ASSET PURCHASE AGREEMENT By And Among INX INC., DATATRAN NETWORK SYSTEMS AND MEL SAROWITZ FEBRUARY 3, 2006
This Asset Purchase Agreement (“Agreement”) is made this 3rd day of
February, 2006, by and among INX Inc., a Delaware corporation (“Buyer”), Datatran Network
Systems, a California corporation (“Seller”), and ▇▇▇ ▇▇▇▇▇▇▇▇ (“Shareholder”).
WHEREAS, Seller is engaged in the business of designing, installing and supporting computer
data networks and IP telephony systems in selected cities in the United States (the “Seller’s
Business”);
WHEREAS, Seller desires to sell to Buyer and Buyer desires to purchase from Seller, certain
assets, properties and rights of Seller utilized by it in connection with the operation of Seller’s
Business upon the terms and conditions of this Agreement;
WHEREAS, Shareholder is the owner of approximately ninety-five percent (95%) of the
outstanding capital stock of Seller;
WHEREAS, as an inducement to Buyer to enter into this Agreement, Shareholder has approved this
Agreement and agreed to become a party to this Agreement pursuant to the terms hereof; and
WHEREAS, Seller has provided the Seller disclosure letter dated the same date as this
Agreement, together with related schedules, attachments and exhibits thereto (the “Seller
Disclosure Letter”), which is incorporated herein by reference;
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual covenants contained
herein and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
ARTICLE I.
PURCHASE AND SALE OF ASSETS
PURCHASE AND SALE OF ASSETS
1.1 Purchase and Sale of Assets. Pursuant to the terms and subject to the conditions set
forth in this Agreement, at the Closing (defined in Section 1.8 below), Seller shall sell, assign,
transfer, convey and deliver to Buyer, free and clear of all mortgages, pledges, liens, claims,
charges, encumbrances and other security interests (collectively, “Security Interests”),
and Buyer shall purchase only the assets, properties, and rights of Seller described below (all of
such specifically described assets, properties and rights being hereinafter collectively referred
to as the “Purchased Assets”):
(a) Personal Property. All of the equipment, computer hardware, furniture, fixtures,
appliances, furnishings, all computer and telecommunications equipment, appliances and systems
which are owned by Seller, leasehold improvements and other personal property listed on Schedule
1.1(a) to the Seller Disclosure Letter;
(b) Intellectual Property. (i) All inventions (whether patentable or unpatentable and
whether or not reduced to practice), all improvements thereto, and all patents, patent
applications, and patent disclosures, together with all reissuances, continuations,
continuations-in-part, revisions, extensions, and reexaminations thereof, including the right to
enforce any rights embodied therein and to collect damages for any past, infringement of such
rights by third parties, (ii) ideas and conceptions to the extent that such are legally recognized
as a proprietary intangible right under common law or by a national (including the United States)
or multinational statutory invention registrations, patents, patent registrations and patent
applications (including all reissues, divisions, continuations, continuations-in-
part, extensions and reexaminations) and all rights therein provided by international treaties or
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conventions and all improvements to the inventions disclosed in each such registration, patent or
application, (iii) all trademarks, service marks, trade dress, logos, trade names, and corporate
names, together with all translations, adaptations, derivations, and combinations thereof and
including all goodwill associated therewith, all applications, registrations, and renewals in
connection therewith, and the right to register, perfect and enforce any rights embodied therein
and to collect damages for any past, infringement of such rights by third parties, (iv) all
copyrightable works, all copyrights, and all applications, registrations, and renewals in
connection therewith, (v) all mask works and all applications, registrations, and renewals in
connection therewith, (vi) all trade secrets and confidential business information (including
ideas, research and development, know-how, formulas, techniques, technical data, designs, drawings,
specifications, customer, supplier and vendor lists, pricing and cost information, and business and
marketing plans and proposals), (vi) all computer software (including data and related
documentation) developed or owned by Seller, including source code, operating systems and
specifications, data, databases files, documentation and other materials and documentation related
thereto, (vii) all other proprietary rights, (viii) all licenses, and (ix) all copies and tangible
embodiments thereof (in whatever form or medium) (collectively, (i) through (ix) above, the
“Intellectual Property”);
(c) Domain Names. All of Seller’s right, title and interest in and to each domain
name and the registration thereof, all associated universal resource locators, whether registered
in the name of Seller or by any other person on behalf of Seller, together with all goodwill
connected with and symbolized by such domain names or locators, and any intellectual property
rights relating thereto, including, but not limited to, e-mail addresses, websites, translations,
adaptations, derivations, copyrights, and combinations thereof, all applications, registrations,
and renewals in connection therewith, and the right to register, perfect and enforce any rights
embodied therein, including the right to collect damages for any past, infringement of such rights
by third parties to the extent any such intellectual property rights exist (the “Domain
Names”), each of which is listed on Schedule 1.1(c) to the Seller Disclosure Letter;
(d) Documents. A copy of all of Seller’s books, records, papers and documents which
relate to the Purchased Assets, including all purchase and sales records and customer and supplier
records;
(e) Inventory. All inventories of product including raw material, work-in-process,
finished products, packing materials, stores and supplies, spare parts, samples, point of sale
material and merchandise of Seller held for resale by Seller, but only to the extent listed on
Schedule 1.1(e) to the Seller Disclosure Letter (the “Inventory”);
(f) Contract Rights.
(i) All rights under the uncompleted portion of the Acquired Partially
Completed Contracts (defined in Section 2.21);
(ii) All rights whatsoever to all contracts, agreements, joint ventures,
commitments, leases, licenses, purchase orders and other agreements, whether oral or
written arising out of the operation of Seller’s Business other than the Retained
Partially Completed Contracts and the Acquired Partially Completed Contracts,
including but not limited to those listed on Schedule 1.1(f)(iii) to the Seller
Disclosure Letter (the “Acquired Contracts”)
(g) Name. The right to use the name “Datatran Network Systems” and all variants
thereof;
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(h) Manufactures’ and Vendors’ Warranties. All rights under manufacturers’ and
vendors’ warranties related to items included in the Purchased Assets, including but not limited to
such of the foregoing as are listed on Schedule 1.1(h) to the Seller Disclosure Letter.
(i) Cisco VIP Rebate. All Cisco Systems, Inc. rebates paid by Cisco after the
Closing Date under Cisco’s VIP rebate program for Cisco’s VIP 7 rebate period that is computed
based upon product sales after the Closing Date (the “Cisco VIP Rebate”), but only to the
extent such Cisco VIP Rebate was generated from or based upon products or items that were invoiced
to customers by Buyer after the Closing Date, with Seller retaining rights to any Cisco VIP Rebate
funds generated from or based upon products or items that were invoiced to customers by Seller on
or prior to the Closing Date. Seller agrees to pay to Buyer, within ten (10) days after receipt
from Cisco, any portion of any Cisco VIP Rebate funds received by Seller after the Closing Date
that were generated from or based upon products invoiced to customers by Buyer after the Closing
Date. Schedule 1.1(i) to the Seller Disclosure Letter contains a complete and accurate list of all
Cisco VIP Rebates earned by Seller but not yet paid to Seller as of the Closing Date.
(j) Non-Cisco Supplier Rebates. All rights to vendor rebates and credits other than
the Cisco VIP Rebate, whether relating to periods before or after the Closing.
(k) Deposits. All cash and collateral deposits made under the terms of leases and
other contracts included in other categories of purchased assets.
1.2 Assets Excluded from Sale. Other than the Purchased Assets, Buyer is not purchasing and
Seller is not selling any other asset or right of Seller. Schedule 1.2 to the Seller Disclosure
Letter sets forth assets that are specifically excluded from the definition of Purchased Assets.
1.3 Transfer of Purchased Assets. Seller shall deliver or cause to be delivered to Buyer such
other good and sufficient instruments reasonably requested by Buyer transferring to Buyer title to
all of the Purchased Assets or Seller’s interest therein, all in accordance with this Agreement.
Such instruments of transfer (a) shall be in the form which is usual and customary for transferring
the type of property involved under the laws of the jurisdictions applicable to such transfers, (b)
shall be in form and substance reasonably satisfactory to Buyer and its counsel, (c) shall
effectively vest in Buyer good and marketable title, or Seller’s interest therein as provided in
this Agreement, to all of the Purchased Assets, free and clear of all Security Interests, and (d)
where applicable, shall be accompanied by evidence of the discharge of all Security Interests
against the Purchased Assets.
1.4 Retained Liabilities. Buyer shall not assume and shall not be liable for any Liabilities
(as defined below) of Seller other than the Assumed Liabilities (as defined in Section 1.5 below)
(collectively, the “Retained Liabilities”), and all such Retained Liabilities shall be and
remain the responsibility of Seller, including, without limitation, any Liabilities arising out of
or the result of any activity associated with the Purchased Assets prior to the Closing,
Liabilities under any contract to which Seller is a party, Liabilities with respect to all Taxes
(as defined in Section 2.12 below), Liabilities relating to, or arising under or in connection
with, any Employee Benefit Plan (as defined in Section 3.1(p) below), or any Liabilities related to
any Environmental Law (as defined in Section 3.1(t) below). Seller shall discharge in a timely
manner or shall make adequate provision for all Retained Liabilities, Shareholder and Seller shall
jointly and severally indemnify Buyer and hold it harmless against all Retained Liabilities. As
used in this Agreement, the term “Liability” and “Liabilities” shall mean and
include any direct or indirect indebtedness, guaranty, endorsement, claim, loss, damage,
deficiency, cost,
expense, obligation or responsibility, fixed or unfixed, known or unknown, asserted or unasserted,
liquidated or unliquidated, secured or unsecured.
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1.5 Assumed Liabilities. As of the Closing, Buyer will assume and thereafter in due
course pay and fully satisfy, as and when the same shall become due and payable, the following
liabilities and obligations (the “Assumed Liabilities”):
(a) certain liabilities and obligations of Seller in respect of customer contracts arising in
the regular and ordinary course of the conduct of Seller’s Business consistent with past practice
prior to the Closing Date, including all obligations under (i) the Acquired Contracts and (ii) the
obligations remaining after the Closing under the Acquired Partially Completed Contracts, but
excluding any liabilities resulting from (A) the Retained Partially Completed Contracts, or (B) any
warranty claim or breach of any contract prior to the Closing Date;
(b) all liabilities in the form of notes payable listed on Schedule 1.5(b) to the Seller
Disclosure Letter, which are directly associated with Tangible Personal Property in the Purchased
Assets, with such liabilities not to exceed $50,000;
(c) all vendor accounts listed on Schedule 1.5(c) to the Seller Disclosure Letter;
(d) all obligations arising after the Closing Date under the office space lease contract for
the office space located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ which property lease
contract is set forth on Schedule 3.1(j)(ii) to the Seller Disclosure Letter. All rent payment
obligations paid by Seller prior to Closing for any period after the Closing shall be prorated
between Seller and Buyer based on the time period the lease space was occupied by Seller prior to
Closing.
1.6 Purchase Price. The purchase price for the Purchased Assets and the covenants
of Shareholder and Seller included herein, is an aggregate purchase price of $1,500,000, consisting
of (i) Nine Hundred Thousand Dollars $900,000 in cash (the “Cash Consideration”) plus (ii)
One Hundred Thousand Dollars ($100,000) (the “Holdback”) payable as set forth in Section
2.19; plus (ii) certificates representing an aggregate number of shares (the “Stock
Consideration”) of the Buyer’s common stock, $0.001 par value, (“Buyer Common Stock”)
determined by dividing $500,000 by the greater of (A) the average closing price per share for the
Buyer Common Stock, as reported by the AMEX for the five (5) consecutive trading days ending prior
to the second day before the date of Closing (the “Closing Stock Price”) and (B) $4.50 per
share. The Stock Consideration shall be issued and delivered to Seller at the Closing.
1.7 Additional Purchase Consideration. In addition to the purchase price set forth in Section
1.6 above, Buyer shall deliver the following additional purchase consideration, if any, after the
Closing (the “Additional Purchase Consideration”) based upon the financial performance of
Buyer’s branch office that comprise a portion of the Purchased Assets as set forth in this Section
1.7. Additional Purchase Consideration shall be calculated by Buyer and paid by Buyer to Seller as
provided for below.
(a) As used in this Section 1.7, “Revenue” shall mean the net revenue attributable to
Buyer’s branch office in Los Angeles, California, which makes up the acquired business that is the
subject of this Agreement (the “Acquired Business”), and shall be calculated as the net
revenue of such branch office, calculated in accordance with Generally Accepted Accounting
Principals (“GAAP”) consistently applied by Buyer. Shareholder and the Seller hereby
acknowledge and agree that Buyer shall have the right but not the obligation to set-off any amount
payable to Buyer by Seller or Shareholder under this Agreement against any amount owed or payable
by Buyer to Seller or Shareholder under this
Agreement, including, but not limited to, this Section 1.7, calculated in accordance with
Section 9.5 hereof.
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(b) Buyer shall calculate the Revenue for the period beginning on the start of the first day
of the month after the Closing Date and ending 12 months later. If the Revenue for that period (i)
equals or exceeds $9,000,000 but is less than $9,250,000, then the amount of the Additional
Purchase Consideration shall be $125,000, (ii) equals or exceeds $9,250,000 but is less than
$9,500,000, then the amount of the Additional Purchase Consideration shall be $250,000, (iii )
equals or exceeds $9,500,000 but is less than $10,000,000, then the amount of the Additional
Purchase Consideration shall be $375,000, (iv) equals or exceeds $10,000,000 then the amount of the
Additional Purchase Consideration shall be $500,000 or (v) is less than $9,000,000, then the amount
of the Additional Purchase Consideration shall be zero. Any such Additional Purchase Consideration
shall be paid by Buyer to Seller on or prior to 14 months after the closing date and shall be
payable as follows: fifty percent (50%) of such Additional Purchase Consideration shall be paid to
Seller in cash and the remainder shall be paid, at Buyer’s sole discretion, (A) in cash, or (B) by
the issuance to Seller of such number of shares of Buyer Common Stock determined by dividing (I)
fifty percent (50%) of such Additional Purchase Consideration by (II) the average closing price per
share for the Common Stock as reported by the AMEX for the five (5) consecutive trading days ending
prior to March 1, 2007.
