Exhibit 10.5
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement") is made and is entered into this
2nd day of August, 1996, by, between and among ▇▇▇▇▇▇▇ COMPUTER RESOURCES, INC.,
a Delaware corporation, (the "Purchaser"), AA MICROSYSTEMS, INC., an Alabama
corporation (the "Seller"), and ▇▇▇▇▇▇ ▇▇▇▇▇▇ ("Shareholder").
W I T N E S S E T H :
WHEREAS, Seller has been engaged in the sale of computer systems and accessories
in Birmingham, Alabama; and
WHEREAS, Shareholder owns all the issued and outstanding stock, and is the sole
director, of Seller; and
WHEREAS, the parties are desirous of entering into an Asset Purchase Agreement
for the purchase by Purchaser of certain of the assets of Seller used in its
business (the "Business"); and
WHEREAS, Purchaser is willing to purchase such assets but only (i) upon the
terms and subject to the conditions set forth in this Agreement, (ii) the
representations, warranties, covenants, indemnifications, assurances and
undertakings of Seller and Shareholder contained in this Agreement and (iii)
except as otherwise provided herein, the agreements of Seller and Shareholder to
refrain from competition with Purchaser for the later of four (4) years from the
closing of this transaction or one (1) year after the termination of
Shareholder's employment with Purchaser pursuant to an Employment Agreement to
be executed upon the closing of this transaction.
NOW, THEREFORE, in consideration of the above premises and the mutual promises,
covenants, agreements, representations and warranties herein contained, the
parties hereto agree as follows:
1.
SALE AND PURCHASE OF ASSETS
1.1 AGREEMENT.
Seller agrees to sell and convey to Purchaser certain assets as
hereinafter set forth in Paragraph 1.2. Purchaser agrees to purchase
said assets. The agreements of Purchaser and Seller are expressly
conditioned upon the terms, conditions, covenants, representations
and warranties as hereinafter set forth.
1.2 ASSETS TO BE SOLD AND PURCHASED.
At the Closing (as defined in Section 11 hereof), Seller shall sell,
deliver, transfer and assign to Purchaser, free and clear of all
liens, security interests, claims, charges, restrictions, leases,
subleases, tenancies, licenses, easements, other rights of occupancy
or use by another and encumbrances of every kind, nature and
description, and Purchaser shall purchase for the consideration
hereinafter provided, those certain assets of Seller relating to
Seller's Business (the "Purchased Assets"). The Purchased Assets
shall be as follows:
(a) Certain inventory of computers, related equipment, service parts held
by Seller for resale in the ordinary course of business and the phone
system, all as set forth on Exhibit A, attached hereto.
(b) Service contracts of Seller as set forth on attached Exhibit B;
(c) The distribution agreements and authorizations of Seller as set forth
on attached Exhibit C;
(d) All customer lists of Seller's Birmingham, Alabama operation;
(e) Costs and sales records and data, including consolidated information
which relates to Seller's Birmingham, Alabama operations and invoices
and correspondence relating thereto; and
(f) The non-compete agreements with Seller and Shareholder as set forth on
Exhibits D and D-1.
1.3 ASSETS RETAINED BY SELLER.
Seller shall not sell and Purchaser shall not purchase any of the
assets of Seller, except the assets set forth in Section 1.2.
Specifically, Seller is not selling and Purchaser is not purchasing
any of Seller's cash or cash equivalents, accounts receivable,
inventory not set forth on Exhibit A, furniture, fixtures and leasehold
improvements, officer's life insurance, including its cash surrender
value, any federal, state or local tax refund(s), if any, owed to
Seller presently or in the future, any prepaid items, any part of
the Purchase Price (as defined in Section 3.1 hereof) to be received
by Seller for the sale of the Purchased Assets, the minute books of
Seller, its tax returns, corporate seal and stock records, or any
other assets not specifically set forth in Section 1.2.
1.4 INSTRUMENTS OF TRANSFER.
At Closing, the Seller will deliver to the Purchaser such bills of
sale, endorsements, assignments and other good and sufficient
instruments of transfer and assignment
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as shall be effective to vest in Purchaser good and marketable title
and interest in and to the Purchased Assets. At or after the
Closing, and without further consideration, the Seller and
Shareholder will execute and deliver to Purchaser such further
instruments of conveyance and transfer and take such other
action as Purchaser may reasonably request in order to more
effectively convey and transfer to Purchaser any of the Purchased
Assets or for aiding and assisting and collecting and reducing to
possession and exercising rights with respect thereto. Seller and
Shareholder agree to use their good faith efforts to obtain and
deliver to Purchaser such consents, approvals, assurances and
statements from third parties as Purchaser may reasonably
request in a form reasonably satisfactory to Purchaser. In
addition to the foregoing, Seller will deliver to Purchaser the
originals or copies of all of the Seller's books, records and
other data relating to the Purchased Assets; and simultaneously
with such delivery, the Seller and Shareholder shall take all such
acts as may be necessary to put Purchaser in actual possession,
and operating control of the Purchased Assets.
2.
ASSIGNMENT OF RIGHTS AND ASSUMPTION OF OBLIGATIONS
2.1 ASSIGNED RIGHTS.
Seller shall assign to Purchaser all of Seller's rights relating to the
service contracts set forth on Exhibit B and shall assign to
Purchaser all of Seller's rights relating to the phone system
contract described on Exhibit A. Seller and Purchaser further agree
to use their best efforts to obtain the necessary and appropriate
consent from any third party for the assignment of such service
contracts or phone system as may be reasonably requested by
Purchaser. Seller will pay Purchaser for any portion of the
contract for which work is performed after August 2, 1996 and for
which Seller has been paid prior to such date.
2.2 OBLIGATIONS ASSUMED.
Purchaser shall assume and become responsible for Seller's obligations
that accrued after the Closing Date under the service contracts
submitted to Purchaser as set forth on Exhibit B and under the
distribution agreements and authorizations set forth on Exhibit C and
the phone system contract described on Exhibit A attached hereto
(collectively, "Assumed Obligations").
