to comply with its obligations hereunder.
INDEMNIFICATION
Indemnification by Seller. Subject to Sections 7.5 and 8.4, Seller
shall indemnify and hold Buyer and its officers, directors and shareholders
harmless against and in respect of any and all losses, costs, expenses, claims,
damages, obligations and liabilities, including interest, penalties and
reasonable attorneys' fees and disbursements, but not including any
consequential damages (such losses, costs, expenses, claims, damages,
obligations and liabilities, including interest, penalties and reasonable
attorney's fees and disbursements, but not including any consequential damages,
collectively, "Damages"), which Buyer or any such person may suffer, incur or
become subject to arising out of, based upon or otherwise in respect of (in each
case except to the extent relating to a breach of representation or covenant of
Buyer under the First Agreement or any related document):
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any inaccuracy in or breach of any representation or warranty of
Seller made in or pursuant to this Agreement or any Transaction Document; and
any breach or nonfulfillment of any covenant or obligation of
Seller contained in this Agreement or any Transaction Document.
Indemnification by Buyer. Buyer shall indemnify, defend and hold Seller
and its affiliates and their officers, directors and shareholders harmless
against and in respect of any and all Damages which Seller or any such entity or
person may suffer, incur or become subject to arising out of, based upon or
otherwise in respect of:
any inaccuracy in or breach of any representation or warranty of
Buyer made in or pursuant to this Agreement or any Transaction Document;
any breach or nonfulfillment of any covenant or obligation of Buyer
contained in this Agreement or any Transaction Document; and
the Assumed Liabilities.
Inter-Party Claims. Any party seeking indemnification pursuant to this
Section (the "Indemnified Party") shall notify in writing the other party or
parties from whom such indemnification is sought (the "Indemnifying Party") of
the Indemnified Party's assertion of such claim for indemnification, specifying
the basis of such claim, including all relevant facts and circumstances and the
section(s) of this Agreement under which such claim arises. The Indemnified
Party shall thereupon give the Indemnifying Party reasonable access to the
books, records and assets of the Indemnified Party which evidence or support
such claim or the act, omission or occurrence giving rise to such claim and the
right, upon prior notice during normal business hours, to interview any
appropriate personnel of the Indemnified Party related thereto.
Third Party Claims.
Each Indemnified Party shall promptly notify in writing the
Indemnifying Party of the assertion by any third party of any claim with respect
to which the indemnification set forth in this Section relates (which shall also
constitute the notice required by Section 7.3), specifying the basis of such
claim including all relevant facts and circumstances and the section(s) of this
Agreement under which such claim arises. The Indemnifying Party shall have the
right, upon notice to the Indemnified Party within sixty (60) business days
after the receipt of any such notice, to undertake the defense of or, with the
consent of the Indemnified Party (which consent shall not unreasonably be
withheld), to settle or compromise such claim. The failure of the Indemnifying
Party to give such notice and to undertake the defense of or to settle or
compromise such a claim shall constitute a waiver of the Indemnifying Party's
rights under this Section 7.4(a) and in the absence of gross negligence or
willful misconduct on the part of the Indemnified Party shall preclude the
Indemnifying Party from disputing the manner in which the Indemnified Party may
conduct the defense of such claim or the reasonableness of any amount paid by
the Indemnified Party in satisfaction of such claim.
The election by the Indemnifying Party, pursuant to Section 7.4(a), to
undertake the defense of a third-party claim shall not preclude the party
against which such claim has been made also from participating or continuing to
participate in such defense, so long as such party bears its own legal fees and
expenses for so doing.
1.1 Limitations and Requirements.
Seller shall have no obligation to indemnify Buyer or any other person
against Damages pursuant to Section 7.1 of this Agreement unless and until the
aggregate of all such Damages suffered or incurred by Buyer and such persons
exceeds $20,000; in which event Buyer and such persons shall be entitled to
indemnification for all Damages in excess of such amount.
Except as may otherwise expressly be provided in this Agreement, no
claim arising out of or based upon any inaccuracy in or breach of any
representation or warranty contained in this Agreement or any Transaction
Document shall be made unless facts exist giving rise to a claim, and written
notice pursuant to Section 7.3 is delivered to the Indemnifying Party, within
the applicable statute of limitations period.
The indemnification obligations of Seller contained herein are intended
to be exclusive and preclude all other claims, rights or remedies against Seller
which may exist at law (whether statutory or otherwise) or in equity with
respect to the matters covered by such indemnification obligations.