1.8 Closing. The consummation of the transactions contemplated by this Agreement (the
“Closing”) shall take place at the offices of INX Inc. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ on the later of (a) February 3, 2006, or (b) the first
business day after all of the conditions set forth in Articles VI and VII hereof have been
satisfied or waived, or such other place and time as the parties may mutually agree (the
“Closing Date”). All of the deliveries and other transactions required to take place at
the Closing and all documents relating thereto shall be interdependent and none shall be effective
unless and until all are effective (except to the extent that the party entitled to the benefit
thereof has waived satisfaction or performance thereof as a condition precedent hereto).
1.9 Deliveries at the Closing. At the Closing, (a) Seller shall deliver to Buyer the various
certificates, instruments and documents referred to in Article VI below, and (b) Buyer will deliver
to Seller the various certificates, instruments, and documents referred to in Article VII below.
1.10 Consummation of Closing. All acts, deliveries, and confirmations comprising the Closing,
regardless of chronological sequence, shall be deemed to occur contemporaneously and simultaneously
upon the occurrence of the last act, delivery, or confirmation of the Closing and none of such
acts, deliveries, or confirmations shall be effective unless and until the last of the same shall
have occurred.
ARTICLE II.
ADDITIONAL AGREEMENTS
ADDITIONAL AGREEMENTS
2.1 Noncompetition, Nonsolicitation and Confidentiality. For purposes of this Agreement, the
following definitions shall apply:
(a) “Affiliate” with respect to any Person, shall mean and include any Person
controlling, controlled by or under common control with such Person either as of or following the
date of this Agreement;
(b) “Company Activities” shall mean either (i) designing, installing or supporting
computer data networks and / or IP telephony systems, (ii) promoting, marketing or selling computer
data
network equipment and / or IP telephony systems, (iii) designing, implementing, promoting,
marketing or selling software applications for IP telephony applications, or (iv) engaging in any
other business
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activities which are conducted, offered or provided by Seller, Buyer or any
Affiliate of either of them at any time during the 12-month period prior to the date of this
Agreement.
(c) “Confidential Information” shall mean any data or information (whether written or
not, tangible or intangible), of Buyer, Seller or any Affiliate of either of them, other than Trade
Secrets (as defined below), which is valuable to Buyer, Seller or any Affiliate of either of them
and not generally known to competitors or which by its nature is generally treated as confidential
or proprietary;
(d) “Noncompete Period” shall mean from the date of Closing through February 3, 2010;
(e) “Nonsolicitation Period” shall mean from the date of Closing through February 3,
2011;
(f) “Person” shall mean any individual, corporation, partnership, limited liability
company, firm, joint venture, association, joint-stock company, trust, unincorporated organization
or other entity;
(g) “Protected Area” shall mean Texas and California; and
(h) “Trade Secrets” shall mean information related to the Company Activities,
including, but not limited to, technical or nontechnical data, formulas, patterns, compilations, or
programs, including, without limitation, computer software and related source codes, devices,
methods, techniques, drawings, processes, financial data, financial plans, product plans, lists of
actual or potential customers or suppliers, or other information similar to any of the foregoing,
which derives economic value, actual or potential, from not being generally known to, and not being
readily ascertainable by proper means by, other persons who can derive economic value from its
disclosure or use.
2.2 Confidentiality. Buyer, Seller and Shareholder shall keep confidential the existence of
this Agreement, the transactions described herein and all Trade Secrets and Confidential
Information relating to the Company Activities; provided, however, that Seller and Shareholder may,
upon obtaining the prior written consent of the Buyer, disclose the existence of this Agreement and
the terms hereof, but solely in the manner and subject to any restrictions or limitations imposed
on such disclosure by Buyer in connection with granting such prior written consent. The provisions
of this Section 2.2 shall not apply with respect to any information which (a) was already known by
one party when such information was received from the other party, (b) was available to the general
public at the time of such receipt, (c) subsequently becomes known to the general public through no
fault or omission by a party hereto, (d) is subsequently disclosed by a third party which has the
bona fide right to make such disclosure, (e) is disclosed by Buyer to potential lenders and
investors who agree to keep such information confidential, (f) is required to be disclosed by law
or a governmental agency, including for income tax reporting purposes (and the filing of this
Agreement by Buyer with the Securities and Exchange Commission is expected), or (g) is required to
be disclosed in order to enforce this Agreement.
2.3 Trade Secrets. Seller and Shareholder, as well as the officers, directors and employees
of Seller shall hold in confidence at all times after the date hereof all Trade Secrets and
Confidential Information related to Seller, Buyer and any of either of their Affiliates and shall
not disclose, publish or make use of those Trade Secrets or Confidential Information at any time
after the date hereof, without the prior written consent of Buyer, except (a) any information or
document required to be disclosed by law or (b) information that becomes public knowledge through
means other than an act of Shareholder or Seller.
Nothing in this Agreement shall diminish the rights of Seller or Buyer regarding the protection of
Trade Secrets, Confidential Information and other intellectual property pursuant to applicable law.
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2.4 Trade Name and Confidential Information.
(a) Seller and Shareholder shall not, directly or by assisting others, own, manage, operate,
join, control or participate in the ownership, management, operation or control of any business
conducted under the corporate or trade name of Seller (or any variation thereof) or any of its
Affiliates (other than as an employee of Buyer or one of its Affiliates) without the prior written
consent of Buyer; and
(b) Seller and Shareholder shall hold in confidence all Confidential Information related to
Seller, Buyer or any of either of their Affiliates and shall not disclose, publish or make use of
that Confidential Information without the prior written consent of Buyer, except (i) any
information or document required to be disclosed by law or (ii) information that becomes public
knowledge through means other than an act of Seller or Shareholder.
2.5 Non-Competition.
(a) Coverage. Seller and Shareholder hereby acknowledge that Buyer, either directly
or indirectly through one or more of its Affiliates, conducts or will conduct Company Activities
throughout the Protected Area, and acknowledges that to protect adequately the interest of Buyer in
the operation of each Person through which it will engage in Company Activities after the date of
this Agreement, it is essential that any noncompete covenant with respect thereto cover all Company
Activities in the Protected Area except as specifically provided in Section 2.5(b) below.
(b) Covenant. During the Noncompete Period, neither Seller nor Shareholder shall in
any manner, directly or indirectly, engage in or have an equity or profit interest in, or render
services to any business that conducts any Company Activities in the Protected Area.
Notwithstanding anything herein to the contrary, nothing in this Agreement shall prevent or
prohibit Seller or Shareholder from owning not more than 5% of a class of equity securities issued
by any entity listed on any national securities exchange or interdealer quotation system.
2.6 Nonsolicitation of and Noninterference with Employees, Customers and Vendors. During the
Nonsolicitation Period, neither Seller nor Shareholder shall, in any manner, directly or
indirectly:
(a) solicit or attempt to solicit, any business from any customers or prospective customers of
Buyer or any of its Affiliates for purposes of engaging in any Company Activities in any Protected
Area;
(b) recruit or hire away or attempt to recruit or hire away, on its behalf or on behalf of any
other person, firm or corporation, any employee of Buyer or any of its Affiliates; or
(c) interfere with or otherwise attempt to affect Buyer’s relationship with any employee,
customer, or prospective customer, supplier or vendor (other than Covad Communications, Group,
Inc., American Power Conversion, Inc. and Masergy Communications, Inc.) of Buyer or any of its
Affiliates.
2.7 Acknowledgment. Seller, Shareholder and Buyer each acknowledge and agree that the
covenants set forth in Sections 2.2, 2.3, 2.4, 2.5 and 2.6 are reasonable as to time, scope and
territory
given Buyer’s need to protect its Trade Secrets, Confidential Information and its substantial
investment in the Purchased Assets, its employees, customers and vendors, particularly given the
complexity and
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competitive nature of Buyer’s and its Affiliate’s business. Seller and Shareholder
further acknowledge that (a) it would be difficult to calculate damages to Buyer and its Affiliates
from any breach of Seller’s or Shareholder’s obligations under either of Sections 2.2, 2.3, 2.4,
2.5 or 2.6, (b) that injuries to Buyer and its Affiliates from any such breach would be irreparable
and impossible to measure, and (c) that the remedy at law for any breach or threatened breach of
Seller’s or Shareholder’s obligations under either of Sections 2.2, 2.3, 2.4, 2.5 or 2.6 of this
Agreement would therefore be an inadequate remedy, and accordingly, Buyer shall, in addition to all
other available remedies (including without limitation seeking such damages as it can show it and
its Affiliates have sustained by reason of such breach or the exercise of all other rights it has
under this Agreement), be entitled to injunctive and other similar equitable remedies. Shareholder
acknowledges that he will be subject to separate noncompete and nonsolicitation provisions in
connection with his employment by Buyer following the Closing. Accordingly, if the duration or
scope of the noncompete or nonsolicitation applicable to Shareholder under the terms of Buyer’s
standard employment documents is for any reason shorter than the duration of the Noncompete Period
or Nonsolicitation Period or narrower in scope than as set forth in this Agreement, Shareholder
hereby acknowledges that he shall be subject to the Noncompete Period and Nonsolicitation Period
set forth in this Agreement notwithstanding any of the terms of his employment terms with Buyer.
2.8 Further Assurances. Each party hereto from time to time hereafter at any other party’s
request and without further consideration shall execute and deliver to such other party such
instruments of transfer, conveyance and assignment in addition to those delivered pursuant to this
Agreement as shall be reasonably requested to transfer, convey and assign more effectively the
Purchased Assets to Buyer, the costs of which shall be paid by the requesting party.
2.9 Expenses. Except as otherwise provided herein, Buyer, Seller and Shareholder shall each
be responsible for their own expenses incurred in connection with the negotiations among the
parties, and the authorization, preparation, execution and performance of this Agreement and the
transactions contemplated hereby. In addition, Seller shall be responsible for all costs
associated with terminating any Employee Benefit Plan of Seller (e.g., 401(k), pension, profit
sharing plans) prior to or at Closing.
2.10 Brokers. Buyer shall indemnify Seller and hold it harmless from and against all claims
or demands for commissions or other compensation by any broker, finder, or similar agent claiming
to have been employed by or on behalf of Buyer. Seller and shareholder shall jointly and severally
indemnify Buyer and hold it harmless from and against all claims or demands for commissions or
other compensation by any broker, finder or similar agent claiming to have been employed by or on
behalf of Seller.
2.11 Publicity. After the Closing Date, all press releases and other public announcements
respecting the subject matter hereof shall be made only by Buyer; provided, however, that Seller
may make any disclosure required to be made under applicable law if it has determined in good faith
that it is necessary to do so and used its best efforts, prior to the issuance of the disclosure,
to provide Buyer with a copy of the proposed disclosure and to discuss the proposed disclosure with
Buyer.
2.12 Liability for Taxes. Seller shall be liable for, and shall together with Shareholder,
jointly and severally, indemnify and hold Buyer harmless from, (a) all Taxes (as defined below) and
Security Interests relating to any Tax that are imposed on (either before or after the Closing
Date) or incurred with respect to the Purchased Assets for any period ending on or before the
Closing Date, (b) any Taxes payable as a result of a breach by Seller or Shareholder of any of the
representations set forth in Section 3.1(i) hereof, and (c) any necessary and reasonable attorneys’
fees or other costs incurred by Buyer or its Affiliates in connection with any payment from Seller
under this Section 2.12. Buyer and
Seller agree to provide assistance to one another and to cooperate fully with one another after the
Closing Date to account for all Taxes that may be imposed on or incurred with respect to the
Purchased Assets
Asset Purchase Agreement
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during any period prior to the Closing Date. Buyer shall pay directly all excise,
sales, transfer and other similar Taxes, levies and charges from California state taxing authority,
if any (including all bulk sales taxes, if any), that may be imposed upon, or payable or
collectible or incurred in connection with, this Agreement and the transactions contemplated hereby
up to a maximum of $5,000.00 and all such other amounts shall be paid by Seller. All obligations
under this Section 2.12 shall survive the Closing hereunder and continue until 30 days following
the expiration of the statute of limitations on assessment of the relevant Tax. As used herein,
“Tax” or “Taxes” means all taxes, however denominated, including any interest or
penalties or additions thereto whether disputed or not, including any obligation to indemnify or
otherwise assume or succeed to the tax Liability of any other Person that may become payable in
respect thereof, imposed by any federal, state, local or foreign government or any agency or
political subdivision of any such government, which taxes shall include, without limiting the
generality of the foregoing, all income taxes (including, but not limited to, United States federal
income taxes and state income Taxes), payroll and employee withholding taxes, unemployment
insurance, social security, sales and use taxes, excise taxes, environmental taxes, franchise
taxes, gross receipts taxes, occupation taxes, real and personal property taxes, stamp taxes,
transfer taxes, withholding taxes, workers’ compensation taxes, escheat, value-added taxes,
alternative or add-on minimum taxes and other obligations of the same or of a similar nature,
whether discovered before, on or after the Closing.
2.13 Right to Refunds. If Seller, on the one hand, or Buyer, on the other hand, receives a
refund of any Taxes for which the other has paid such Taxes, then the party receiving such refund
shall, within 30 days after its receipt, remit such refund to the party who paid such Taxes;
provided, however, that this section shall not affect the Liability of the parties for Taxes as set
forth in Section 2.12 hereof.