2.3 LIABILITIES NOT BEING ASSUMED.
Notwithstanding anything in this Agreement to the contrary, Purchaser
shall not assume or become responsible for any claim, liability or
obligation of any nature whatsoever, whether known or unknown,
accrued, absolute, contingent or otherwise (a "Liability") of Seller
except the Assumed Obligations. Without limiting the generality of
the foregoing, the following are included among the Liabilities of
Seller
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which Purchaser shall not assume or become responsible for (unless
specifically included on the list of Assumed Obligations):
(i) all Liabilities for local, state, federal, sales, franchise, and
income and other taxes which have accrued or may accrue or become due
and payable by Seller either prior to, on or after the Closing Date,
including, without limitation, all taxes and fees of a similar nature
arising from the sale and transfer of the Purchased Assets to
Purchaser;
(ii) all accounts payable and other indebtedness and Liabilities of Seller
which are not assumed by Purchase under Section 2.2;
(iii) all Liabilities and obligations to directors, officers, employees or
agents of Seller, including, without limitation, all Liabilities and
obligations for wages, salary, bonuses, commissions, vacation or
severance pay, profit sharing or pension benefits, and all Liabilities
and obligations arising under any bonus, commission, salary or
compensation plans or arrangements of Seller, whether accruing prior
to, or on or after the Closing Date, but do not relate to any period
of employment with or engagement by Purchaser;
(iv) all Liabilities and obligations with respect to unemployment
compensation claims and workmen's compensation claims and claims for
race, age and sex discrimination or sexual harassment or for unfair
labor practice which occurred prior to the Closing Date and for which
any claim may be asserted by any of the Seller's employees, prior to,
on or after the Closing Date, but do not relate to any period of
employment with or engagement by Purchaser;
(v) all Liabilities of Seller to third parties for personal injury or
damage to property based on or arising from occurrences, circumstances
or events, or exposure to conditions, existing or occurring prior to
the Closing Date and for which any claim may be asserted by any third
party prior to, on or after the Closing Date;
(vi) all Liabilities and obligations of Seller arising under or by virtue
of environmental laws whether accruing prior to, on or after the
Closing Date;
(vii) all Liabilities of Seller, including any costs of attorneys' fees
incurred in connection therewith, for litigation, claims, demands or
governmental proceedings arising from occurrences, circumstances or
events, or exposure to conditions occurring or existing prior to, on
or after the Closing Date;
(viii) all Liabilities based on any theory of liability or product warranty
with respect to any product manufactured or sold by Seller prior to
the Closing Date and for which any claim may be asserted by any third
party, prior to, on or after the Closing Date;
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(ix) all attorneys' fees, accountants or auditors' fees, and other costs
and expenses incurred by Seller and/or Shareholder in connection with
the negotiation, preparation and performance of this Agreement or any
of the transactions contemplated hereby; and
(x) all other debts, Liabilities, obligations, contracts and commitments
(whether direct or indirect, known or unknown, contingent or fixed,
liquidated or unliquidated, and whether now or hereinafter arising)
arising out of or relating to the ownership, operation or use of any
of the Purchased Assets on or prior to the Closing Date or the conduct
of the Business as conducted by Seller whether prior to, on or after
the Closing Date, except only for the liabilities and obligations to
be performed by Purchaser constituting the Assumed Obligations.
Seller agrees to pay all its accounts payable, bank debt and other
liabilities not assumed hereunder in the ordinary course of business
and in accordance with the terms of such debt.
3.
CONSIDERATION FOR PURCHASED ASSETS
3.1 PURCHASE PRICE.
The purchase price for the Purchased Assets shall be Four Hundred
Sixty-Seven Thousand Four Hundred Sixty-Four and No/100 Dollars
($467,464.00), as may be adjusted as hereinafter provided (the "Purchase
Price").
3.2 PAYMENT OF THE PURCHASE PRICE.
The Purchase Price, subject to the adjustments otherwise described herein,
shall be paid to Seller as follows:
(a) A certified, or bank cashier's check or by wire transfer to Seller's
bank account payable to Seller in the amount of Sixty- Seven Thousand
Four Hundred Sixty-Four Dollars ($67,464.00) shall be paid at closing;
(b) The sum of Two Hundred Thousand Dollars ($200,000.00) shall be payable
in the form of the common stock of Purchaser. The number of shares of
Purchaser's stock to be issued to Seller under this Section shall be
determined by dividing $200,000.00 by the average of the closing price
for Purchaser's stock on the over-the-counter market for the twenty
previous business days preceding the Closing Date. Incident to the
issuance of such shares, Seller shall execute such documentation
containing such representations concerning the holding of Purchaser
shares, including that the Seller is able to bear the economic risk of
holding the shares to be
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delivered hereunder for the period required by applicable Federal
Securities Laws because such shares will not have been registered
under the Securities Act of 1933 and therefore cannot be sold unless
they are subsequently registered under the Act or an exemption from
registration is available; provided that Seller shall have the right
to effect a piggyback registration (as defined in Section 4 hereof).
The form of the documentation to be executed by Seller incident to the
issuance of these shares is attached hereto as Exhibit E.
(c) The remaining sum of Two Hundred Thousand ($200,000.00) Dollars shall
be payable pursuant to the terms of Purchaser's promissory note in the
form attached hereto as Exhibit F (the "Note"). The Note shall bear
interest at the prime rate of Star Bank, N.A. as of the date of
Closing Date. The face amount of the Note shall be reduced by Ten
Thousand Dollars ($10,000.00) (but not below zero dollars) for each of
the following former employees of Seller who are employed by Purchaser
on August 2, 1996 should he or she elect voluntarily to leave the
employment of Purchaser before the expiration of a ninety-day period
beginning on the 2nd day of August, 1996: (1) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, (2)
▇▇▇▇▇▇▇ ▇▇▇, (3) ▇▇▇▇ ▇▇▇▇ and (4) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇. The death,
disability, or termination without cause by the Purchaser shall not
reduce the face amount of the Note. The termination for cause by the
Purchaser of an individual named herein shall reduce the face amount
of the Note.
(Example: Assume that before the expiration of such ninety-day
period, two of the aforementioned individuals, voluntarily terminated
their employment with Purchaser. Pursuant to the adjustment set forth
above, the face amount of the Note would be amended to $180,000.00,
effective the date of execution and the Purchase Price would be
reduced to $430,000.00). The principal of the Note shall be payable
in three equal annual installments with the first principal payment
commencing on the first annual anniversary of the closing and the
remaining two (2) principal payments being due on the next two
successive annual anniversary dates. Interest on the unpaid principal
balance of the Note shall be paid quarterly.
3.3 ALLOCATION OF PURCHASE PRICE.
The Purchase Price shall be allocated among the Purchased Assets by Seller
and Purchaser in accordance with Exhibit G, attached hereto and made a part
hereof. The Seller and Purchaser agree to be bound by such allocation of
the Purchase Price and to file their respective tax returns accordingly.
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3.4 CERTAIN CLOSING EXPENSES.
Seller and Shareholder shall be liable for and shall pay all federal, state
and local sales taxes (if any) documentary stamp taxes, and all other
taxes, duties, or other like charges properly payable upon and in
connection with the conveyance and transfer of the Purchased Assets by
Seller to Purchaser.
4.