27
MISCELLANEOUS
Survival of Representations and Warranties. Subject to Section 7.5(b)
above, the representations and warranties made by the parties in this Agreement
and in the certificates, documents and schedules delivered pursuant hereto shall
survive the consummation of the transactions herein contemplated.
Further Assurances. Each party hereto shall use commercially reasonable
efforts to comply with all requirements imposed hereby on such party and to
cause the transactions contemplated hereby to be consummated as contemplated
hereby and shall, from time to time and without further consideration, either
before or after the Closing, execute such further instruments and take such
other actions as any other party hereto shall reasonably request in order to
fulfill its obligations under this Agreement and to effectuate the purposes of
this Agreement and to provide for the orderly and efficient transition of the
ownership of the Assets to, and the assumption of the Assumed Liabilities by,
Buyer. Buyer and Seller shall, for two years after the Closing, retain the
various books and records relating to the Business and shall, upon prior notice,
provide the other party and its authorized representatives reasonable access
thereto. Each party shall promptly notify the other party of any event or
circumstance known to such party that could prevent or delay the consummation of
the transactions contemplated hereby or which would indicate a breach or
non-compliance with any of the terms, conditions, representations, warranties or
agreements of any of the parties to this Agreement.
Costs and Expenses. Except as otherwise expressly provided herein, each
party shall bear its own expenses in connection herewith.
Acknowledgment of Warranty Disclaimer. Buyer acknowledges and agrees
that
Through the status of ▇. ▇▇▇▇▇▇ and ▇. ▇▇▇▇▇▇ as employees of the
Business, and otherwise, Buyer has had access to the assets, properties (real
and personal, owned and leased), permits, licenses, agreements, instruments,
documents and other contracts (oral and written), and the books and records
related to the Business and has had opportunity to inspect the same;
Buyer has decided to acquire the Assets and assume the Assumed
Liabilities based upon such access and inspection and the representations,
warranties and covenants of Seller specifically made in this Agreement;
accordingly the representations made by Seller in Section 3 hereof are
the sole representations and warranties made by Seller with respect to itself,
its assets and its liabilities and obligations, AND SELLER MAKES NO OTHER
REPRESENTATIONS OR WARRANTIES OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED,
EITHER HEREIN OR OTHERWISE, AS TO THE ASSETS, PROPERTIES (REAL AND PERSONAL,
OWNED AND LEASED), AGREEMENTS, INSTRUMENTS, DOCUMENTS AND OTHER CONTRACTS (ORAL
AND WRITTEN), LIABILITIES AND/OR BUSINESS OF SELLER OR AS TO, THE TRANSACTIONS
CONTEMPLATED HEREBY OR ANY OTHER MATTER PERTAINING TO ANY OF THE FOREGOING;
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SELLER DISCLAIMS ALL
REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, AS TO THE CONDITION OF THE
ASSETS, PROPERTIES (REAL AND PERSONAL, OWNED AND LEASED), AGREEMENTS,
INSTRUMENTS, DOCUMENTS AND OTHER CONTRACTS (ORAL AND WRITTEN ), BUSINESS, AND
BUSINESS PROSPECTS OF SELLER, INCLUDING, WITHOUT LIMITATION, THE WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE; and
in furtherance and not limitation of the foregoing, Seller makes no
representation that Seller has, or that Buyer will have, all the licenses,
permits or other Authorizations or contracts required to carry on the operation
of the Business or that any of such licenses or permits or other Authorizations
or contracts are transferable, and Buyer shall be responsible for all such
matters.
Except as and to the extent set forth in this Agreement and the
certificates and schedules delivered under this Agreement, Seller hereby
disclaims all liability and responsibility for any statement or information made
or communicated in any way to Buyer or any agent, employee or representative
thereof (including, without limitation, any opinion, information or advice
provided by any officer, director, employee, agent, consultant or other
representative of Seller or any affiliate of Seller), and Buyer acknowledges
such disclaimer. No representation or warranty contained in Section 3 shall be
deemed to be untrue to the extent that Buyer had knowledge on the date hereof
that such representation or warranty was not correct as stated herein or, after
the date hereof and on or before the Closing Date, gave prior approval to an act
of the Seller or one of its subsidiaries which caused such representation or
warranty to be incorrect as stated herein.