2.14 Intercompany Transactions. Prior to the Closing, all intercompany payables and
receivables between Seller and Shareholder and between Seller and any of its Affiliates that in any
way is related to or otherwise affects any Purchased Asset shall be released by Seller, Shareholder
or any Affiliate of either of them, as the case may be, and Shareholder hereby releases any claims
or other rights he or she may have in and to any of the Purchased Assets.
2.15 Allocation of Purchase Price. For all income tax purposes, each of the parties shall
report the transactions contemplated by this Agreement as an “applicable asset acquisition” by
Buyer within the meaning of Section 1060 of the Internal Revenue Code of 1986, as amended. In
connection therewith, each of the parties hereby agrees that the fair market value of any Class I,
Class II, Class III, Class IV or Class V assets (as described in Section 1.1060-1(c)(2) of the
Treasury Regulations) of Seller at the Closing will be equal to their respective federal income tax
bases to Seller immediately prior thereto, and the excess of the total consideration (as determined
pursuant to Section 1.1060-1(c)(1) of the Treasury Regulations) paid for the Purchased Assets by
Buyer over such aggregate tax bases shall be allocable to Class VI and Class VII assets as
described in such Treasury Regulations. Buyer and Seller shall cooperate in good faith to mutually
agree upon and complete IRS Form 8594 (Asset Acquisition Statement Under Section 1060). Buyer
shall prepare and deliver a draft IRS Form 8594 (Asset Acquisition Statement Under Section 1060) to
Seller within 180 days after the Closing Date and unless Seller objects to such draft IRS Form 8594
within ten day of its receipt from Buyer, Seller shall be deemed to have agreed to such draft IRS
Form 8594. Seller shall timely file such Form 8594 with the IRS reporting the transaction in
compliance with this Section 2.15. In any proceeding related to the determination of any Tax, no
party may contend or represent that the allocation is not a current allocation.
2.16 Name Change. Seller shall execute and deliver an amendment to its Article of
Incorporation to change its name to a name other than Datatran Network Systems or any variant
thereof in acceptable form to be filed with the California Secretary of State office
and any other jurisdiction where Seller is qualified to do business within 180 days following
the date of this Agreement; provided, however, that for a period of one year following the Closing
Date, Buyer hereby grants to Seller the non-
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9
exclusive and terminable right and license to use the
name “Datatran Network Systems” solely for purposes of facilitating invoicing and billing of
customers party to any Retained Partially Completed Contract.
2.17 Employees. The term “Key Employees” shall be defined as those individuals listed
on Schedule 2.17 to the Seller Disclosure Letter. Other than the Key Employees, Buyer shall have
no obligation to offer employment to any of Seller’s existing employees.
2.18 Consent of Third Parties.
(a) Despite anything to the contrary in this Agreement, this Agreement shall not constitute an
assignment or transfer of, or an agreement to assign or transfer, any Governmental Approval
(defined below), contract, instrument, lease, permit or other agreement or arrangement or any
claim, right or benefit arising thereunder or resulting therefrom if an assignment or transfer or
an attempt to make such an assignment or transfer without the consent of a third party would
constitute a breach or violation thereof or would violate any applicable law or regulation, or
would otherwise affect adversely the rights of Seller or Buyer thereunder; and any transfer or
assignment by Seller of any interest under any such Governmental Approval, contract, instrument,
lease, permit or other agreement or arrangement that requires the consent or approval of a third
party shall be made subject to such consent or approval being first obtained. As used herein,
“Governmental Approval” means any consent, approval, authorization, waiver, permit, grant,
franchise, concession, agreement, license, exemption or order of, registration, certificate,
declaration or filing with, or report or notice to, any federal, state or local government, or any
political subdivision thereof, any entity exercising executive, legislative, judicial, regulatory
or administrative functions of or pertaining to government, including, without limitation, any
governmental authority, agency, department, board, commission or instrumentality of the United
States, any state of the United States or any political subdivision thereof, and any tribunal or
arbitrator(s) of competent jurisdiction, and any self-regulatory organization.
(b) Seller will give any required notices, and Buyer and Seller will cooperate following the
Closing, using their respective commercially reasonable best efforts, in order to obtain necessary
third party consents to the sale and transfer of the Purchased Assets as contemplated by this
Agreement.
(c) Seller and Buyer will give any notices to, make any filings with, and use its commercially
reasonable best efforts to obtain any Governmental Approval in connection with the consummation of
the transactions contemplated by this Agreement.
(d) With respect to any consents or approvals that have not been obtained on or before the
Closing Date, Seller and Buyer shall cooperate in any lawful arrangement that is reasonable for
both Buyer and Seller (considering all relevant factors including practicality, financial burden
and risk) to provide that Buyer shall receive the interest of Seller in the net benefits under any
such Governmental Approval, contract, instrument, lease, permit or other agreement or arrangement
or any claim, right or benefit arising thereunder or resulting therefrom. Such arrangements may
include (if lawful and reasonable considering all relevant factors) the performance by Buyer as
agent for Seller such that Buyer will derive the benefit of such agreement to the extent that Buyer
would have benefited if the necessary third party consent or approval had been obtained. Seller
and Buyer agree to use their respective good faith, commercially reasonable efforts to negotiate
and document any such arrangements.
2.19 Holdback. On the Closing Date the Holdback shall be paid by wire transfer to Amegy Bank,
N.A., Houston, Texas (the “Escrow Agent”), to be held by the Escrow Agent in an escrow
account (the “Escrow Account”) to satisfy any claims by Buyer against Seller or Shareholder for a
period of up to
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10
one (1) year after the Closing Date (the “Escrow Period”), in accordance with the
terms of the Escrow Agreement in the form attached to this Agreement as Exhibit B (the
“Escrow Agreement”). At the end of each calendar month during the Escrow Period Buyer
shall, in good faith, determine what amount of reduction in the Holdback is justified based on the
activity related to the Retained Open Customer Contracts and the Acquired Partially Completed
Contracts and then deliver to the Escrow Agent an instruction to disburse funds in an amount that
will maintain sufficient funds in the Escrow Account to reasonably satisfy any future claims by
Buyer against Seller. Interest on the Holdback shall be paid in accordance with the terms of the
Escrow Agreement. Following the expiration of the Escrow Period, Buyer shall cause the remaining
balance of the Holdback together with interest or income thereon, if any, after the payment of all
such claims and reservation of amounts reasonably deemed sufficient to satisfy unresolved claims,
to be distributed by the Escrow Agent to Seller within five (5) Business Days in accordance with
the terms of the Escrow Agreement. The costs and expenses associated with the establishment and
maintenance of the Escrow Account shall be borne by the Buyer.
2.20 Retained Partially Completed Contracts. There will be certain uncompleted customer
contracts of Seller that will be retained by Seller after Closing, either because such contracts
were already substantially fulfilled and billed by Seller prior to Closing, or because the consent
to assignment of the contract cannot be obtained from the customer, or for other reasons. These
retained partially completed customer contracts (the “Retained Partially Completed
Contracts”) are listed on Schedule 2.20 to the Seller Disclosure Letter. Seller shall retain
the Retained Partially Completed Contracts following the Closing, and will retain the obligations
and duties under the Retained Partially Completed Contracts following Closing, but shall utilize
Buyer exclusively as Seller’s agent to perform the services to the customer required to complete
the Retained Partially Completed Contracts following Closing. Seller and Buyer shall cooperate
with each other in good faith to ensure that customers under contracts listed on this schedule,
properly direct to Seller all payments owed to Seller thereunder. In the event that through error
or mistake, any customer under a contract listed on this schedule, directly pays Buyer for any
amount owed by such customer to Seller under a contract listed on this schedule, Buyer shall
promptly forward such misdirected amounts to Seller.
(a) In order to fulfill any obligation or duty under the Retained Partially Completed
Contracts to deliver products to the customer following the Closing, Seller shall acquire such
products exclusively from Buyer, at a price equal to the price to be billed to the customer under
the Retained Partially Completed Contract, such that any gross profit generated from deliveries of
products to the customer under the Retained Partially Completed Contracts after the Closing is
fully realized by Buyer and no gross profit is realized by Seller following the Closing.
(b) Seller shall engage Buyer, as Seller’s exclusive agent, to perform any and all services
that are required to complete the Retained Partially Completed Contracts (as defined below)),
billing Seller for such services at Buyer’s Service Billing Rates (defined below) for such
services. Buyer’s hourly billing rates for service work, which shall apply for all purposes under
this Agreement, are set forth on Schedule 2.20(b) to the Seller Disclosure Letter (the “Buyer’s
Service Billing Rates”).
(c)
2.21 Acquired Partially Completed Contracts. There will be certain partially completed
customer contracts of Seller that will be assigned or conveyed to Buyer by Seller pursuant to this
Agreement for which Seller has already performed a certain portion of such contracts prior to
closing, and/or Seller has already billed the customer prior to Closing for a portion of such
contracts, which acquired partially completed contracts are listed on Schedule 2.21 to the Seller
Disclosure Letter (the
“Acquired Partially Completed Contracts”). Following the Closing, Seller and Buyer shall
cooperate to ensure that Buyer and Seller share in the Economic Benefit (defined below) of each of
the Acquired Partially Completed Contracts based on the percentage of the total contract that was
completed by Seller
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11
prior to the Closing as compared to the total percentage of the contract that
was completed by Buyer following the Closing. For this purpose, the percentage of completion of
each such Acquired Partially Completed Contract shall be calculated based upon the total Direct
Cost (defined below) of performing such contract incurred by Seller prior to the Closing, as
compared to the total Direct Cost of performing such contract by Buyer following the Closing,
calculated after the Acquired Partially Completed Contract is completed by Buyer following the
Closing. As used in this Section 2.21, the term “Direct Cost” shall mean any (a) direct
cost of inventory, goods and equipment, including freight and shipping costs, (b) direct,
unburdened labor cost of technician and/or engineering employees, and (c) direct cost of a
subcontractor used to perform the contract; provided that Seller’s Direct Cost shall be reduced by
the amount of any warranty claim by customer or rejection of deliverables by customer that occur
after the Closing but relate to goods or services provided by Seller prior to the Closing. Buyer
shall incur no Direct Cost of performing such contracts prior to the Closing and Seller shall incur
no Direct Cost of performing such contracts after the Closing. Schedule 2.21 to the Seller
Disclosure Letter sets forth all of the Direct Cost that Seller has incurred in performing the
Acquired Partially Completed Contracts as of the Closing Date and shall be the Direct Cost used
following the Closing to calculate the percentage of total Direct Cost incurred by Seller prior to
the Closing as compared to the percentage of total Direct Cost incurred by Buyer following the
Closing. After each of the Acquired Partially Completed Contracts has been completed by Buyer
following the Closing, Buyer shall, as soon as practicable, provide Seller with a complete
accounting of the cost incurred by Buyer in performing such contract, and Buyer shall pay Seller,
or Seller shall pay Buyer, as the case may be, in order to ensure that Buyer and Seller each
receive their appropriate percentage of the total Economic Benefit from each such contract. As
used in this Section 2.21, the term “Economic Benefit” shall mean the total contract amount
less the total of all combined Direct Costs incurred by Seller and Buyer in the performance of such
contract, and shall take into consideration which party (Buyer or Seller) received funds from the
customer in payment of such contract.
2.22 Warranty Matters. Buyer is not assuming any liability to perform warranty work for
equipment or services provided by Seller to customers prior to the Closing Date. Seller shall be
responsible for the cost of supplying warranty service, if any, after the Closing Date related to
revenue recognized by Seller prior to the Closing. Because (i) Seller will not have the necessary
resources to perform such warranty service after the Closing, (ii) performing such warranty service
in a satisfactory manner is necessary in order to maintain a satisfactory customer relationship
between the customer and Buyer following the Closing, (iii) the cost of performing such warranty
service cannot be determined until the warranty service period is completed, and (iv) if Seller was
unable or unwilling to ensure that such warranty service was provided such could result in an
adverse effect on Buyer’s relationship with a customer following the Closing, Buyer and Seller
agree as follows:
(a) After the Closing, Buyer will perform, at Buyer’s sole discretion, the above-referenced
warranty service on behalf of Seller, using commercially reasonable best efforts to perform such
warranty services in a satisfactory and efficient manner.
(b) Buyer shall invoice Seller for all such warranty service, invoicing Seller for such
services at a rate of seventy five percent (75%) of Buyer’s Service Billing Rates for service work
and at a ten percent (10%) markup for parts, inventory, or subcontracted services used in the
performance of such warranty service, and Seller shall pay such invoices within thirty (30) days of
invoice date.
2.23 Buyer Purchase of Required Unreceived Inventory. Buyer shall purchase, as required to
fulfill orders for customers, the products that Seller had on order with Seller’s vendors on the
Closing
Date, but which were not received into Seller’s inventory on the Closing Date, including the
inventory which was on order with Seller’s vendors on the Closing Date listed on Schedule 2.23 to
the Seller Disclosure Letter, but only to the extent necessary to fulfill Buyer’s customers orders,
including but not
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12
limited to the Acquired Contracts and Buyer’s acquired interest in the Acquired
Partially Completed Contracts. The price paid by Buyer to Seller for such inventory shall be equal
to Seller’s actual cost from Seller’s vendor of such inventory, including freight and shipping cost
from Seller’s vendor for such products, and Buyer shall pay Seller for such inventory purchases on
the date that Seller’s invoice is due to Seller’s vendor or finance company for Seller’s purchase
of such inventory from Seller’s vendor.