PIGGYBACK REGISTRATIONS
4.1 DEFINITIONS.
For purposes of this Section, the following terms shall, unless the context
otherwise requires, have the following meanings:
(a) "Piggyback Registration" means any registration of securities of
Purchaser (or any successor thereto) under the Securities Act of 1933,
as amended (other than a registration on Form S-3 relating to a
Dividend Reinvestment Plan, S-4 or S-8); provided, however, a
Piggyback Registration does not include any registration of securities
of Purchaser on behalf of The Computer Supply Store, Inc. or any
successor of The Computer Supply Store, Inc. pursuant to its demand
registration rights under Section 2 of the Registration Rights
Agreement dated March 14, 1996;
(b) "Registrable Securities" means the common stock of Purchaser issued to
Seller pursuant to Section 3.2(b) of this Agreement (and any shares of
common stock issued to Seller as a result of any stock split, stock
dividend, recapitalization or reorganization involving such additional
shares of common stock); provided, however, shares of common stock
will cease to be Registrable Securities when such shares have been
sold to the public in an offering registered under the Securities Act
of 1933, as amended, or in a transaction effected in accordance with
Rule 144 promulgated under the Securities Act of 1933, as amended;
(c) "Cutback Registration" means any registration in which the underwriter
or underwriters managing such registration advise Purchaser and
Purchaser in turn notifies in writing the holders of Registrable
Securities requested to be included therein, that marketing factors
require a limitation of the number of shares of common stock to be
underwritten in such registration.
4.2 PIGGYBACK REGISTRATION RIGHTS.
(a) If Purchaser at any time within five (5) years of the Closing Date
proposes to register any of its securities under the 1933 Act on a
form which permits inclusion of the shares of common stock held by
Seller (the "Shares") (or
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stock into which such Shares may be convertible upon such public
offering), it shall promptly each such time give written notice to
Seller of its intention to do so, and, upon the written request, given
within twenty (20) days after receipt of any such notice, of Seller to
register any Shares, Purchaser shall as soon as practicable thereafter
cause all such Shares specified by Seller to be registered under the
1933 Act, to the extent requisite to permit the sale or other
disposition by Seller of such Shares so registered.
(b) Whenever Purchaser is under an obligation hereunder to effect the
registration of any of its securities, Purchaser shall, as
expeditiously as practicable:
(i) Prepare and file with the Securities and Exchange Commission a
registration statement with respect to such securities and use
its best efforts to cause such registration statement to remain
effective;
(ii) Prepare and file with the Securities and Exchange Commission such
amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to
keep such registration statement effective, and to comply with
the provisions of the 1933 Act with respect to the sale or other
disposition of all securities covered by such registration
statement whenever Seller shall desire to sell or dispose of the
same;
(iii) Furnish to Seller such number of copies of the prospectus
contained in such registration statement, including any
preliminary prospectus, in conformity with the requirements of
the 1933 Act and such other documents as Seller may reasonably
request in order to facilitate the public sale or other
disposition of such securities;
(iv) Use every reasonable effort to register or qualify the securities
covered by such registration statement under the securities or
blue sky laws of such jurisdictions as the managing underwriters
of such public offering, if any, shall request and do any and all
other acts of things which may be necessary to enable Seller to
consummate the public sale or other disposition in such
jurisdictions of such securities; and
(v) Before filing the registration statement or prospectus of
amendments or supplements thereto, with the Securities and
Exchange Commission, furnish Seller's counsel with copies of all
such documents proposed to be filed, the portions of which
documents pertaining to Seller and its Shares shall be subject to
the reasonable approval of such counsel;
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PROVIDED, HOWEVER, that Purchaser shall not in any event be
required to use its best efforts to maintain the effectiveness of
any such registration statement for a period in excess of
one-hundred eighty (180) days.
(c) Seller shall pay its PRO-RATA share (based on the number of Shares it
is selling pursuant to the registration statement in relation to the
total number of shares of Purchaser's common stock being sold pursuant
thereto) of all expenses incurred in effecting the registrations
provided for herein, including, without limitation, all registration
and filing fees, printing expenses, fees and disbursements of counsel
for Purchaser, underwriting expenses and commissions, expenses of any
audits incident to or required by any such registration and expenses
of complying with the securities or blue sky laws of any
jurisdictions.
(d)(i) In the event of any registration of any of its securities under
the 1933 Act pursuant hereto, purchaser shall indemnify and hold
harmless the Seller and any affiliate thereof against any losses,
claims, damages or liabilities, joint or several, to which such
Seller or affiliate may become subject under the 1933 Act or any
other statute or common law, in so far as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out
of or are based upon (1) any alleged untrue statement of any
material fact contained, on the effective date thereof, in any
registration statement under which such securities were
registered under the 1933 Act, any preliminary prospectus or
final prospectus contained therein, or any summary prospectus
issued in connection with any securities being registered, or any
amendment or supplement thereto, or (2) any alleged omission to
state in any such document a material fact required to be stated
therein or necessary to make the statements therein, in light of
the circumstances in which they were made, not misleading, and
shall reimburse Seller or affiliates, for any legal or other
expenses reasonably incurred by Seller or affiliate, in
connection with investigating or defending any such loss, damage,
liability or action; PROVIDED, HOWEVER, that Purchaser shall not
be liable to any Seller or affiliate, in any such case to the
extent that any such loss, claim, damage or liability arises out
of or is based upon any alleged untrue statements or alleged
omission made in such registration statement, preliminary
prospectus, summary prospectus, prospectus, or amendment or
supplement thereto in reliance upon and in conformity with
written information furnished to Purchaser by Seller or affiliate
for use therein, or upon such statement or omission therein based
on the authority of an expert within the meaning of that term as
defined in the 1933 Act (but only if Purchaser had no reasonable
ground to believe, and did not believe, that the statements made
on the authority of an
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expert were untrue or that there was an omission to state a
material fact).
(ii) Seller shall indemnify and hold harmless Purchaser any affiliate
thereof against any losses, claims, damages, or liabilities,
joint or several, to which any such Purchaser or affiliate may
become subject under the 1933 Act or any other statute or at
common law, in so far as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are
based upon (1) any alleged untrue statement of any material fact
contained, on the effective date thereof, in any registration
statement under which such securities were registered under the
1933 Act at the request of Seller, any preliminary prospectus or
final prospectus contained therein, or any summary prospectus
issued in connection with any such securities being registered,
or any amendment or supplement thereto, or (2) any alleged
omission to state in any such document a material fact required
to be stated therein or necessary to make the statements therein,
in light of the circumstances in which they were made, not
misleading, in the case of (1) or (2) to the extent, but only to
the extent, that such alleged untrue statement, preliminary
prospectus, summary prospectus, prospectus, amendment or
supplement in reliance upon and in conformity with written
information furnished to Purchaser by Seller for use therein, and
then only to the extent that such alleged untrue statements or
alleged omissions by Seller were not based on the authority of an
expert (within the meaning of that term as defined in ▇▇▇▇ ▇▇▇)
as to which Seller had no reasonable ground to believe, and did
not believe, that the statements made on the authority of such
expert were untrue or that there was an omission to state a
material fact.