28
Acknowledgment of Warranty Disclaimer. Seller acknowledges and
agrees that
The representations made by Buyer in Section 4 hereof are the sole
representations and warranties made by Buyer with respect to itself, its assets
and its liabilities and obligations, AND BUYER MAKES NO OTHER REPRESENTATIONS OR
WARRANTIES OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, EITHER HEREIN OR
OTHERWISE, AS TO THE ASSETS, PROPERTIES (REAL AND PERSONAL, OWNED AND LEASED),
AGREEMENTS, INSTRUMENTS, DOCUMENTS AND OTHER CONTRACTS (ORAL AND WRITTEN),
LIABILITIES AND/OR BUSINESS OF BUYER OR AS TO, THE TRANSACTIONS CONTEMPLATED
HEREBY OR ANY OTHER MATTER PERTAINING TO ANY OF THE FOREGOING;
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUYER DISCLAIMS
ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, AS TO THE CONDITION OF
THE ASSETS, PROPERTIES (REAL AND PERSONAL, OWNED AND LEASED), AGREEMENTS,
INSTRUMENTS, DOCUMENTS AND OTHER CONTRACTS (ORAL AND WRITTEN ), BUSINESS, AND
BUSINESS PROSPECTS OF BUYER, INCLUDING, WITHOUT LIMITATION, THE WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE; and
Except as and to the extent set forth in this Agreement and the
certificates and schedules delivered under this Agreement, Buyer hereby
disclaims all liability and responsibility for any statement or information made
or communicated in any way to Seller or any agent, employee or representative
thereof (including, without limitation, any opinion, information or advice
provided by any officer, director, employee, agent, consultant or other
representative of Buyer or any affiliate of Buyer), and Seller acknowledges such
disclaimer. No representation or warranty contained in Section 4 shall be deemed
to be untrue to the extent that Seller had knowledge on the date hereof that
such representation or warranty was not correct as stated herein or, after the
date hereof and on or before the Closing Date, gave prior approval to an act of
the Buyer or one of its subsidiaries which caused such representation or
warranty to be incorrect as stated herein.
Public Announcements. Prior to the Closing, neither Seller nor
Buyer shall make any public announcement or disclosure relating to the
transactions contemplated herein without the prior agreement of the other party
hereto, provided that each party shall use its best efforts to consult with the
other in advance of any disclosure required by law, but in such case the
agreement of the other party hereto shall not be required.
Notices. All notices or other communications permitted or required
under this Agreement shall be in writing and shall be sufficiently given if and
when hand delivered to the persons set forth below or if sent by documented
overnight delivery service or registered or certified mail, postage prepaid,
return receipt requested, or by telegram, telex or telecopy, receipt
acknowledged, addressed as set forth below or to such other person or persons
and/or at such other address or addresses as shall be furnished in writing by
any party hereto to the others. Any such notice or communication shall be deemed
to have been given as of the date received, in the case of personal delivery, or
on the date shown on the receipt or confirmation therefor in all other cases.
To Seller: With a copy to:
Judge Imaging Systems, Inc. Drinker ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Broad & Chestnut Streets
Attention: ▇▇▇ ▇▇▇▇▇▇▇, Esquire ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Esquire
To Buyer: With a copy to:
Automated Office Products of ▇▇▇▇▇ Swados ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Western New York, Inc. Bradford & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇ ▇▇▇, Esquire
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Assignment and Benefit.
No party shall assign this Agreement or any rights hereunder, or
delegate any obligations hereunder, without prior written consent of the other
party hereto. Subject to the foregoing, this Agreement and the rights and
obligations set forth herein shall inure to the benefit of, and be binding upon,
the parties hereto, and each of their respective successors and assigns.
29
This Agreement shall not be construed as giving any person, other than
the parties hereto and their permitted successors and assigns, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any of
the provisions herein contained, this Agreement and all provisions and
conditions hereof being intended to be, and being, for the sole and exclusive
benefit of such parties, and permitted successors and assigns and for the
benefit of no other person or entity.
Amendment, Modification and Waiver. The parties may amend or modify
this Agreement in any respect, provided that any such amendment shall be in
writing. The waiver by a party of any breach of any provision of this Agreement
shall not constitute or operate as a waiver of any other breach of such
provision or of any other provision hereof, nor shall any failure to enforce any
provision hereof operate as a waiver of such provision or of any other provision
hereof.
Governing Law; Consent to Jurisdiction.
This Agreement is made pursuant to, and shall be construed and enforced
in accordance with, the internal laws of the Commonwealth of Pennsylvania (and
United States federal law, to the extent applicable), irrespective of the
principal place of business, residence or domicile of the parties hereto, and
without giving effect to otherwise applicable principles of conflicts of law.