2.24 Customer Payments. Following the Closing, it is anticipated that certain customers might
possibly pay the incorrect party for invoices of the other party, due to administrative error, or
for other reasons. Buyer and Seller agree to pay to the other party any payments received by one
party that rightfully belong to the other party within five business days of receipt of such
payment.
2.25 Post-Closing Activity of Seller. In order to ensure that Seller meets its financial
obligations to Buyer as provided for in Sections 2.20, 2.21, 2.22, and 2.24 hereof following the
Closing, Seller and Shareholder agree as follows:
(a) Until the earlier of (i) the expiration of the Escrow Period or (ii) the Buyer has issued
written instruction to the Escrow Agent to release the entire balance of the Holdback and all
earnings thereon to Seller as provided for in the Escrow Agreement, Shareholder will be the only
officer, director and employee of Seller;
(b) Until the earlier of (i) the expiration of the Escrow Period or (ii) the Buyer has issued
written instruction to the Escrow Agent to release the entire balance of the Holdback and all
earnings thereon to Seller as provided for in the Escrow Agreement, Shareholder will ensure that
Seller maintains capital sufficient to meet Seller’s obligations to Buyer under Sections 2.20,
2.21, 2.22, and 2.24 hereof;
(c) Until the earlier of (i) the expiration of the Escrow Period or (ii) the Buyer has issued
written instruction to the Escrow Agent to release the entire balance of the Holdback and all
earnings thereon to Seller as provided for in the Escrow Agreement, Seller and Shareholder will not
allow the assets of Seller to become encumbered; and
(d) Shareholder hereby individually and personally guarantees any amounts owed by Seller to
Buyer under Sections 2.20, 2.21, 2.22, and 2.24 hereof.
(e) Shareholder and the Seller hereby acknowledge and agree that Buyer shall have the right
but not the obligation to set-off any amount payable to Buyer by Seller or Shareholder pursuant to
Sections 2.20, 2.21, 2.22, 2.23 or 2.24 against any amount owed or payable by Buyer to Seller or
Shareholder under this Agreement.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES CONCERNING THE TRANSACTION
REPRESENTATIONS AND WARRANTIES CONCERNING THE TRANSACTION
3.1 Representations and Warranties of Seller and Shareholder. Seller and Shareholder jointly
and severally represent and warrant to Buyer that the statements contained in this Section 3.1 are
correct and complete as of the date of this Agreement and will be correct and complete as of the
Closing Date (as though made then and as though the Closing Date were substituted for the date of
this Agreement throughout this Section 3.1 with respect to itself). Seller and Shareholder further
jointly and severally represent and warrant to Buyer as follows:
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13
(a) Organization, Qualification, and Corporate Power. Seller is a corporation duly
organized, validly existing, and in good standing under the laws of the jurisdiction of its
incorporation. Seller is duly authorized to conduct business and is in good standing under the
laws of each jurisdiction where such qualification is required, except where the lack of such
qualification would not have a Material Adverse Effect on the business, financial condition,
operations, results of operations, or future prospects of Seller. Seller has full corporate power
and authority to carry on the businesses in which it is engaged and to own and use the properties
owned and used by it. Schedule 3.1(a) to the Seller Disclosure Letter lists the shareholders,
directors and officers of Seller. For purposes of this Agreement, the term “Material Adverse
Effect” shall mean, with respect to any Person, any change or effect that is materially adverse
to the business, assets, operations, financial condition or results of operations or future
prospects of such Person and its subsidiaries, either separately or when taken as a whole.
(b) Noncontravention. Neither the execution and the delivery of this Agreement, nor
the consummation of the transactions contemplated hereby, will (i) violate any constitution,
statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court to which Seller is subject or any
provision of the charter or bylaws of Seller or (ii) conflict with, result in a breach of,
constitute a default under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract,
lease, license, instrument, or other arrangement to which Seller is a party or by which it is bound
or to which its assets are subject (or result in the imposition of any Security Interest upon any
of its assets), except where the violation, conflict, breach, default, acceleration, termination,
modification, cancellation, failure to give notice, or Security Interest would not have a Material
Adverse Effect on Seller or on the ability of the parties to consummate the transactions
contemplated by this Agreement. Seller does not need to give any notice to, make any filing with,
or obtain any authorization, consent, or approval of any government or governmental agency in order
for the parties to consummate the transactions contemplated by this Agreement, except where the
failure to give notice, to file, or to obtain any authorization, consent, or approval would not
have a Material Adverse Effect on Seller or on the ability of the parties to consummate the
transactions contemplated by this Agreement.
(c) Brokers’ Fees. Seller does not have any liability or obligation to pay any fees or
commissions to any broker, finder, or agent with respect to the transactions contemplated by this
Agreement.
(d) Title to Assets. Except as set forth on Schedule 3.1(d) to the Seller Disclosure
Letter, Seller has good and marketable title to, or a valid leasehold interest in, the Purchased
Assets, free and clear of any Security Interest. Upon the sale, assignment, transfer and
conveyance of the Purchased Assets to Buyer hereunder, there will be vested in Buyer good and
marketable title to all Purchased Assets, free and clear of all Security Interests.
(e) Financial Statements. Attached as Schedule 3.1(e) to the Seller Disclosure Letter
are the balance sheets and statements of income, as of and for the fiscal years ended September 30,
2004 and September 30, 2005, (the “Most Recent Fiscal Year End”) for Seller (collectively
the “Financial Statements”), which Seller represents are the true and correct balance
sheets and statements of income for such periods, and which have been prepared on a consistent
basis.
(f) Events Subsequent to Most Recent Fiscal Year End. Since the Most Recent Fiscal
Year End, Seller has operated consistent with past custom and practice, including with respect to
quantity and frequency and in compliance with all applicable laws and regulations (the
“Ordinary Course of Business”); all of Seller’s financial statements for monthly periods
since the Most Recent Fiscal Year
Asset Purchase Agreement
14
End have been prepared on a consistent basis; and there has not
been any Material Adverse Effect. Without limiting the generality of the foregoing since that date:
(i) no party (including Seller) has accelerated, terminated, made material
modifications to, or canceled any material agreement, contract, lease, or license to
which any of Seller or its Affiliates is a party or by which any of them is bound;
(ii) Seller has not imposed any Security Interest upon any of its assets,
tangible or intangible;
(iii) Seller has not granted any license or sublicense of or Security Interest
in any material rights under or with respect to any Intellectual Property;
(iv) Seller has not experienced any material damage, destruction, or loss
(whether or not covered by insurance) to the Purchased Assets;
(v) Except as set forth on Schedule 3.1(f)(v) to the Seller Disclosure Letter,
Seller has not granted any increase in the base compensation of any of its
directors, officers, and employees outside of the Ordinary Course of Business;
(vi) Seller has not suffered any Material Adverse Effect and no event has
occurred which, so far as reasonably can be foreseen, may result in any such
Material Adverse Effect;
(vi) Seller has not committed to do any of the foregoing.
(g) Undisclosed Liabilities. Seller does not have any material liability, whether
known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued
or unaccrued, whether liquidated or unliquidated, and whether due or to become due, including any
liability for Taxes, except for (i) Liabilities set forth on the face of the Financial Statements
(rather than in any notes thereto) and (ii) Liabilities which have arisen after the Most Recent
Fiscal Year End in the Ordinary Course of Business.
(h) Legal Compliance. Seller has complied with all applicable laws (including rules,
regulations, codes, plans, injunctions, judgments, orders, decrees, rulings, and charges
thereunder) of federal, state, local, and foreign governments (and all agencies thereof), and no
action, suit, proceeding, hearing, investigation, charge, complaint, claim, demand, or notice has
been filed or commenced against it alleging any failure so to comply, except where the failure to
comply would not have a Material Adverse Effect on the Purchased Assets.
(i) Tax Matters.
(i) The Seller and each of its Affiliates have filed all income tax returns
that they were required to file. All such income tax returns were correct and
complete in all material respects. All Taxes owed by Seller (whether or not shown on
any income tax return) have been paid. Seller currently is not the beneficiary of
any extension of time within which to file any income tax return.
(ii) There is no material dispute or claim concerning any liability of Seller
or any of its Affiliates for any Taxes either (A) claimed or raised by any authority
in writing or (B) as to which Seller or any director or officer of Seller has
knowledge.
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15
(iii) Neither Seller nor any of its Affiliates has waived any statute of
limitations in respect of Taxes or agreed to any extension of time with respect to
an income tax assessment or deficiency.
(iv) The Seller has not filed a consent under Section 341(f) of the Internal
Revenue Code concerning collapsible corporations. Seller has not made any material
payments, is not obligated to make any material payments, or is not a party to any
agreement that under certain circumstances could obligate it to make any material
payments that will not be deductible under Section 280G of the Internal Revenue
Code. Seller has never been a United States real property holding corporation within
the meaning of Section 897(c)(2) of the Internal Revenue Code during the applicable
period specified in Section 897(c)(1)(A)(ii) of the Internal Revenue Code. Seller is
not a party to any tax allocation or sharing agreement. Seller (A) has never been a
member of an affiliated group filing a consolidated federal income tax return (other
than a group the common parent of which was Seller) or (B) does not have any
liability for the Taxes of any person (other than Seller) under Reg. §1.1502-6 (or
any similar provision of state, local, or foreign law), as a transferee or
successor, by contract, or otherwise.
(v) The Seller has withheld and paid or has sufficient cash reserved for all
Taxes required to have been withheld and paid in connection with amounts paid or
owing to any employee, independent contractor, creditor, stockholder, or other third
party.
(j) Real Property.
(i) Seller does not own any real property.
(ii) Schedule 3.1(j)(ii) to the Seller Disclosure Letter lists and describes
briefly all real property leased or subleased by Seller. Seller has delivered to
Buyer correct and complete copies of the leases and subleases listed in Schedule 3.1
(j)(ii). With respect to each material lease and sublease listed in Schedule
3.1(j)(ii):
(A) the lease or sublease is legal, valid, binding, enforceable, and in full
force and effect in all material respects;
(B) to the knowledge of Seller, no party to the lease or sublease is in
material breach or default, and no event has occurred which, with notice or lapse of
time, would constitute a material breach or default or permit termination,
modification, or acceleration thereunder;
(C) no party to the lease or sublease has repudiated any material provision
thereof;
(D) there are no material disputes, oral agreements, or forbearance programs in
effect as to the lease or sublease;
(E) Seller has not assigned, transferred, conveyed, mortgaged, deeded in trust,
or encumbered any interest in the leasehold or subleasehold; and
(F) to the knowledge of Seller, all facilities leased or subleased thereunder
have received all approvals of governmental authorities (including material
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16
licenses
and permits) required in connection with the operation thereof, and have been
operated and maintained in accordance with applicable laws, rules, and regulations
in all material respects.
(k) Intellectual Property.
(i) Neither Seller nor any of its Affiliates has interfered with, infringed
upon, misappropriated, or violated any intellectual property rights of third parties
in any material respect, and Seller has never received any charge, complaint, claim,
demand, or notice alleging any such interference, infringement, misappropriation, or
violation (including any claim that Seller or any of its Affiliates must license or
refrain from using any intellectual property rights of any third party). No third
party has interfered with, infringed upon, misappropriated, or violated any
intellectual property rights of Seller in any material respect.
(ii) Schedule 3.1(k)(ii) to the Seller Disclosure Letter identifies each patent
or registration which has been issued to Seller with respect to any of its
intellectual property, identifies each pending patent application or application for
registration which Seller has made with respect to any of its intellectual property,
and identifies and describes each material license, agreement, or other permission
which Seller has granted to any third party with respect to any of its intellectual
property (together with any exceptions). Seller has delivered to Buyer correct and
complete copies of all such patents, registrations, applications, licenses,
agreements, and permissions (as amended to date). Schedule 3.1(k)(ii) also
identifies each domain name, universal resource locator, trademark, service ▇▇▇▇,
trade name, copyright or unregistered trademark used by Seller in connection with
Seller’s Business. With respect to each item of intellectual property required to be
identified in Schedule 3.1(k)(ii):
(A) Seller possesses all right, title, and interest in and to the item, free
and clear of any Security Interest, licenses, or other restrictions;
(B) the item is not subject to any outstanding injunction, judgment, order,
decree, ruling, or charge;
(C) no action, suit, proceeding, hearing, investigation, charge, complaint,
claim, or demand is pending or, to the knowledge of Seller, threatened which
challenges the legality, validity, enforceability, use, or ownership of the item;
and
(D) Seller has not agreed to indemnify any person for or against any
interference, infringement, misappropriation, or other conflict with respect to the
item.
(iii) Schedule 3.1(k)(iii) to the Seller Disclosure Letter identifies each
material item of intellectual property that any third party owns and that Seller
uses pursuant to license, sublicense, agreement, or permission, other than
commercially available shrink-wrap software license agreements for off-the-shelf
software products entered into by Seller in the ordinary course of business. Seller
has delivered to Buyer correct and complete copies of all such licenses,
sublicenses, agreements, and permissions (as amended to date). With respect to each
item of intellectual property required to be identified in Schedule 3.1(k)(iii):
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17
(A) the license, sublicense, agreement, or permission covering the item is
legal, valid, binding, enforceable, and in full force and effect in all material
respects;
(B) no party to the license, sublicense, agreement, or permission is in
material breach or default, and no event has occurred which with notice or lapse of
time would constitute a material breach or default or permit termination,
modification, or acceleration thereunder;
(C) no party to the license, sublicense, agreement, or permission has
repudiated any material provision thereof; and
(D) Seller has not granted any sublicense or similar right with respect to the
license, sublicense, agreement, or permission.
(iv) Seller has secured valid written assignments from all independent
contractors, consultants and employees who contributed to the creation or
development of the Purchased Assets that Seller does not already own by operation of
law.