(iii) Notwithstanding anything contained herein to the contrary, the
indemnity contained in subparagraphs (i) and (ii) above shall
remain in full force and effect regardless of any investigation
made by or on behalf of Seller or affiliate thereof in the case
of subparagraph (i) and regardless of any investigation made by
or on behalf of Purchaser or affiliate thereof in the case of
subparagraph (ii), and such indemnity shall survive the Closing
Date and any subsequent transfer of such securities by Seller of
affiliate.
(e) If
(i) Seller requests registration of any of its Shares under paragraph
(1) above, and
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(ii) the offering proposed to be made is to be an underwritten public
offering, and
(iii) the managing underwriters of such public offering furnish a
written opinion that the total amount of securities to be
included in such offering would exceed the maximum amount of
securities (as specified in such opinion) which can be marketed
at a price reasonably related to the then current market value of
such securities;
then the rights of Seller, the holders of other securities having the
right to include such securities in such registration and Purchaser to
participate in such offering shall be in the following order of
priority:
First: Seller and the person(s) (including Purchaser in the case of a
primary offering) requesting such registration shall be entitled to
participate PRO RATA among themselves in accordance with the number of
shares of Purchaser's common stock which Seller and such person(s)
shall request to be registered; and then
Second: Purchaser (if the offering is not a primary offering) and all
holders of other securities having the right to include such
securities in such registration shall be entitled to participate in
accordance with the relative priorities, if any, as shall exist among
them and Purchaser.
No securities of Purchaser (issued or unissued) other than those
registered and included in the underwritten offering shall be offered
for sale or other disposition in a transaction which would require
registration under the 1933 Act until the expiration of 180 days after
the effective date of the registration statement in which the Shares
were included pursuant to paragraph (a) above or such earlier time
consented to by the managing underwriters.
5.
EMPLOYMENT AGREEMENT
5.1 EMPLOYMENT AGREEMENT OF SHAREHOLDER.
At Closing, Purchaser shall enter into an Employment Agreement with
Shareholder. A copy of said Employment Agreement is attached hereto and
made a part hereof as Exhibit H.
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6.
REPRESENTATIONS AND WARRANTIES OF THE SELLER
AND THE SHAREHOLDER
Except as set forth in the Disclosure Schedule attached hereto as Exhibit
I, the Seller and Shareholder, jointly and severally, represent and warrant
to Purchaser that the following statements are true and correct as of the
date hereof and shall remain true and correct as of the Closing as if made
again at and as of that time:
6.1 ORGANIZATION, GOOD STANDING, QUALIFICATION AND POWER OF SELLER.
Seller is a corporation duly organized, validly existing and in good
standing under the laws of the State of Alabama and has the corporate power
and authority to own, lease and operate the Purchased Assets and to
conduct the Business currently being conducted by it. The Seller is duly
qualified and in good standing in each of the jurisdictions in which it is
required by the nature of its business or the ownership of its properties
to so qualify. Seller has no subsidiaries.
6.2 CAPITALIZATION.
The Seller and Shareholder represent and covenant that 100 shares of no par
common stock of Seller, representing one hundred percent (100%) of the
issued and outstanding stock of Seller are currently owned by the
Shareholder, are fully paid and nonassessable and have not been issued in
violation of the preemptive rights of any person. Seller is not obligated
to issue or acquire, nor has it granted options or any similar rights with
respect to any of its securities.
6.3 AUTHORITY TO MAKE AGREEMENT.
Seller and Shareholder each have the full legal power and authority to
enter into, execute, deliver and perform their respective obligations under
this Agreement and each of the other agreements, instruments and other
instruments to be executed and delivered by Seller and Shareholder incident
hereto ("Other Seller Documents"). This Agreement and the Other Seller
Documents have been duly and validly executed and delivered by Seller and
Shareholder, and are the legal and binding obligation of each of them,
enforceable in accordance with their respective terms. Seller has taken
all necessary action (including action of its Board of Directors and
Shareholder) to authorize and approve the execution and delivery of this
Agreement and the Other Seller Documents, the performance of its
obligations thereunder and the consummation of the transactions
contemplated thereby.
6.4 EXISTING AGREEMENTS, GOVERNMENTAL APPROVALS AND PERMITS.
(a) The execution, delivery and performance of this Agreement and the
Other Seller Documents by Seller and Shareholder, the sale, transfer,
conveyance,
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assignment and delivery of the Purchased Assets to Purchaser as
contemplated in this Agreement, and the consummation of the other
transactions contemplated thereby: (i) do not violate any provisions
of law, statute, ordinance or regulation applicable to Seller,
Shareholder or the Purchased Assets, (ii) will not conflict with, or
result in the breach or termination of any provision of, or constitute
a default under (in each case whether with or without the giving of
notice or the lapse of time or both) the Articles of Incorporation or
Bylaws of Seller or any indenture, mortgage, lease, deed of trust, or
other instrument, contract or agreement or any license, permit,
approval, authority, or any order, judgment, arbitration award, or
decree to which Seller or Shareholder is a party or by which Seller or
Shareholder or any of their respective assets and properties are bound
(including, without limitation, the Purchased Assets), and (iii) will
not result in the creation of any encumbrance upon any of the
properties, assets, or business of Seller or Shareholder. Neither
Seller, Shareholder nor any of their respective assets or properties
(including, without limitation, the Purchased Assets) is subject to
any provision of any mortgage, lease, contract, agreement, instrument,
license, permit, approval, authority, order, judgment, arbitration
award or decree, or to any law, rule, ordinance, or regulation, or any
other restriction of any kind or character, which would prevent Seller
or Shareholder from entering into this Agreement or any of the Other
Seller Documents or from consummating the transactions contemplated
thereby.
(b) Neither Seller nor Shareholder is a party to, subject to or bound by
any agreement, judgment, award, order, writ, injunction or decree of
any court, governmental body or arbitrator which would prevent the use
by Purchaser of the Purchased Assets in accordance with present
practices of Seller after the Closing Date or which, by operation of
law, or pursuant to its terms, would be breached, terminate, lapse or
be subject to termination or default under (in each case whether with
or without notice, the passage of time or both) upon the consummation
of the transactions contemplated in this Agreement.