Any legal action, suit or proceeding arising out of or relating to this
Agreement which is brought by Buyer shall be instituted in a court in the
Eastern District of Pennsylvania, and each party waives any objection which such
party may now or hereafter have to the laying of the venue of any such action,
suit or proceeding in, and irrevocably submits to the jurisdiction of, any such
court. Any and all service of process and any other notice in any such action,
suit or proceeding shall be effective against any party if made by certified or
registered mail, or by a nationally recognized overnight courier, directed to
Seller or Buyer, as the case may be, at the address provided for herein and
service so made shall be deemed to be completed upon actual receipt thereof, or
the next day following deposit of such notice with a nationally recognized
overnight courier.
Any legal action, suit or proceeding arising out of or relating to this
Agreement which is brought by Seller shall be instituted in a court in the
Western District of New York, and each party waives any objection which such
party may now or hereafter have to the laying of the venue of any such action,
suit or proceeding in, and irrevocably submits to the jurisdiction of, any such
court. Any and all service of process and any other notice in any such action,
suit or proceeding shall be effective against any party if made by certified or
registered mail, or by a nationally recognized overnight courier, directed to
Seller or Buyer, as the case may be, at the address provided for herein and
service so made shall be deemed to be completed upon actual receipt thereof, or
the next day following deposit of such notice with a nationally recognized
overnight courier.
Nothing herein contained shall be deemed to affect the right of any
party to serve process in any other manner permitted by law.
Section Headings and Defined Terms. The section headings contained
herein are for reference purposes only and shall not in any way affect the
meaning and interpretation of this Agreement. The terms defined herein and in
any agreement executed in connection herewith include the plural as well as the
singular and the singular as well as the plural, and the use of masculine
pronouns shall include the feminine and neuter. Except as otherwise indicated,
all agreements defined herein refer to the same as from time to time amended or
supplemented or the terms thereof waived or modified in accordance herewith and
therewith.
Invalidity/Severability. The invalidity or unenforceability of this
Agreement or any particular provision, or part of any provision, of this
Agreement in one jurisdiction shall not affect the validity or enforceability of
this Agreement or any particular provision or part of any provision of this
Agreement in any other jurisdiction and the invalidity or unenforceability of
any particular provision or part of any provision shall not affect the other
provisions or parts hereof, and this Agreement shall be construed in all
respects as if such invalid or unenforceable provisions or parts were omitted.
Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original; and any person may
become a party hereto by executing a counterpart hereof, but all of such
counterparts together shall be deemed to be one and the same instrument. It
shall not be necessary in making proof of this Agreement or any counterpart
hereof to produce or account for any of the other counterparts.
30
Entire Agreement. This Agreement, together with the agreements,
exhibits, schedules and certificates referred to herein or delivered pursuant
hereto, constitutes the entire agreement between the parties hereto with respect
to the purchase and sale of the Assets and the assumption of the Assumed
Liabilities and supersedes all prior agreements and understandings. The
submission of a draft of this Agreement or portions or summaries thereof does
not constitute an offer to purchase or sell the Assets, it being understood and
agreed that neither Buyer nor Seller shall be legally obligated with respect to
such a purchase or sale or to any other terms or conditions set forth in such
draft or portion or summary unless and until this Agreement has been duly
executed and delivered by all parties. Buyer's rights and remedies with respect
to the transactions contemplated by this Agreement and the other Transaction
Documents shall be controlled by and subject to the provisions of this
Agreement, and Buyer shall have no other rights or remedies except as set forth
in this Agreement.
IN WITNESS WHEREOF, each of the parties hereto has duly executed this
Asset Purchase Agreement, under seal, all as of the date first above written.
Attest JUDGE IMAGING SYSTEMS, INC.
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Secretary /s/ ▇▇▇▇▇▇ ▇. Judge, Jr., Chief Executive Officer
--------------------------- ------------------------
[Seal]
Attest AUTOMATED OFFICE PRODUCTS OF WESTERN NEW YORK, INC.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esquire /s/ ▇▇▇▇ ▇▇▇▇▇▇, President
----------------------- ---------------
[Seal]
The undersigned execute this Agreement solely for purposes of making
the representation set forth in Section 4.6 and joining in the covenant sets
forth in Section 5.5, in each case jointly and severally with the Buyer.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------
31