(v) Seller has taken all necessary and appropriate steps to protect and
preserve the confidentiality of all proprietary Purchased Assets not otherwise
protected by patents, patent applications or copyrights. All use, disclosure or
appropriation of all such Purchased Assets owned by Seller or licensed to Seller by
a third party has been pursuant to the terms of a written agreement between Seller,
on the one hand, and such third party, on the other hand. All use, disclosure or
appropriation of such proprietary Purchased Assets not owned by Seller has been
pursuant to the terms of a written agreement between Seller, on the one hand, and
the owner of such proprietary Purchased Asset, on the other hand, or is otherwise
lawful.
(vi) to the knowledge of Seller, no employee of Seller is obligated under any
contract (including licenses, covenants or commitments of any nature) or other
agreement, or subject to any judgment, decree or order of any court or
administrative agency, that would interfere with the use of such employee’s best
efforts to promote the interests of Seller and no employee of Seller was hired in
tortious interference with an employment arrangement.
(l) Inventory; Contracts.
(i) The Inventory (a) consists of items which are in all material respects free
of any defect, fault, imperfection, impurity or dangerous propensity of any kind,
(b) is of
a quality and quantity usable and salable in the ordinary and usual course of
business and (c) is owned by Seller.
(ii) There are no contracts or other agreements to which Seller is a party that
in any way burdens or otherwise effects any of the Purchased Assets, restricts
Seller’s use of any of the Purchased Assets for their intended purpose or obligates
Seller to pay any other party based on Seller’s ownership and use of the Purchased
Assets.
(iii) Seller has delivered to Buyer all contracts and other agreements to which
Seller is a party and that are included in the Purchased Assets (subject only to the
receipt
Asset Purchase Agreement
18
of all necessary consents to the assignment of such contracts and agreements
to Buyer), including:
(A) any agreement (or group of related agreements) for the lease of real or
personal property to or from any Person providing for lease or rental payments;
(B) all customer contracts related to the Seller’s Business as of the date of
this Agreement;
(C) any agreement or group of related agreements for the sale of supplies,
products, or other personal property, or for the furnishing or receipt of services,
the performance of which will extend over a period of more than one year from the
date of such agreement or from the date of this Agreement;
(D) any agreement concerning a partnership or joint venture;
(E) any agreement or group of related agreements under which Seller created,
incurred, assumed, or guaranteed any indebtedness for borrowed money, or any
capitalized lease obligation, or under which Seller has imposed an encumbrance of
any kind on any of the Purchased Assets, tangible or intangible;
(F) any agreement concerning confidentiality or non-competition with respect to
the Seller’s Business; and
(G) any agreement under which the consequences of a default or termination
could possibly have a Material Adverse Effect on the Seller’s Business.
With respect to each of the contracts and / or agreements mentioned above in this Section
3.1(l), (1) the agreement is legal, valid, binding, enforceable, and in full force and effect; (2)
the agreement will continue to be legal, valid, binding, enforceable, and in full force and effect
on identical terms following the consummation of the transactions contemplated hereby, subject to
the receipt of all necessary consents to the assignment of such agreements to Buyer) and, with
respect to enforcement, except as such enforcement may be limited by bankruptcy, insolvency,
moratorium and other similar laws affecting creditors’ rights generally and to general principles
of equity, (3) Seller is not in breach or default, and no other party is in breach or default,
under the agreement, and no event has occurred which with notice or lapse of time would constitute
a breach or default, or permit termination, modification, or acceleration, under the agreement; and
(4) Seller has not repudiated and no other party has repudiated, any provision of the agreement.
(m) [INTENTIONALLY OMITTED]
(n) Litigation. Schedule 3.1(n) to the Seller Disclosure Letter sets forth each
instance in which Seller (i) is subject to any outstanding injunction, judgment, order, decree,
ruling, or charge or (ii) is a party or, to the knowledge of Seller, is threatened to be made a
party to any action, suit, proceeding, hearing, or investigation of, in, or before any court or
quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or
before any arbitrator.
(o) Employees. To the knowledge of Seller, no executive, key employee, or significant
group of employees plans to terminate employment with Seller, except as contemplated by
consummation of the transaction provided for in this Agreement. Seller is not a party to or bound
by any collective bargaining agreement, nor has it experienced any strike or material grievance,
claim of unfair
Asset Purchase Agreement
19
labor practices, or other collective bargaining dispute within the past three
years. Seller has not committed any material unfair labor practice. Neither Seller nor any of the
directors and officers of Seller has any knowledge of any organizational effort presently being
made or threatened by or on behalf of any labor union with respect to employees of Seller.
Schedule 3.1(o) to the Seller Disclosure Letter sets forth a true and complete list of: (i) the
names, title and current salaries of all officers of Seller; (ii) the wage rates (or wages if
applicable) for each exempt and nonexempt, salaried and hourly employees of Seller; (iii) all
scheduled or contemplated increases in compensation or bonuses; and (iv) all scheduled or
contemplated employee promotions.
(p) Employee Benefits.
(i) Schedule 3.1(p) to the Seller Disclosure Letter lists any plan, program,
arrangement, agreement or commitment which is an employment, consulting,
non-competition or deferred compensation agreement, or an executive compensation,
incentive bonus or other bonus, employee pension, profit sharing, savings,
retirement, stock option, stock purchase, stock appreciation rights, severance pay,
life, health, disability or accident insurance plan, corporate-owned or key-man life
insurance or other employee benefit plan as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”) that Seller
maintains or to which Seller contributes or has any obligation to contribute (each
an “Employee Benefit Plan”).
(A) Each Employee Benefit Plan (and each related trust, insurance contract, or
fund) complies in form and in operation in all material respects with the applicable
requirements of ERISA, the Internal Revenue Code of 1986, as amended (the
“Internal Revenue Code”), and other applicable laws.
(B) All required reports and descriptions (including Form 5500 Annual Reports,
summary annual reports, PBGC-l’s, and summary plan descriptions) have been timely
filed and distributed appropriately with respect to each Employee Benefit Plan. The
requirements of COBRA have been met in all material respects with respect to each
Employee Benefit Plan which is an Employee Welfare Benefit Plan (as defined in ERISA
§3(1)).
(C) All contributions (including all employer contributions and employee salary
reduction contributions) which are due have been paid to each Employee Benefit Plan
which is an Employee Pension Benefit Plan (as defined in ERISA §3(2)) and all
contributions for any period ending on or before the Closing Date which are not yet
due have been paid to each Employee Pension Benefit Plan or accrued in accordance
with the past custom and practice of Seller. All premiums or other payments for all
periods ending on or before the Closing Date have been paid with respect to each
Employee Benefit Plan which is an Employee Welfare Benefit Plan.
(D) Each Employee Benefit Plan which is an Employee Pension Benefit Plan meets
the requirements of a “qualified plan” under Internal Revenue Code §401(a), has
received, within the last two years, a favorable determination letter from the
Internal Revenue Service that it is a “qualified plan,” and Seller is not aware of
any facts or circumstances that could result in the revocation of such determination
letter.
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20
(E) The market value of assets under each Employee Benefit Plan which is an
Employee Pension Benefit Plan (other than any Multiemployer Plan, as defined in
ERISA §3 (37)) equals or exceeds the present value of all vested and nonvested
liabilities thereunder determined in accordance with the Pension Benefit Guaranty
Corporation (“PBGC”) methods, factors, and assumptions applicable to an
Employee Pension Benefit Plan terminating on the date for determination.
(F) Seller has delivered to Buyer correct and complete copies of the plan
documents and summary plan descriptions, the most recent determination letter
received from the Internal Revenue Service, the most recent Form 5500 Annual Report,
and all related trust agreements, insurance contracts, and other funding agreements
which implement each Employee Benefit Plan.
(ii) With respect to each Employee Benefit Plan that Seller and any ERISA
affiliate maintains or ever has maintained or to which any of them contributes, ever
has contributed, or ever has been required to contribute:
(A) No Employee Benefit Plan which is an Employee Pension Benefit Plan (other
than any Multiemployer Plan) has been completely or partially terminated or been the
subject of a reportable event as to which notices would be required to be filed with
the PBGC. No proceeding by the PBGC to terminate any Employee Pension Benefit Plan
(other than any Multiemployer Plan) has been instituted or threatened.
(B) There have been no prohibited transactions with respect to any Employee
Benefit Plan. No fiduciary has any Liability for material breach of fiduciary duty
or any other material failure to act or comply in connection with the administration
or investment of the assets of any Employee Benefit Plan. No action, suit,
proceeding, hearing, or investigation with respect to the administration or the
investment of the assets of any Employee Benefit Plan (other than routine claims for
benefits) is pending or threatened.
(C) Seller has not incurred any Liability to the PBGC (other than PBGC premium
payments) or otherwise under Title IV of ERISA (including any withdrawal liability
as defined in ERISA §4201) or under the Internal Revenue Code with respect to any
Employee Benefit Plan which is an Employee Pension Benefit Plan.
(iii) Seller does not contribute to, ever has never contributed to, or never
ever has been required to contribute to any multiemployer plan or has any Liability,
including any withdrawal liability (as defined in ERISA §4201), under any
Multiemployer Plan.
(iv) Except as otherwise disclosed on Schedule 3.1(p) to the Seller Disclosure
Letter, Seller does not maintain and has never maintained or contributed, or ever
has been required to contribute to any Employee Welfare Benefit Plan providing
medical, health, or life insurance or other welfare-type benefits for current or
future retired or terminated employees, their spouses, or their dependents (other
than in accordance with COBRA).
(q) Guaranties. Seller is not a guarantor of, nor is Seller otherwise responsible
for, any Liability of any other Person.
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21
(r) Authorization of Transaction. Seller has full power and authority to execute and
deliver this Agreement and to perform its obligations hereunder. Shareholder has full legal
capacity to enter into, execute and deliver this Agreement, to fully perform his obligations
hereunder. This Agreement constitutes the valid and legally binding obligation of Seller and
Shareholder, enforceable in accordance with its terms and conditions, except (i) as the same may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium, or other laws of general
application now or hereafter in effect relating to the rights and remedies of creditors, and (ii)
that the availability of the remedy of specific performance or of injunctive or other forms of
equitable relief may be subject to equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought. Neither Seller nor any shareholder needs to give any
notice to, make any filing with, or obtain any authorization, consent, or approval of any
government or governmental agency in order to consummate the transactions contemplated by this
Agreement.
(s) Tangible Assets. Except as set forth in Schedule 3.1(s) to the Seller Disclosure
Letter, the Purchased Assets are free from defects (patent and latent), have been maintained in
accordance with normal industry practice, are in good operating condition and repair (subject to
normal wear and tear), and are suitable for the purposes for which it presently is used and
presently is proposed to be used. The Personal Property items listed on Schedule 1.1(a) to the
Seller Disclosure Letter are substantially all of the tangible assets that are being used by Seller
to operate the Seller’s Business.
(t) Environmental Matters.
(i) Except as set forth in Schedule 3.1(t) to the Seller Disclosure Letter or
in compliance with applicable Environmental Laws, (A) Seller has never generated,
transported, used, stored, treated, disposed of or managed any Hazardous Waste (as
defined below); (B) while Seller has leased the real property listed on Schedule
3.1(j)(ii) to the Seller Disclosure Letter, no Hazardous Material (as defined below)
has ever been spilled, released or disposed of at the real property listed on
Schedule 3.1(j)(ii), or has ever been located in the soil or groundwater at any such
property; (C) while Seller has leased the real property listed on Schedule
3.1(j)(ii), no Hazardous Material has ever been transported from any real property
listed on Schedule 3.1(j)(ii) for treatment, storage or disposal at any other place;
(D) Seller does not presently own, operate, lease or use any
site on which underground storage tanks are located; and (E) while Seller has leased
the real property listed on Schedule 3.1(j)(ii), no Security Interest has ever been
imposed by any governmental agency on any of the Purchased Assets as a result of the
violations of Environmental Laws (as defined below).
(ii) Except as set forth in Schedule 3.1(t) to the Seller Disclosure Letter,
(A) Seller has no material liability under, nor has it ever violated, any
Environmental Law (as defined below) with respect to any property listed on Schedule
3.1(j)(ii) to the Seller Disclosure Letter; (B) each property listed on Schedule
3.1(j)(ii) and any facilities and operations thereon, are presently in compliance
with all applicable Environmental Laws; (C) Seller has never entered into or been
subject to any judgment, consent decree, compliance order or administrative order
with respect to any environmental or health and safety matter or received any
request for information, notice, demand letter, administrative inquiry or formal or
informal complaint or claim with respect to any environmental or health and safety
matter or the enforcement of any Environmental Law; and (D) Seller has no reason to
believe that any of the items enumerated in clause (C) of this Subsection will be
forthcoming.
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22
(iii) Except as set forth in Schedule 3.1(t) to the Seller Disclosure Letter,
to the knowledge of Seller, no property listed on Schedule 3.1(j)(ii) to the Seller
Disclosure Letter contains any asbestos or asbestos-containing material, any
polychlorinated biphenyls (“PCB”s) or equipment containing PCBs, or any urea
formaldehyde foam insulation.
(iv) Seller shall provide at or prior to the Closing to Seller copies of all
documents, records, and information available to it concerning any environmental or
health and safety matter relevant to Seller regarding any of the property listed on
Schedule 3.1(j)(ii) to the Seller Disclosure Letter, whether generated by Seller or
others, including, without limitation, environmental audits, environmental risk
assessments, site assessments, documentation regarding off-site disposal of
Hazardous Materials, spill control plans and reports, correspondence, permits,
licenses, approvals, consents and other authorizations related to environmental or
health and safety matters issued by any governmental agency.