(c) No approval, authority or consent of, or filing by Seller with, or
notification to, any foreign, federal, state or local court, authority
or governmental or regulatory body or agency or any person is
necessary to authorize the execution and delivery of this Agreement or
the Other Seller Documents by Seller or Shareholder, the sale,
transfer, conveyance, assignment and delivery of the Purchased Assets
to Purchaser, or the consummation of the other transactions
contemplated thereby, or to continue the use and operation of the
Purchased Assets by Purchaser after the Closing Date.
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6.5 TITLE TO PURCHASED ASSETS.
(a) With respect to all Purchased Assets sold, at the Closing Seller shall
have good and marketable title to the Purchased Assets being acquired
by Purchaser, free and clear of all liens, security interests,
encumbrances, leases and charges whatsoever, except for any lien for
ad valorem taxes which are not yet due and payable; immediately after
the transfer of all the Purchased Assets being acquired by Purchaser
from Seller, Purchaser will own all of said Purchased Assets free and
clear of all leases, liens, claims, encumbrances and charges
whatsoever, whether perfected or unperfected, except for any lien for
ad valorem taxes which are not yet due and payable; and, by way of
illustration but not limitation, there are not any unpaid taxes,
assessments or charges due or payable by Seller to any federal, state
or local agency, or any obligations or liabilities or any unsatisfied
judgments against, or, to the best of Seller's knowledge, any
litigation or proceedings pending or threatened against Seller by
Seller's employees, clients, customers, creditors, suppliers, or any
other party (nor state of facts for any such obligation, liability,
litigation or proceeding), that could become a claim, obligation,
liability, lien or other charge of or against Purchaser or the
Purchased Assets.
(b) Except as otherwise specifically set forth herein, Seller is not a
party to any contract, agreement, lease or commitment that would
result in any claim, obligation, liability, lien or other charge
against Purchaser or the Purchased Assets, and Purchaser is not
obligated to assume the obligations under any contract, agreement,
lease or commitment of Seller, except as specifically set forth
herein.
6.6 SERVICE CONTRACTS AND AUTHORIZATIONS.
The service contracts set forth on Exhibit B and the distribution
agreements, and authorizations set forth on Exhibit C, as well as the phone
system contract described on Exhibit A, to be assigned by Seller to
Purchaser hereunder shall be valid, subsisting and in full force and effect
as of the Closing Date; Seller has good right and power to assign the same
with the consent of all other parties thereto; the interest in said
agreements hereby assigned is free and clear from all encumbrances, and
there has been no material default in any of the obligations, covenants and
other provisions on the part of Seller to be kept and performed thereunder;
and upon the execution of the assignment and consent by the Seller,
Purchaser and other parties thereto, Purchaser shall acquire all the rights
and interests of Seller, as described in said agreements, free and clear
from all encumbrances.
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6.7 TAXES.
Except as to taxes not yet due and payable, and except for taxes the
payment of which is being diligently contested in good faith and by proper
proceedings and for which adequate reserves have been established in
accordance with the historic accounting practices of Seller, Seller has
filed all returns and reports that are now required to be filed by it in
connection with any federal, state or local tax, duty or charge levied,
assessed or imposed upon it, or its property, including unemployment,
social security and similar taxes; and all of such taxes have been either
paid or adequate reserves or other provision has been made therefor.
6.8 EMPLOYEE BENEFIT PLANS.
Seller has not incurred or accumulated any funding deficiency within the
meaning of the Employees Retirement Income Security Act of 1974, as
amended (ERISA) or incurred any liability to the Pension Benefit Guaranty
Corporation in connection with any employee benefit plan established or
maintained by the Seller and no reportable event or prohibited transaction,
as defined in ERISA, has occurred with respect to any plans of Seller.
Seller is not a party to nor has it ever been a party to any multiple
employer pension plan and has never incurred any withdrawal liability
incident thereto.
6.9 PAYMENTS TO EMPLOYEES.
All accrued obligations of Seller relating to employees and agents of
Seller, whether arising by operation of law, by contract, or by past
service, for payments to trusts or other funds or to any governmental
agency, or to any individual employee or agent (or his heirs, legatees, or
legal representatives) with respect to unemployment compensation benefits,
profit sharing or retirement benefits, or social security benefits have
been paid by Seller or will be paid by Seller. All obligations of Seller
as an employer or principal relating to employees or agents, whether
arising by operation of law, by contract, or by past practice, for vacation
and holiday pay, bonuses, and other forms of compensation which are or may
become payable to such employees or agents, have been paid or will be paid
by Seller.
6.10 CHANGE OF CORPORATE NAME.
At the Closing, Seller if requested by Purchaser will adopt and file with
the Secretary of State of Alabama a resolution changing the name of Seller
to a name substantially dissimilar to "AA Microsystems, Inc." and Seller
shall also execute a Consent for Use of Similar Name form, as set forth on
Exhibit "J," granting to Purchaser the use of the name "AA Microsystems,
Inc."
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6.11 BROKERS AND FINDERS.
No broker, finder or other person or entity acting in a similar capacity
has participated on behalf of Seller in bringing about the transaction
herein contemplated, or rendered any service with respect thereto or been
in any way involved therewith.
7.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Seller that the following statements
are true and correct as of the date hereof and shall remain true and correct as
of the Closing as if made again at and as of that time.
7.1 ORGANIZATION, GOOD STANDING AND POWER OF PURCHASER.
(a) Purchaser is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of Delaware and has full
power and lawful authority to execute, deliver and perform this
Agreement and the "Other Purchaser Documents" (as hereinafter
defined).
7.2 STATUS OF AGREEMENTS.
(a) All requisite corporate action to approve, execute, deliver and
perform this Agreement and each of the other agreements, instruments
and other documents to be delivered by and on behalf of Purchaser in
connection herewith (the "Other Purchaser Documents") has been taken
by Purchaser. This Agreement and the Other Purchaser Documents have
been duly and validly executed and delivered by Purchaser and
constitute the legal and binding obligation of Purchaser enforceable
in accordance with their respective terms. Purchaser has taken all
necessary actions (including actions of its Board of Directors) to
authorize and approve the execution and delivery of this Agreement and
the Other Purchaser Documents, the performance of its obligations
thereunder and the consummation of the transactions contemplated
thereby.
(b) No authorization, approval, consent or order of, or registration,
declaration or filing with, any court, governmental body or agency or
other public or private body, entity or person is required in
connection with the execution, delivery or performance of this
Agreement or any other agreement, instrument or document to be
delivered by or on behalf of Purchaser in connection herewith.
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(c) Neither the execution or delivery nor performance of this Agreement or
any of the other agreements, instruments or documents to be delivered
by or on behalf of Purchaser in connection herewith does or will
(i) conflict with, violate or result in any breach of any
judgment, decree, order, statute, rule or regulation
applicable to Purchaser;
(ii) conflict with, violate or result in any breach of any
agreement or instrument to which Purchaser is a party or by
which Purchaser is bound, or constitute a default thereunder
or give rise to a right of acceleration of an obligation of
Purchaser; or
(iii) conflict with or violate any provision of the Articles of
Incorporation or Code of Regulations of Purchaser.
7.3 BROKERS AND FINDERS.
No broker, finder or other person or entity acting in a similar capacity
has participated on behalf of Purchaser in bringing about the transaction
herein contemplated, or rendered any service with respect thereto or been
in any way involved therewith.
8.
BULK SALES ACT
8.1 COMPLIANCE WITH BULK SALES ACT.
Purchaser waives compliance with the provisions of any applicable bulk
sales law and Seller and Shareholder, jointly and severally, agree to
indemnify and hold harmless Purchaser from any liability incurred as a
result of the failure to so comply, except to liabilities explicitly
assumed hereunder by Purchaser.
9.
COMPETITION
9.1 As an inducement for and in consideration of Purchaser entering into this
Agreement, Seller and Shareholder agree to enter into a covenant not to
compete agreement, in the form of Exhibits D and D-1, respectively,
attached hereto and made a part hereof.
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10.
SURVIVAL OF AND RELIANCE UPON
REPRESENTATIONS, WARRANTIES AND AGREEMENTS; INDEMNIFICATION
10.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND INDEMNITIES.
Notwithstanding anything to the contrary contained herein, the parties
acknowledge and agree that all representations, warranties, indemnities and
agreements contained in this Agreement or in any agreement, instrument,
exhibit, certificate, schedule or other document delivered in connection
herewith, shall survive the Closing and continue to be binding upon the
party giving such representation, warranty, indemnity or agreement and
shall be fully enforceable to the extent provided for in Sections 10.3 and
10.4 hereof, at law or in equity, for the period beginning on the Closing
Date and ending one (1) year thereafter, except for (i) the representations
made in Section 6.7, which shall survive the Closing for a period of two
(2) years and (ii) the representations, warranties, indemnities and
agreements designated and identified in Sections 2.3, 6.3, 6.5(a) (with
respect to good and marketable title to the Purchased Assets), 6.5(b) and
7.2, which shall survive the Closing and shall terminate in accordance with
the statute of limitations governing written contracts in the State of
Alabama; and (iii) Exhibits D and D-1 which shall terminate as provided
therein.
10.2 RELIANCE UPON AND ENFORCEMENT OF REPRESENTATIONS, WARRANTIES AND
AGREEMENTS.
(a) Seller hereby agrees that, notwithstanding any right of Purchaser to
fully investigate the affairs of Seller, and notwithstanding
knowledge of facts determined or determinable by Purchaser pursuant to
such investigation or right of investigation, Purchaser has the right
to rely fully upon the representations, warranties and agreements of
Seller contained in this Agreement and upon the accuracy of any
document, certificate or exhibit given or delivered to Purchaser
pursuant to the provisions of this Agreement.
(b) Purchaser hereby agrees that, notwithstanding any right of Seller to
fully investigate the affairs of Purchaser, and notwithstanding
knowledge of facts determined or determinable by Seller pursuant to
such investigation or right of investigation, Seller has the right to
rely fully upon the representations, warranties and agreements of
Purchaser contained in this Agreement and upon the accuracy of any
document, certificate or exhibit given or delivered to Seller pursuant
to the provisions of this Agreement.
10.3 INDEMNIFICATION BY SELLER AND SHAREHOLDER.
Seller and Shareholder (jointly and severally) shall indemnify Purchaser
against and hold it harmless from:
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(i) any and all loss, damage, liability or deficiency resulting from
or arising out of any inaccuracy in or breach of any
representation, warranty, covenant, or obligation made or
incurred by Seller herein or in any other agreement, instrument
or document delivered by or on behalf of Seller in connection
herewith;
(ii) any imposition (including by operation of law) or attempted
imposition by a third party upon Purchaser of any liability of
Seller which Purchaser has not specifically agreed to assume
pursuant to Section 2.2 of this Agreement;
(iii) any liability (except for any Assumed Obligation described in
Section 2.2) or other obligation incurred by or imposed upon
Purchaser resulting from the failure of the parties to comply
with the provisions of any law relating to bulk transfers which
may be applicable to the transaction herein contemplated; and
(iv) any and all costs and expenses (including reasonable legal and
accounting fees) related to any of the foregoing, subject to the
provisions of Section 10.5.
The aggregate amount that the Purchaser may recover from Seller and
Shareholder as a result of the breach or violation of the representations,
warranties, covenants and agreements contained herein and otherwise
pursuant to this Section 10 shall be limited to a maximum amount of Three
Hundred Fifty Thousand and No/100 Dollars ($350,000.00).
Notwithstanding the above, no claims for indemnification shall be made by
Purchaser against the Seller and/or Shareholder until such time as all
claims hereunder total more than Twenty Thousand Dollars ($20,000.00) in
the aggregate. Indemnification shall be made only to the extent such claim
or claims exceed such threshold amount in the aggregate. Any amounts to
which Purchaser, its successors or assigns, is entitled to indemnification
pursuant to the provisions of this Section, subject to the provisions of
Section 10.5, shall be offset against the amount payable to Seller under
the Note. Provided, however, the offset in any one year may not exceed the
aggregate amount of principal and interest due on said Note for said year.
Except as provided herein, nothing in this Section 10 shall be construed to
limit the amount to which, or the time in which, by reason of offset, or
otherwise, that Purchaser may recover from Seller and Shareholder pursuant
to this Agreement resulting from the breach of any representation,
warranty, covenant or agreement contained herein.
10.4 INDEMNIFICATION BY PURCHASER.
Purchaser shall indemnify Seller against and hold it harmless from any and
all loss, damage, liability or deficiency resulting from or arising out
of: (i) any Assumed
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Obligations; (ii) Purchaser's operation of its business or ownership of the
Purchased Assets subsequent to the Closing (except to the extent such
liability is the result of a breach of a covenant or warranty of Seller
hereunder); or (iii) any inaccuracy in or breach of any representation,
warranty, covenant or obligation made or incurred by Purchaser herein; and
(iv) any and all related costs and expenses (including reasonable legal and
accounting fees), subject to the provisions of 10.5. Except as
specifically provided herein, nothing in this Section 10.4 shall be
construed to limit the amount to which (except as described in Section
10.1), or the time by which, by reason of offset or otherwise, that Seller
may recover from Purchaser pursuant to this Agreement resulting from its
breach or violation of any representation, warranty, covenant or agreement
contained herein.