(v) For purposes of this Section 3.1(t), (i) “Hazardous Material” shall
mean and include any hazardous waste, hazardous material, hazardous substance,
petroleum product, oil, toxic substance, pollutant, contaminant or other substance
which may pose a threat to the environment or to human health or safety, as defined
or regulated under any Environmental Law; (ii) “Hazardous Waste” shall mean
and include any hazardous waste as defined or regulated under any Environmental Law;
and (iii) “Environmental Law” shall mean any environmental or health and
safety-related law, regulation, rule, ordinance or bylaw at the foreign, federal,
state or local level, whether existing as of the date hereof, previously enforced or
subsequently enacted.
(u) Consents. Except as set forth on Schedule 3.1(u) to the Seller Disclosure Letter,
no consent of any third party is required to be obtained by Seller for the execution, delivery and
performance of this Agreement, the Assignment, ▇▇▇▇ of Sale and Assumption Agreement, dated
February 3, 2006, between Buyer and Seller, the Escrow Agreement, dated February 3, 2006, among
Buyer, Seller and the Escrow Agent and the Consent and Release of Liens Letter Agreement, dated
February 3, 2006,
between the Seller and GE Commercial Distribution Finance Corporation (collectively, the
“Transaction Documents”) or the consummation of the transactions contemplated hereby or thereby.
(v) Disclosure. This Agreement and the schedules, attachments, written statements,
documents, certificates, or other items prepared or supplied to Buyer by or on behalf of Seller
with respect to the transactions contemplated in this Agreement are correct, complete and
authentic, and all contracts and other agreements or instruments included thereunder are valid,
subsisting and binding on the parties thereto in accordance with their terms. Neither this
Agreement, nor any other Transaction Document nor any of the schedules, attachments, written
statements, documents, certificates, or other items prepared or supplied to Buyer by or on behalf
of Seller with respect to the transactions contemplated in this Agreement contain any untrue
statement of a material fact or omit a material fact necessary to make each statement contained
herein or therein not misleading. Neither Seller nor any responsible officer or manager or
Shareholder has intentionally concealed any fact known by such person to have a Material Adverse
Effect. There is no fact known by Seller or Shareholder not disclosed in writing to Buyer by
Seller or Shareholder that materially and adversely affects, or so far as may reasonably be
foreseen by the Seller could materially and adversely affect, the Purchased Assets, the condition
of their commercialization or the ability of Seller or Shareholder to perform the transactions
contemplated by this Agreement.
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23
(w) Investor Qualifications.
(i) Seller understands that any shares of Buyer Common Stock to be received in
partial payment of the purchase price are characterized as “restricted securities”
under the federal securities laws inasmuch as they are being received from Buyer in
a transaction not involving a public offering, are being offered and sold without
registration under the Securities Act of 1933, as amended (the “Securities
Act”), in a private placement that is exempt from the registration provisions of
the Securities Act and that under such laws and applicable regulations such
securities may be resold without registration under the Securities Act only in
limited circumstances. Seller understands that it must bear the economic risk of
the acquisition of the Buyer Common Stock made in connection herewith for an
indefinite period of time because, among other reasons, the shares of Buyer Common
Stock issued to Seller hereunder will not have been registered under the Securities
Act or under the securities laws of certain states and, therefore, cannot be resold,
assigned or otherwise disposed of unless they are subsequently registered under the
Securities Act and under the applicable securities laws of such states or an
exemption from such registration is available. Seller further understands that the
certificate representing the shares of Buyer Common Stock shall bear a legend in
substantially the following form:
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR UNDER ANY STATE
SECURITIES LAWS, AND MAY NOT BE SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED
IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN EXEMPTION
FROM REGISTRATION THEREUNDER AND COMPLIANCE WITH APPLICABLE STATE SECURITIES LAWS”;
(ii) Seller can bear the economic risk of its investment in the Buyer Common
Stock and has such knowledge and experience in financial and business matters that
it is capable of evaluating the merits and the risks of the investment in Buyer.
Seller understands that the per share value of the Buyer Common Stock may fluctuate
from time to time and that the per share value of the Buyer Common Stock at the time
of Closing or
at the time of issuance to Seller is not a representation by Buyer that Seller could
now or at any time in the future receive such per share amount in connection with
any transaction involving the Buyer Common Stock. Seller has been furnished with
all materials relating to the business, finances and operations of Buyer which have
been requested, including, without limitation all certificates, instruments,
agreements and other documents defining the rights, limitations and preferences of
the Buyer Common Stock. Seller has conducted its own investigation of Buyer and is
not relying on any representations or warranties of Buyer other than those expressly
set forth herein. Seller understands that Buyer is under no obligation to register
the Buyer Common Stock on Seller’s behalf;
(iii) Seller is acquiring the Buyer Common Stock for its own account with the
present intention of holding such securities for purposes of investment, and that it
has no intention of selling such securities in a public distribution in violation of
the federal securities laws or any applicable state securities laws; and
(iv) Seller is an “accredited investor” within the meaning of the Securities
and Exchange Commission’s Rule 501 of Regulation D under the Securities Act, as
presently in effect.
Asset Purchase Agreement
24
3.2 Representations and Warranties of Buyer. Buyer represents and warrants to Seller that the
statements contained in this Section 3.2 are correct and complete as of the date of this Agreement
and will be correct and complete as of the Closing Date (as though made then and as though the
Closing Date were substituted for the date of this Agreement throughout this Section 3.2), except
as set forth in Schedule 3.2 to the Seller Disclosure Letter.
(a) Organization of Buyer. Buyer is a corporation duly organized, validly existing,
and in good standing under the laws of the jurisdiction of its formation.
(b) Authorization of Transaction. Buyer has full power and authority (including full
corporate power and authority) to execute and deliver this Agreement and to perform its obligations
hereunder. The shares of Buyer Common Stock making up the Stock Consideration when issued in
accordance with the terms and conditions of this Agreement will be validly issued, fully paid and
non-assessable. This Agreement constitutes the valid and legally binding obligation of Buyer,
enforceable in against Buyer accordance with its terms and conditions, except as enforcement may be
limited by (i) applicable bankruptcy, insolvency, reorganization or other laws of general
application relating to or affecting the rights of creditors generally and (ii) the effect of rules
of law governing the availability of equitable remedies. Buyer need not give any notice to, make
any filing with, or obtain any authorization, consent, or approval of any government or
governmental agency in order to consummate the transactions contemplated by this Agreement.
(c) Noncontravention. Neither the execution and the delivery of this Agreement, nor
the consummation of the transactions contemplated hereby, will (i) violate any constitution,
statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court to which Buyer is subject, or any
provision of Buyer’s charter or bylaws or (ii) conflict with, result in a breach of, constitute a
default under, result in the acceleration of, create in any party the right to accelerate,
terminate, modify, or cancel, or require any notice under any agreement, contract, lease, license,
instrument, or other arrangement to which Buyer is a party or by which it is bound or to which any
of its assets is subject.
(d) Brokers’ Fees. Buyer has no liability or obligation to pay any fees or commissions
to any broker, finder, or agent with respect to the transactions contemplated by this Agreement for
which Seller could become liable or obligated.
(e) No Other Representations or Warranties. Buyer hereby acknowledges that with the
exception of Seller’s and Shareholder’s representations and warranties set forth in the Transaction
Documents, Seller and Shareholder make no other representations or warranties, express or implied,
to Seller with respect to the Purchased Assets.
ARTICLE IV.
COVENANTS OF SELLER AND THE SHAREHOLDERS
COVENANTS OF SELLER AND THE SHAREHOLDERS
Seller and Shareholder jointly and severally covenant and agree with Buyer as follows:
4.1 Consummation of Agreement. Seller shall use commercially reasonable efforts to perform
and fulfill all conditions and obligations on its part to be performed and fulfilled under this
Agreement, to the end that the transactions contemplated by this Agreement shall be fully carried
out.
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25
4.2 Satisfaction of Conditions. Seller will use reasonable efforts to obtain as promptly as
practicable the satisfaction of the conditions to Closing set forth in Article VI and any necessary
consents or waivers under or amendments to leases and other contracts by which Seller is bound.
4.3 Notices and Consents. Seller will give any notices to, make any filings with, and use its
reasonable best efforts to obtain any authorizations, consents, and approvals of governments and
governmental agencies.
4.4 Regular Course of Business. Between the date of this Agreement and the Closing
Shareholder will not cause or permit Seller to engage in any practice, take any action, or enter
into any transaction outside the Ordinary Course of Business. Further, Shareholder will cause
Seller to operate Seller’s Business in accordance with the reasonable judgment of its management
diligently and in good faith, consistent with past management practices, and continue to use its
reasonable efforts to keep available the services of present officers and employees (other than
planned retirements) and to preserve its present relationships with persons having business
dealings with it. Shareholder will not cause or permit Seller to take any actions which would
require a supplement or amendment to the items required to be disclosed pursuant to Section 3.1.
Further, between the date of this Agreement and the Closing Date, Seller will:
(a) communicate regularly with Buyer and keep Buyer closely advised of any material
developments relating to Seller and the Purchased Assets;
(b) pay all of its trade accounts payable as they become due in the Ordinary Course of its
Business;
(c) maintain its books and records in the usual, regular and ordinary manner, on a basis
consistent with prior periods, and will comply with all laws applicable to each;
(d) keep and maintain all approvals, authorizations, consents, licenses, domain name
registrations, operating authorities, certificates of public convenience, orders and other permits
in full force and effect, continue to operate Seller’s Business pursuant to such approvals,
authorizations, consents, licenses, operating authorities, certificates of public convenience,
orders and other permits and
take all steps necessary to meet requirements on pending applications for approvals,
authorizations, consents, licenses, operating authorities, certificates of public convenience,
orders and permits; and
(e) not increase the discounts or other sales promotions it offers to customers over the
discounts and promotions offered by Seller during the 3 month period immediately preceding the date
of this Agreement.
4.5 Preservation of Business. Seller agrees that the Purchased Assets will be used,
preserved, and maintained, as far as practicable, in the Ordinary Course of Business, to the same
extent and in the same condition as said assets, property, and rights are used, preserved and
maintained on the date of this Agreement, and no unusual or novel methods of purchase, sale,
management, or operation of said Purchased Assets or Seller’s Business will be made or instituted.
Without the prior consent of Buyer, Seller will not encumber any of the Purchased Assets or make
any commitments relating to such assets, property, or business, except in the Ordinary Course of
Business.
4.6 Insurance. Seller will keep or cause to be kept in effect and undiminished the insurance
now in effect on its various properties and assets, and will purchase such additional insurance, at
Buyer’s cost, as Buyer may request.
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26
4.7 Employees. Seller will not grant to any employee of Seller any promotion, any increase in
compensation, or any bonus or other award other than promotions, increases, or awards that are
regularly scheduled in the Ordinary Course of Business or contemplated on the date of this
Agreement or that are, in the reasonable judgment of management of Seller, in its best interest.
4.8 No Violations. Seller will comply in all material respects with all statutes, laws,
ordinances, rules, and regulations applicable to Seller’s Business.
4.9 Public Announcements. Shareholder will not and will cause Seller not to issue any press
release or other announcement to the employees, customers, or suppliers of Seller related to this
Agreement or this purchase without the approval of Buyer, unless required by law, in which case
Buyer and Seller will consult with each other regarding the announcement. Buyer will provide
written approval of communications to Seller’s employees, customers or suppliers necessary to
affect the transaction contemplated by this Agreement.
4.10 Company Examinations and Investigations. Prior to the Closing Date, Seller agrees that
Buyer shall be entitled, through its employees and representatives, including, without limitation,
its attorneys and accountants, to make such investigation of Seller and such examination of the
books, records and financial condition of Seller as Buyer reasonably desires. Any such
investigation and examination shall be conducted at reasonable times and under reasonable
circumstances and Seller shall cooperate fully therein. In order that Buyer may have full
opportunity to make such business, accounting and legal review, examination or investigation as it
may wish of the business and affairs of Seller, Seller shall furnish the representatives of Buyer
during such period with all such information concerning the affairs of Seller as such
representatives may reasonably request and cause its officers, employees, consultants, agents,
accountants and attorneys to cooperate fully with such representatives in connection with such
review and examination and to make full disclosure to Buyer of all material facts affecting the
financial condition and business operation of Seller.
4.11 Continued Effectiveness of Representations and Warranties of Seller. From the date
hereof through the Closing Date, Seller shall conduct its Seller’s Business in a commercially
reasonable manner and in such a manner so that the representations and warranties contained in
Section 3.1 shall continue to be true and correct on and as of the Closing Date as if made on and
as of the Closing Date.
4.12 Supplements to Schedules. From time to time prior to the Closing, Seller will promptly
supplement or amend the disclosure schedules with respect to any matter hereafter arising that, if
existing or occurring at the date of this Agreement, would have been required to be set forth or
described in any schedule and will promptly notify Buyer of any breach by Seller that it discovers
of any representation, warranty, or covenant contained in this Agreement. No supplement or
amendment of any Schedule made pursuant to this section will be deemed to cure any breach of any
representation of or warranty made in this Agreement unless Buyer specifically and reasonably
agrees thereto in writing.
4.13 No Solicitation. Until the Closing or termination pursuant to Article VIII of this
Agreement, neither Seller nor any of its directors, officers, employees, or agents shall, directly
or indirectly, encourage, solicit, initiate, or enter into any discussions or negotiations
concerning any disposition of any of the capital stock or all or substantially all of the assets of
Seller (other than pursuant to this Agreement), or any proposal therefor, or furnish or cause to be
furnished any information concerning Seller to any party in connection with any transaction
involving the acquisition of the capital stock or the Purchased Assets of Seller by any person
other than Buyer.
4.14 Loss or Threatened Loss of Customer or Supplier. Other than as set forth on Schedule
4.14, prior to the Closing, Seller shall promptly notify Buyer in the event of a loss or threatened
loss of
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27
any material supplier, customer or affiliate of Seller, and shall cause employees of Seller
to be made available to call upon such customer, supplier or affiliate, together with Buyer to
assist Buyer in regaining or retaining such customer, supplier or affiliate.
4.15 Notice of Developments. Seller will give prompt written notice to Buyer of any material
development causing a breach of any of its own representations and warranties in Section 3.1 above.
ARTICLE V.
COVENANTS OF BUYER
COVENANTS OF BUYER
Buyer covenants and agrees with Seller as follows:
5.1 Efforts of Buyer. Buyer shall use commercially reasonable efforts to perform and fulfill
all conditions and obligations on its part to be performed and fulfilled under this Agreement, to
the end that the transactions contemplated by this Agreement shall be fully carried out.
5.2 Public Announcements. Subject to applicable law, at all times Buyer will promptly advise,
and obtain the approval of, Seller before issuing or permitting any of Buyer’s directors, officers,
employees, representatives, agents or subsidiaries to issue any press release with respect to this
Agreement or the transactions contemplated hereby.
5.3 Notices and Consents. Buyer will give any notices to, make any filings with, and use its
reasonable best efforts to obtain any authorizations, consents, and approvals of governments and
governmental agencies.
5.4 Notice of Developments. Buyer will give prompt written notice to Seller of any material
development causing a breach of any of its own representations and warranties in Section 3.2 above.
ARTICLE VI.
CONDITIONS TO BUYER’S OBLIGATIONS
CONDITIONS TO BUYER’S OBLIGATIONS
Each and every obligation of Buyer under this Agreement is subject to the satisfaction, at or
before the Closing, of each of the following conditions:
6.1 Representations and Warranties; Performance. Each of the representations and warranties
made by Seller and Shareholder herein will be true and correct in all material respects as of the
Closing with the same effect as though made at that time except for changes specifically
contemplated, permitted, or required by this Agreement; Seller will have performed and complied
with all agreements, covenants, and conditions required by this Agreement to be performed and
complied with by it prior to the Closing; and Buyer will have received, at the Closing, a
certificate of the Chief Executive Officer of Seller stating that each of the representations and
warranties made by Seller herein is true and correct in all material respects as of the Closing
except for changes contemplated, permitted, or required by this Agreement and that Seller has
performed and complied with all agreements, covenants, and conditions required by this Agreement to
be performed and complied with by it prior to the Closing. For the purposes of this section and
determining whether a provision has been breached in a material respect, any representation or
warranty of a party that is qualified by a materiality standard shall be read without regard to any
such materiality qualification as if such qualification were not contained herein.
6.2 Litigation. No material action, suit, or proceeding before any court, governmental or
regulatory authority will have been commenced and be continuing, and no investigation by any
governmental or regulatory authority will have been commenced and be continuing, and no action,
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investigation, suit, or proceeding will be threatened at the time of Closing, against Seller,
Shareholder, Buyer or any of their Affiliates, associates, officers, managers or directors, seeking
to restrain, prevent, or change the transactions contemplated hereby, questioning the validity or
legality of the transactions contemplated hereby, or seeking damages in connection with the
transactions contemplated hereby.
6.3 Absence of Material Change. From the date of this Agreement to the Closing, there shall
not have occurred any event, change, effect, act, discovery, or occurrence (or any combination of
the forgoing) (whether or not referred to or described herein or in any Exhibit or Schedule hereto)
that individually or in the aggregate would have, or would reasonably be expected to have, a
Material Adverse Effect.
6.4 Company Action. Seller will have furnished to Buyer a copy, certified by an officer of
Seller, of the resolutions of the Board of Directors of Seller and the shareholders of Seller
authorizing the execution, delivery and performance of this Agreement.
6.5 Consents. Seller shall have made all filings with and notifications of governmental
authorities and regulatory agencies required to be made by it in connection with the execution and
delivery of this Agreement, the performance of the transactions contemplated hereby and the
continued operation of Seller’s business by Buyer subsequent to the Closing, and Buyer shall have
received such governmental consents or permits required to use and own the Purchased Assets, if
any.
6.6 Release of Liens. All Security Interests on the Purchased Assets shall have been
terminated and released, and Buyer shall have received releases and such other documents evidencing
such transactions.
6.7 Assignment, ▇▇▇▇ of Sale and Assumption Agreement. Seller shall have executed and
delivered an Assignment, ▇▇▇▇ of Sale, and Assumption Agreement in substantially the same form as
the agreement attached hereto as Exhibit “A.”
6.8 Employment Agreements. Buyer (or Buyer’s affiliate) and Shareholder and other Key
Employees, including, but not limited to, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, and each other employee of Seller that
has been
extended an offer of employment with Buyer or Buyer’s affiliate shall each have executed and
delivered Buyer’s or Buyer’s affiliate’s form of Employment Agreement.
6.9 Confidentiality, Development and Non-Interference Agreement. Buyer (or Buyer’s affiliate)
and Shareholder and other Key Employees and each other employee of Seller that has been extended an
offer of employment with Buyer or Buyer’s affiliate shall have executed and delivered Buyer’s or
Buyer’s affiliate’s form of Confidentiality, Development and Non-Interference Agreement.
6.10 Escrow Agreement. Seller shall have executed and delivered to Buyer the Escrow
Agreement;
6.11 Legal Opinion of Seller’s Counsel. Buyer shall have received an opinion of Seller’s
legal counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Hair & ▇▇▇▇▇▇▇ LLP, in a form acceptable to Buyer.
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ARTICLE VII.
CONDITIONS TO SELLER’S OBLIGATIONS
CONDITIONS TO SELLER’S OBLIGATIONS
Each and every obligation of Seller under this Agreement is subject to the satisfaction, at or
before the Closing, of each of the following conditions:
7.1 Representations and Warranties; Performance. Each of the representations and warranties
made by Buyer herein will be true and correct in all material respects as of the Closing with the
same effect as though made at that time except for changes contemplated, permitted, or required by
this Agreement; Buyer will have performed and complied with all agreements, covenants, and
conditions required by this Agreement to be performed and complied with by it prior to the Closing;
and Seller will have received, at the Closing, a certificate of Buyer, stating that each of the
representations and warranties made by Buyer herein is true and correct in all material respects as
of the Closing except for changes contemplated, permitted, or required by this Agreement and that
Buyer has performed and complied with all agreements, covenants, and conditions required by this
Agreement to be performed and complied with by it prior to the Closing. For the purposes of this
section and determining whether a provision has been breached in a material respect, any
representation or warranty of a party that is qualified by a materiality standard shall be read
without regard to any such materiality qualification as if such qualification were not contained
herein.
7.2 Corporate Action. Buyer will have furnished to Seller a copy, certified by an officer of
Buyer, of the resolutions of the Board of Directors of Buyer authorizing the execution, delivery,
and performance of this Agreement.
7.3 Absence of Material Change. From the date of this Agreement to the Closing, there has not
occurred any event, change, effect, act, discovery, or occurrence (or any combination of the
forgoing) (whether or not referred to or described herein or in any Exhibit or Schedule hereto)
that individually or in the aggregate would have, or would reasonably be expected to have, a
Material Adverse Effect.
7.4 Assignment, ▇▇▇▇ of Sale and Assumption Agreement. Buyer shall have executed and
delivered a Assignment, ▇▇▇▇ of Sale and Assumption Agreement in substantially the same form as the
agreement attached hereto as Exhibit “A.”
7.5 Purchase Price. Buyer shall have tendered delivery of the purchase price set forth in
Section 1.6 to Seller.
7.6 Escrow Agreement. Buyer shall have executed and delivered the Escrow Agreement.
7.7 Litigation. No material action, suit, or proceeding before any court, governmental
or regulatory authority will have been commenced and be continuing, and no investigation by any
governmental or regulatory authority will have been commenced and be continuing, and no action,
investigation, suit, or proceeding will be threatened at the time of Closing, against Buyer or any
of its Affiliates, associates, officers, managers or directors, seeking to restrain, prevent, or
change the transactions contemplated hereby, questioning the validity or legality of the
transactions contemplated hereby, or seeking damages in connection with the transactions
contemplated hereby.
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ARTICLE VIII.
TERMINATION
TERMINATION
8.1 Termination By Buyer. Buyer may terminate this Agreement by giving written notice to
Seller at any time prior to the Closing (a) in the event Seller or Shareholder has breached any
representation, warranty, or covenant contained in this Agreement in any material respect, Buyer
has notified Seller and Shareholder of the breach, and the breach has continued without cure for a
period of 15 days after the notice of breach or is otherwise not reasonably susceptible to cure or
(b) if the Closing shall not have occurred on or before June 10, 2006 by reason of the failure of
any condition precedent under Article VI hereof (unless the failure results primarily from Buyer
breaching any representation, warranty, or covenant contained in this Agreement). For the purposes
of this section and determining whether a provision has been breached in a material respect, any
representation or warranty of a party that is qualified by a materiality standard shall be read
without regard to any such materiality qualification as if such qualification were not contained
herein.
8.2 Termination By Seller. Seller may terminate this Agreement by giving written notice to
Buyer at any time prior to the Closing (a) in the event Buyer has breached any representation,
warranty, or covenant contained in this Agreement in any material respect, Seller has notified
Buyer of the breach, and the breach has continued without cure for a period of 15 days after the
notice of breach or is otherwise not reasonably susceptible to cure or (b) if the Closing shall not
have occurred on or before June 10, 2006 by reason of the failure of any condition precedent under
Article VII hereof (unless the failure results primarily from Seller breaching any representation,
warranty, or covenant contained in this Agreement). For the purposes of this section and
determining whether a representation or warranty has been breached in a material respect, any
representation or warranty of a party that is qualified by a materiality standard shall be read
without regard to any such materiality qualification as if such qualification were not contained
herein.
8.3 Termination By Mutual Consent. Anything herein or elsewhere to the contrary
notwithstanding, this Agreement may be terminated and abandoned at any time prior to the Closing
without further obligation or liability on the part of any party by the mutual written consent of
Buyer and Seller.
8.4 Effect of Termination. If this Agreement terminates pursuant to any provision of this
Article VIII and the transactions contemplated hereunder are not consummated, this Agreement shall
be null and void and have no further force or effect, except that any such termination shall be
without prejudice to the rights of any party on account of the nonsatisfaction of the conditions
set forth in Articles
VI and VII resulting from the breach or violation of the representations, warranties, covenants or
agreements of another party under this Agreement.
ARTICLE IX.
INDEMNIFICATION
INDEMNIFICATION
9.1 Survival. Each covenant or agreement in this Agreement shall survive the Closing without
limitation as to time until fully performed in accordance with its terms and each representation
and warranty in this Agreement, any Transaction Document or in the Schedules or Exhibits shall
survive the Closing until the twelve-month anniversary of the Closing Date (the “Survival
Date”). Notwithstanding the foregoing, the following representations and warranties
(collectively, the “Specified Representations”) shall survive the Closing as follows: (a)
the representations and warranties contained in Sections 3.1(a), (b), (c), (d), (g) and (r), and
3.2 shall survive the Closing without limitation as to time, and (b) the representations and
warranties contained in Sections 3.1(i), 3.1(p) and 3.1(t) shall survive the
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Closing until 30 days
after the expiration of the statutes of limitations, if any, applicable to the matters addressed
therein.
9.2 Indemnification by Seller and Shareholder. From and after the date hereof, Seller and
Shareholder agree, jointly and severally, to indemnify fully, hold harmless, protect and defend
Buyer and its Affiliates, and their respective directors, officers, agents and employees,
successors and assigns from and against:
(a) any and all Losses (as defined below) incurred by any of them arising out of, relating to
or based upon any inaccuracy in, or breach of, any of the representations or warranties of any of
Seller or Shareholder contained in this Agreement, any Transaction Document or in the Schedules or
Exhibits hereto or thereto;
(b) any and all Losses incurred by any of them arising out of, relating to or based upon any
failure to perform, or other breach of, any of the covenants or agreements of any of Seller or
Shareholder contained in or incorporated into this Agreement, any Transaction Document or in the
Schedules or Exhibits hereto or thereto;
(c) any and all Losses incurred by any of them arising out of, relating to or based upon any
of Seller’s assets that are not Purchased Assets or any of the Retained Liabilities;
(d) any and all Losses incurred by any of them arising out of, relating to or based upon
Seller’s ownership or use of the Purchased Assets prior to the Closing, including any Liability for
any Taxes;
(e) any and all Losses incurred by any of them arising out of, relating to or based upon the
operation of Seller’s business prior to or after the Closing; and
(f) any and all Losses incurred by any of them arising out of, relating to or based upon any
claims made for workers’ compensation benefits or under any Employee Benefit Plan due with respect
to any event occurring or circumstance existing prior to the Closing.
The right of Buyer and its Affiliates (and their respective directors, officers, agents and
employees, successors and assigns) to be indemnified hereunder for any Loss shall not be limited or
affected by any investigation conducted or notice or knowledge obtained by or on behalf of any such
Persons. “Losses” shall mean any and all losses, costs, claims, damages, Taxes,
Liabilities, obligations, judgments, settlements, awards, demands, offsets, reasonable
out-of-pocket costs, expenses and attorneys’ fees
(including any such reasonable costs, expenses and attorneys’ fees incurred in enforcing a party’s
right to indemnification against any indemnifying party or with respect to any appeal) and
penalties and interest, if any.