10.5 NOTIFICATION OF AND PARTICIPATION IN CLAIMS.
(a) No claim for indemnification shall arise until notice thereof is given
to the party from whom indemnity is sought (the "Indemnifying
Party"). Such notice shall be sent within ten (10) days after the
party to be indemnified has received notification of such claim, but
failure to notify the Indemnifying Party shall in no event prejudice
the right of the party to be indemnified under this Agreement, unless
the Indemnifying Party shall be prejudiced by such failure and then
only to the extent of such prejudice. In the event that any legal
proceeding shall be instituted or any claim or demand is asserted by
any third party in respect to which Seller/Shareholder on the one
hand, or Purchaser on the other hand, may have an obligation to
indemnify the other, the party asserting such right to indemnity (the
"Party to be Indemnified") shall give or cause to be given to the
party from whom indemnity is sought (the "Indemnifying Party") written
notice thereof and the Indemnifying Party shall have the right, at its
option and expense, to participate in the defense of such proceeding,
claim or demand, but not to control the defense, negotiation or
settlement thereof, which control shall at all times rest with the
Party to be Indemnified, unless the Indemnifying Party irrevocably
acknowledges in writing full and complete responsibility for and
agrees to provide indemnification of the Party to be Indemnified, in
which case such Indemnifying Party may assume such control through
counsel of its choice and at its expense. In the event a third party
asserts a claim due to a repeat service call, the Indemnifying Party
shall have the option of responding to such claim prior to the Party
to Indemnified responding to such claim. In the event the
Indemnifying Party assumes control of the defense, the Indemnifying
Party shall not be responsible for the legal costs and expenses of the
Party to be Indemnified in the event the Party to be Indemnified
decides to join in such defense. The parties hereto agree to
cooperate fully with each other in connection with the defense,
negotiation or settlement of any such third party legal proceeding,
claim or demand.
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(b) If the Party to be Indemnified is also the party controlling the
defense, negotiation or settlement of any matter, and if the Party to
be Indemnified determines to compromise the matter, the Party to be
Indemnified shall immediately advise the Indemnifying Party of the
terms and conditions of the proposed settlement. If the Indemnifying
Party agrees to accept such proposal, the Party to be Indemnified
shall proceed to conclude the settlement of the matter, and the
Indemnifying Party shall immediately indemnify the Party to be
Indemnified pursuant to the terms of Sections 10.3 and 10.4 hereunder.
If the Indemnifying Party does not agree within fourteen (14) days to
accept the settlement (said 14-day period to begin on the first
business day following the date such party receives a complete copy of
the settlement proposal), the Indemnifying Party shall immediately
assume control of the defense, and negotiation of the settlement
thereof, at the Indemnifying Party's expense. The Party to be
Indemnified shall be indemnified in the entirety for any liabilities
arising out of the ultimate defense, negotiation or settlement of such
matter.
(c) If the Indemnifying Party is the party controlling the defense,
negotiation or settlement of any matter, and the Indemnifying Party
determines to compromise the matter, the Indemnifying Party shall
immediately advise the Party to be Indemnified of the terms and
conditions of the proposed settlement and irrevocably acknowledge in
writing full and complete responsibility for, and agree to provide,
indemnification of the Party to be Indemnified. If the Party to be
Indemnified agrees to accept such proposal, the Indemnifying Party
shall proceed to conclude the settlement of the matter and immediately
indemnify the Party to be Indemnified pursuant to the terms of
Sections 10.3 or 10.4 hereunder. If the Party to be Indemnified does
not agree within fourteen (14) days to accept the settlement (said
14-day period to begin on the first business day following the date
such party receives a complete copy of the settlement proposal), the
Party to be Indemnified shall immediately assume control of the
defense, negotiation or settlement thereof, at the Party to be
Indemnified's expense. If the final amount paid to resolve the claim
is less than the amount of the original proposed settlement made by
the Indemnifying Party, then the Party to be Indemnified shall receive
such indemnification pursuant to Sections 10.3 or 10.4 hereof,
including any and all expenses incurred by the Party to be Indemnified
incurred in connection with the defense, negotiation or settlement of
such matter. If the amount finally paid to resolve the claim is equal
to or greater than the amount of the original proposed settlement
proposed by the Indemnifying Party, then the Indemnifying Party shall
provide indemnification pursuant to Sections 10.3 and 10.4 for the
amount of the original settlement proposal submitted by the
Indemnifying Party, and the Party to be Indemnified shall be
responsible for all amounts in excess of the original settlement
proposal submitted by the Indemnifying Party and all costs and
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expenses incurred by the Party to be Indemnified in connection with
such defense, negotiation or settlement.
Notwithstanding anything contained herein to the contrary, the sole remedy
available to either party for a breach by the other party of any
representation, warranty, covenant or agreement contained herein shall be
to exercise its rights under this Section 10, subject, however, to the
procedures and limitations set forth in this Section 10.
11.
THE CLOSING
11.1 DATE, TIME AND PLACE OF CLOSING.
Consummation of the transactions contemplated hereby (the "Closing") shall
take place on the 2nd day of August, 1996 (the "Closing Date"), at 9:00
a.m. EST at the offices of ▇▇▇▇▇▇▇▇▇ & Dreidame Co., L.P.A., ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, or on such other Closing Date,
or at such other time and/or place as the parties may mutually agree upon.
11.2 CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS.
The obligation of Purchaser to perform in accordance with this Agreement
and to consummate the transactions herein contemplated is subject to the
satisfaction of the following conditions at or before the Closing:
(a) The Seller shall have complied with and performed all of the
representations, warranties, agreements and covenants hereunder
required to be performed by it prior to or at the Closing;
(b) There shall be no pending or threatened legal action which, if
successful, would prohibit consummation or require substantial
rescission of the transactions contemplated by this Agreement;
(c) Seller shall have delivered to Purchaser, at or before the Closing,
the following documents, all of which shall be in form and substance
reasonably acceptable to the Purchaser and its counsel:
(i) The instrument of transfer required by Section 1.4;
(ii) Releases (or copies thereof) of all liens, claims, charges,
encumbrances, security interests and restrictions on the
Purchased Assets necessary to provide Purchaser with good,
marketable and indefeasible title to each of the Purchased Assets
at the Closing;
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(iii) Certified copies of the corporate actions taken by the Board of
Directors and shareholder of Seller, authorizing the execution,
delivery and performance of this Agreement;
(iv) Certificate of Good Standing for Seller from the Secretary of
State of Alabama dated no earlier than fifteen (15) days prior to
Closing;
(d) Seller will adopt and file with the Secretary of State of Alabama a
resolution changing the name of Seller substantially dissimilar to AA
Microsystems, Inc. and Seller shall execute a Consent of Similar Name
form, as set forth on Exhibit "J", granting to Purchaser the use of
the name "AA Microsystems, Inc.";
(e) Seller and Shareholder shall have executed the Covenant Not to Compete
Agreements set forth on Exhibits D and D-1; and
(f) Shareholder shall have executed the Employment Agreement set forth on
Exhibit H.