9.3 Indemnification by Buyer. From and after the date hereof, Buyer agrees to indemnify
fully, hold harmless, protect and defend Seller and Shareholder from and against any and all Losses
incurred by any of them arising out of, relating to or based upon (a) any inaccuracy in, or breach
of, any of the representations or warranties of Buyer contained in this Agreement, any Transaction
Document or in the Schedules or Exhibits hereto or thereto; (b) any failure to perform, or other
breach of, any of the covenants or agreements of Buyer contained in this Agreement, any Transaction
Document or in the Schedules or Exhibits hereto or thereto; (c) Buyer’s ownership of the Purchased
Assets after the Closing Date; and (d) the operation of Buyer’s business after the Closing. The
right of Seller to be indemnified hereunder shall not be limited or affected by any investigation
conducted or notice or knowledge obtained by or on behalf of any such Persons.
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9.4 Procedure for Indemnification for Third Party Claims.
(a) Promptly after receipt by an indemnified party under Sections 9.2 and 9.3 of notice of the
commencement of any proceeding against it, such indemnified party will, if a claim is to be made
against an indemnifying party under such Section, give notice to the indemnifying party of the
commencement of such claim, but the failure to notify the indemnifying party will not relieve the
indemnifying party of any Liability that it may have to any indemnified party, except to the extent
that the indemnifying party demonstrates that the defense of such action is prejudiced by the
indemnifying party’s failure to give such notice.
(b) If any proceeding referred to in Section 9.4(a) is brought against an indemnified party
and it gives notice to the indemnifying party of the commencement of such proceeding, the
indemnifying party will be entitled to participate in such proceeding and, to the extent that it
wishes (unless (i) the indemnifying party is also a party to such proceeding and the indemnified
party determines in good faith that joint representation would be inappropriate, or (ii) the
indemnifying party fails to provide reasonable assurance to the indemnified party of its financial
capacity to defend such proceeding and provide indemnification with respect to such proceeding), to
assume the defense of such claim with counsel reasonably satisfactory to the indemnified party and,
after notice from the indemnifying party to the indemnified party of its election to assume the
defense of such proceeding, the indemnifying party will not, as long as it diligently conducts such
defense, be liable to the indemnified party under this Article IX for any fees of other counsel or
any other expenses with respect to the defense of such proceeding, in each case subsequently
incurred by the indemnified party in connection with the defense of such proceeding, other than
reasonable costs of investigation. If the indemnifying party assumes the defense of a proceeding
(as opposed to participating in the defense as provided above), (i) it will be conclusively
established for purposes of this Agreement that the claims made in that proceeding are within the
scope of and subject to indemnification; (ii) no compromise or settlement of such claims may be
effected by the indemnifying party without the indemnified party’s consent, which shall not be
unreasonably withheld, unless (A) there is no finding or admission of any violation of law or any
violation of the rights of any Person and no effect on any other claims that may be made against
the indemnified party, and (B) the sole relief provided is monetary damages that are paid in full
by the indemnifying party; and (iii) the indemnified party will have no Liability with respect to
any compromise or settlement of such claims effected without its consent. If notice is given to an
indemnifying party of the commencement of any proceeding and the indemnifying party does not,
within 10 days after the indemnified party’s notice is given, give notice to the indemnified party
of its election to assume the defense of such proceeding, the indemnifying party will be bound by
any determination made in such proceeding or any compromise or settlement effected by the
indemnified party.
(c) Notwithstanding the foregoing, if an indemnified party determines in good faith that there
is a reasonable probability that a proceeding may adversely affect it or its Affiliates other than
as a result of monetary damages for which it would be entitled to indemnification under this
Agreement, the indemnified party may, by notice to the indemnifying party, assume the exclusive
right to defend, compromise, or settle such proceeding, but the indemnifying party will not be
bound by any
determination of a proceeding so defended or any compromise or settlement effected
without its consent (which may not be unreasonably withheld).
(d) Seller and Shareholder hereby consent to the non-exclusive jurisdiction of any court in
which a proceeding is brought by a third party against any indemnified person for purposes of any
claim that an indemnified person may have under this Agreement with respect to such proceeding or
the matters alleged therein, and agree that process may be served on Seller or Shareholder with
respect to such a claim anywhere in the world.
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9.5 Set-Off Rights; Character of Indemnity Payments. The indemnifying party shall promptly
pay the indemnified party any amount due under this Article IX. Buyer shall have the right, but
not the obligation, to set-off against the Additional Purchase Consideration any amount Seller or
Shareholder may be obligated to pay Buyer under the terms of this Agreement. If, contrary to the
intent of the parties, any payment made pursuant to this Article IX is treated as taxable income to
the recipient, then the payor shall indemnify and hold harmless the recipient from any Liability
for Taxes attributable to the receipt of such payment. For purposes of this Section 9.5, the
indemnified party will be considered to be liable for Tax in respect of any payment treated as
taxable income at the highest marginal tax rate then in effect for corporations in the jurisdiction
so characterizing the payment for the year such payment is considered to be earned by the
indemnified party.
9.6 Limitation on Shareholder’s Liability. Each of the parties hereby agree that the maximum
liability of Shareholder under this Agreement in respect of any indemnity claim under this Article
IX shall not exceed the aggregate purchase price (including any Additional Purchase Consideration)
under this Agreement.
ARTICLE
X.
MISCELLANEOUS
MISCELLANEOUS
10.1 Notices. All notices, communications and deliveries hereunder shall be made in writing
signed by the party making the same, shall specify the Section hereunder pursuant to which it is
given or being made, and shall be delivered by registered or certified mail (with postage and other
fees prepaid) as follows:
| To Buyer: | INX Inc. | |||
| Attn: ▇▇▇▇▇ ▇. ▇▇▇▇, Chairman & Chief Executive Officer | ||||
| ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | ||||
| ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ | ||||
| Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ | ||||
| Email: ▇▇▇.▇▇▇▇@▇▇▇▇.▇▇▇ | ||||
| With a copy to: | Mayer, Brown, ▇▇▇▇ & Maw LLP | |||
| Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇. | ||||
| ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||||
| ▇▇▇▇▇ ▇▇▇▇ | ||||
| ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ | ||||
| Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ | ||||
| Email: ▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ |
| To Seller or Shareholder: | ||||
| Datatran Network Systems | ||||
| Attn: ▇▇▇ ▇▇▇▇▇▇▇▇, President | ||||
| ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ | ||||
| ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||||
| Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ | ||||
| Email: ▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇ | ||||
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| with a copy to: | ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Hair & ▇▇▇▇▇▇▇ LLP | |||
| Attn: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | ||||
| ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ | ||||
| ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||||
| Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ | ||||
| Email: ▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇ |
or to such other representative or at such other address of a party as such party hereto may
furnish to the other parties in writing. Such notice shall be effective upon the date of delivery
or the intended recipient’s refusal to accept delivery. After any notice is made hereunder, the
party taking such action will use its best efforts to deliver a copy of such notice to the e-mail
address of the intended recipients as soon as practical but in no event later than 12 hours after
such action has been taken.
10.2 Attachments. All schedules and exhibits attached hereto are hereby incorporated into
this Agreement and are hereby made a part hereof as if set out in full in this Agreement.
10.3 Assignment; Successors in Interest. No assignment or transfer by any party of its
respective rights and obligations hereunder shall be made except with the prior written consent of
the other parties hereto, except Buyer shall be permitted to assign its rights and obligations
hereunder to one of its Affiliates, but no such assignment will release Buyer from its obligations
hereunder. This Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their successors and permitted assigns and any reference hereto shall also be a
reference to a permitted successor or assign.
10.4 Number; Gender. Whenever the context so requires, the singular number shall include the
plural and the plural shall include the singular, and the gender of any pronoun shall include the
other genders.
10.5 Captions. The titles and captions contained in this Agreement are inserted herein only
as a matter of convenience and for reference and in no way define, limit, extend or describe the
scope of this Agreement or the intent of any provision hereof. Unless otherwise specified to the
contrary, all references to Articles and Sections are references to Articles and Sections of this
Agreement and all references to Exhibits are references to Exhibits to this Agreement.
10.6 Controlling Law; Venue; Integration: Amendment. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas without regard to choice of law
provisions, statutes, regulations or principles of this or any other jurisdiction. Each party
hereby
irrevocably submits to the exclusive jurisdiction of the state and federal courts of the State of
Texas for any action, suit or proceeding arising in connection with this Agreement, and agrees that
any such action suit or proceeding shall be brought only in any such court in Houston, Texas (and
waives any objection based on forum non conveniens or any other jurisdiction to venue therein).
This Agreement (and the related written agreements to be entered into in connection with this
Agreement) supersedes all negotiations, agreements and understandings among the parties with
respect to the subject matter hereof and constitutes the entire agreement among the parties hereto.
This Agreement may not be amended, modified or supplemented except by the written agreement of
Seller and Buyer. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHTS TO TRIAL BY JURY IN CONNECTION WITH ANY LITIGATION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
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10.7 Counterparts. This Agreement may be executed in counterparts, including the signature
pages, each of which shall be deemed an original and all of which together shall constitute one and
the same agreement. In addition, the parties agree that the counterparts of this Agreement so
signed may be evidenced by delivery of a telecopy or other electronic transmission of the signature
page image to this Agreement to the other party at the number listed in Section 10.1 and that such
telecopied signature pages shall be treated for all purposes as original signatures to this
Agreement.
10.8 Enforcement of Certain Rights. Nothing expressed or implied in this Agreement is
intended, or shall be construed, to confer upon or give any person, firm or corporation other than
the parties hereto, their successors or permitted assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement, or result in such person, firm or corporation
being deemed a third party beneficiary of this Agreement.
10.9 Waiver. Any agreement on the part of a party hereto to any extension or waiver shall be
valid only if set forth in an instrument in writing signed on behalf of such party. A waiver by
one party of the performance of any covenant, agreement, obligation, condition, representation or
warranty shall not be construed as a waiver of any other covenant, agreement, obligation,
condition, representation or warranty. A waiver by any party of the performance of any act shall
not constitute a waiver of the performance of any other act or an identical act required to be
performed at a later time.
10.10 Arbitration; Legal Proceedings.
(a) The parties shall attempt in good faith to resolve any dispute arising out of or relating
to this Agreement, the breach, termination or validity hereof or the transactions contemplated
herein promptly by negotiation between a representative of Buyer and Seller. Either Seller or
Buyer may give the other written notice that a dispute exists (a “Notice of Dispute”). The
Notice of Dispute shall include a statement of such party’s position and the name and title of the
representative who will represent such party. Within ten (10) days of the delivery of the Notice of
Dispute, a representative from each party hereto shall meet at a mutually acceptable time and
place, and thereafter as long as they reasonably deem necessary, to attempt to resolve the dispute.
All documents and other information or data on which each party relies concerning the dispute shall
be furnished or made available on reasonable terms to the other party at or before the first
meeting of the parties as provided by this paragraph.
(b) Except as provided in paragraph (d) below, any controversy or claim arising out of or
relating to this Agreement, the breach, termination or validity hereof, or the transactions
contemplated herein, if not settled by negotiation as provided in paragraph (a) of this Section
10.10, shall be settled by arbitration in accordance with the Commercial Arbitration Rules
(“CAR”) of the American Arbitration Association (“AAA”), by one arbitrator selected
by mutual agreement of the parties. In the
event the parties cannot agree to an arbitrator, the arbitrator shall be selected by the CAR,
Selection of Arbitrators. Either party may initiate arbitration by delivering a written election
to arbitrate to the other party at any time after twenty (20) days following the delivery of a
Notice of Dispute if the dispute has not then been settled by negotiation, or sooner if the other
party fails to participate in negotiation in accordance with paragraph (a) above. The arbitration
procedure shall be governed by the United States Arbitration Act, 9 U.S.C. Section 1-16 (the
“Act”) and shall be held in Houston, Texas, and the award rendered by the arbitrator shall
be final and binding on the parties and may be entered in any court having jurisdiction thereof,
subject to the court’s authority to modify or review the award as provided in the Act.
(c) Each party shall bear its own costs and shall share equally the fees and expenses of the
arbitrator.
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(d) Each party hereby acknowledges and agrees that this Section 10.10 shall not apply to any
claim, controversy, action suit or proceeding in which a party hereto seeks specific performance,
injunctive relief or any other equitable relief and that such party may initiate any such claim,
controversy, action suit or proceeding in accordance with Section 10.6 hereof.
10.11 Reliance on Counsel and Other Advisors. Each party has consulted such legal, financial,
technical or other experts as it deems necessary or desirable before entering into this Agreement.
Each party represents and warrants that it has read, knows, understands and agrees with the terms
and conditions of this Agreement.
10.12 Injunctive Relief. The parties to this Agreement hereby agree that any remedy at law
for any breach of the provisions contained in this Agreement shall be inadequate and that any
party, to the extent permitted by applicable law, shall be entitled to injunction relief in
addition to any other remedy such party might have under this Agreement.
10.13 Severability. If a judicial or arbitral determination is made that any of the
provisions of this Agreement constitutes an unreasonable or otherwise unenforceable restriction
against Seller or Shareholder the provisions of this Agreement shall be rendered void only to the
extent that such judicial or arbitral determination finds such provisions to be unreasonable or
otherwise unenforceable with respect to Seller or Shareholder.
[SIGNATURE PAGE FOLLOWS]
Asset Purchase Agreement
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IN WITNESS WHEREOF, each of the parties hereto has executed this Asset Purchase Agreement as
of this 3rd day of February, 2006.
BUYER:
|
SELLER: | |
| DATATRAN NETWORK SYSTEMS | ||
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
|
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇ | |
▇▇▇▇▇ ▇. ▇▇▇▇,
|
▇▇▇ ▇▇▇▇▇▇▇▇ | |
Chairman & Chief Executive Officer
|
President |
SHAREHOLDER:
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇, individually
▇▇▇ ▇▇▇▇▇▇▇▇, individually
Asset Purchase Agreement
38