11.3 CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS.
The obligation of Seller to perform in accordance with this Agreement and
to consummate the transactions herein contemplated is subject to the
satisfaction of the following conditions at or before the Closing:
(a) Performance by Purchaser of all of the representations, warranties,
agreements and covenants to be performed by it at or before the
Closing;
(b) There shall be no pending or threatened legal action which, if
successful, would prohibit consummation or require substantial
rescission of the transactions contemplated by this Agreement;
(c) Purchaser shall deliver to Seller at or before the Closing the
following documents, all of which shall be in form and substance
acceptable to Seller and its counsel:
(i) A certified or official bank check for the aggregate amount to be
paid to Seller at the Closing pursuant to Section 3.2(a) hereof;
(ii) The Note, as set forth in Section 3.2(c);
(iii) The stock of Purchaser to be delivered to Seller pursuant to
Section 3.2(b) hereof;
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(iv) Certified copies of the corporate actions taken by Purchaser
authorizing the execution, delivery and performance of this
Agreement; and
(v) Certificate of Good Standing for Purchaser from the Secretary of
State of Delaware dated no earlier than fifteen (15) days prior
to the date of Closing.
(d) Purchaser shall enter into with Shareholder, the Employment Agreement
set forth in Exhibit "H".
(e) Purchaser shall execute a lease substantially in the form of Exhibit K
to lease approximately eight thousand five hundred (8,500) shares feet
of space in a building owned by AA Management, L.L.C. for a lease term
of not less than three (3) years and at a monthly lease amount of
approximately Six and 75/100 Dollars ($6.75) per square foot.
12.
GENERAL PROVISIONS
12.1 PUBLICITY.
All public announcements relating to this Agreement or the transactions
contemplated hereby will be made by Purchaser with the consent of Seller,
which consent will not be unreasonably withheld.
12.2 EXPENSES.
Except to the extent otherwise specifically provided herein, Purchaser will
bear and pay all of its expenses incident to the transactions contemplated
by this Agreement which are incurred by Purchaser or its representatives
and Seller shall bear and pay all of the expenses incident to the
transactions contemplated by this Agreement which are incurred by Seller or
its representatives.
12.3 NOTICES.
All notices and other communications required by this Agreement shall be in
writing and shall be deemed given if delivered by hand or mailed by
registered mail or certified mail, return receipt requested, to the
appropriate party at the following address (or at such other address for a
party as shall be specified by notice pursuant hereto):
(a) If to Purchaser, to:
Pomeroy Computer Resources, Inc.
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇ III, Esq.
▇▇▇▇▇▇▇▇▇ & Dreidame
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
(b) If to Seller, to:
AA Microsystems, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Berkowitz, Lefkovits, ▇▇▇▇ and ▇▇▇▇▇▇▇
1600 SouthTrust Tower
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(c) If to Shareholder, to:
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Berkowitz, Lefkovits, ▇▇▇▇ and ▇▇▇▇▇▇▇
1600 SouthTrust Tower
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
12.4 BINDING EFFECT.
Except as may be otherwise provided herein, this Agreement and all the
provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, legal representatives,
successors and assigns.
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12.5 HEADINGS.
The headings in this Agreement are intended solely for convenience of
reference and shall be given no effect in the construction or
interpretation of this Agreement.
12.6 EXHIBITS.
The Exhibits referred to in this Agreement constitute an integral part of
this Agreement as if fully rewritten herein.
12.7 COUNTERPARTS.
This Agreement may be executed in multiple counterparts, each of which
shall be deemed an original, but all of which constitute together one and
the same document.
12.8 GOVERNING LAW.
This Agreement shall be construed in accordance with and governed by the
laws of the State of Alabama, without regard to its laws regarding conflict
of laws.
12.9 SEVERABILITY.
If any provision of this Agreement shall be held unenforceable, invalid, or
void to any extent for any reason, such provision shall remain in force and
effect to the maximum extent allowable, if any, and the enforceability or
validity of the remaining provisions of this Agreement shall not be
affected thereby.
12.10 WAIVERS; REMEDIES ACCUMULATED.
No waiver of any right or option hereunder by any party shall operate as a
waiver of any other right or option, or the same right or option with
respect to any subsequent occasion for its exercise, or of any right to
damages. No waiver by any party of any breach of this Agreement or of any
representation or warranty contained herein shall be held to constitute a
waiver of any other breach or a continuation of the same breach. All
remedies provided in this Agreement are in addition to all of the remedies
provided by law. No waiver of any of the provisions of this Agreement
shall be valid and enforceable unless such waiver is in writing and signed
by the party granting the same.
12.11 ASSIGNMENTS.
Except as otherwise provided in this Agreement, no party shall assign its
rights or obligations hereunder prior to Closing without the prior written
consent of the other party.
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12.12 ENTIRE AGREEMENT.
This Agreement and the agreements, instruments and other documents to be
delivered hereunder constitute the entire understanding and agreement
concerning the subject matter hereof. All negotiations between the parties
hereto are merged into this Agreement, and there are no representations,
warranties, covenants, understandings, or agreements, oral or otherwise, in
relation thereto between the parties other than those incorporated herein
and to be delivered hereunder. Except as otherwise expressly contemplated
by this Agreement, nothing expressed or implied in this Agreement is
intended or shall be construed so as to grant or confer on any person, firm
or corporation other than the parties hereto any rights or privilege
hereunder. No supplement, modification or amendment of this Agreement
shall be binding unless executed in writing by the parties hereto.
12.14 BUSINESS RECORDS.
Seller shall be permitted to retain copies of such books and records
relating to the Purchased Assets and relate to the accounting and tax
matters of the Business and to have access to all original copies of
records so delivered to Purchaser at reasonable times, for any reasonable
business purpose, for a period of six (6) years after the Closing.
12.15 INVOICING OF SALES.
Sales made by Seller but not invoiced prior to Closing will be invoiced by
Purchaser. Seller will reimburse Purchaser for such inventory on such jobs
at cost.
The parties hereto have executed this Agreement as of the date first above
written.
WITNESSES: AA MICROSYSTEMS, INC.
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