Exhibit 10.3
ASSET PURCHASE AGREEMENT
by and among
JUDGE IMAGING SYSTEMS, INC.,
THE JUDGE GROUP, INC.
and
AOP MORRISTOWN CORP.
SECTION 1. ACQUISITION OF ASSETS
1.1 Sale and Purchase of Assets
1.2 Excluded Assets
1.3 Assumption of Liabilities
1.4 Consents
SECTION 2. PURCHASE AND SALE
2.1 Purchase Price
2.2 Allocation of Consideration
2.3 Closing Costs
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SELLER
3.1 Organization and Good Standing
3.2 Power and Authorization
3.3 No Conflicts
3.4 Brokers
3.5 Title; Liens
3.6 Accounts Payable and Accrued Liabilities
3.7 Accounts and Notes Receivable
3.9 Contracts
3.10 Tax Matters
3.11 Financial Statements
3.12 Material Adverse Changes
3.13 Undisclosed Liabilities
3.14 Legal Proceedings
3.15 Customers
SECTION 4. REPRESENTATIONS AND WARRANTIES OF BUYER
4.1 Organization and Good Standing
4.2 Power and Authorization
4.3 No Conflicts
4.4 Brokers
SECTION 5. CLOSING; CERTAIN COVENANTS
5.1 Closing and Effectiveness
5.2 Deliveries at the Closing
5.3 Use of Name
5.4 Accounting Software
5.5 Remittance of Payments
SECTION 6. EMPLOYEE BENEFITS AND EMPLOYMENT
6.1 Employment
6.2 Employee Pension Benefit Plans
6.3 Employee Welfare Benefit Plans
6.4 Health Continuation Coverage
6.5 Health Insurance Portability and Accountability Act ("HIPAA")
6.6 Reporting and Disclosure Requirements
6.7 Employee Records
SECTION 7. INDEMNIFICATION
7.1 Indemnification by Seller
7.2 Indemnification by Buyer
7.3 Inter-Party Claims
7.4 Third Party Claims
7.5 Limitations and Requirements
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SECTION 8. MISCELLANEOUS
8.1 Survival of Representations and Warranties
8.2 Further Assurances
8.3 Costs and Expenses
8.4 Acknowledgment of Warranty Disclaimer
8.5 Acknowledgment of Warranty Disclaimer
8.6 Public Announcements
8.7 Notices
8.8 Assignment and Benefit
8.9 Amendment, Modification and Waiver
8.10 ▇▇▇▇ of Sale
8.11 Governing Law; Consent to Jurisdiction
8.12 Section Headings and Defined Terms
8.13 Invalidity/Severability
8.14 Counterparts
8.15 Entire Agreement
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is effective as of
June 30, 1999, (the "Effective Date") by and among Judge Imaging Systems, Inc.,
a Pennsylvania corporation ("Seller"), The Judge Group, Inc., a Pennsylvania
corporation ("Judge Group"), and AOP Morristown Corp., a New York corporation
("Buyer"). Buyer, Judge Group and Seller are collectively referred to herein as
the "Parties".
BACKGROUND
The Parties desire to provide for, among other things, the acquisition
by Buyer from Seller and the sale by Seller to Buyer of certain Assets (as
defined below) and the assumption by Buyer of certain liabilities relating to
the document solutions and information management business (the "Business")
which Seller operates in (i) Hartford, Connecticut, (ii) Needham, Massachusetts,
and (iii) Moorestown, New Jersey upon the terms and subject to the conditions
set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual representations, warranties, covenants and agreements herein contained,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be legally
bound, hereby agree as follows:
ACQUISITION OF ASSETS
Sale and Purchase of Assets. Upon the terms and subject to the
conditions of this Agreement, Seller hereby sells, transfers and delivers to
Buyer the Assets (as defined below) and Buyer hereby purchases the Assets from
Seller for the consideration set forth in Section 2 hereof. As used herein the
term "Assets" shall mean the following assets of the Business:
All accounts receivable of the Business as of the Effective Date or
earned thereafter in the ordinary course, including all receivables identified
on Schedule 3.7;
All supplies, machinery, furniture, furnishings, motor vehicles,
equipment and other personal property and tangible assets located at the
Business or used exclusively by the Business regardless of location;
To the extent assignable, all right, title and interest in, to and
under all purchase orders, sales agreements, equipment leases, distribution
agreements, licensing agreements and other contracts, agreements and commitments
("Contracts") of the Business, including those set forth on Schedule 1.1(c);
Prepaid expenses;
Copies of all books and records exclusively relating to the
Business or the Assets (including such books and records as are contained in
computerized storage media), including all inventory, purchasing, accounting,
sales, export, import, manufacturing, marketing, banking and shipping records
and all files, contractor, consultant, customer/client and supplier lists,
records, literature and correspondence, and marketing materials excluding tax
returns;
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The lease (the "Connecticut Lease") related to the facility at ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇;
The three leases (the "New Jersey Leases") related to the
facilities at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇, ▇ and 8, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇;
The lease (the "Florida Lease") related to the facility at ▇▇▇▇▇▇
▇▇. ▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇;
Any other assets of the Business which are of a nature not
customarily reflected in the books and records of a business, such as assets
which have been written off for accounting purposes but which are still used by
or of value to the Business;
To the extent assignable, all permits, licenses and authorizations
("Authorizations") associated with the Business and its operations which are
identified on Schedule 1.1(j);
All intangible assets and goodwill exclusively related to the
Business and its operations;
All deposits in the hands of third parties; and
All other assets of the Business exclusively related to the
Business and its operations other than "Excluded Assets" defined in Section 1.2.
Excluded Assets. The Assets being sold, assigned, and transferred to
Buyer hereunder do not include any other assets of Seller, including:
An amount equal to the cash and cash equivalents reflected on the
June 30 Balance sheet;
Any assets or rights used both for the Business and other
operations of Judge Imaging;
Any name or ▇▇▇▇ which includes "Judge";
Any rights, claims or counterclaims under this Agreement or the
Transaction Documents; or
Assets listed on Schedule 1.2 (collectively, the "Excluded
Assets").
Assumption of Liabilities. Buyer hereby assumes, and thereafter will
fully perform, pay and satisfy, all of the following debts, liabilities
(including contingent liabilities), claims, obligations, and commitments, known
and unknown ("Liabilities"), of Seller relating to the Business (the "Assumed
Liabilities"):
all obligations of Seller that are executory as of the Closing Date
under Contracts of the Business that are part of the Assets assigned to Buyer
and Seller's obligations under the Connecticut Lease, the New Jersey Leases and
the Florida Lease (rent under the Connecticut Lease, the New Jersey Leases and
the Florida Lease will be prorated to the Closing Date);
all accounts payable of Seller reflected on the June 30 Balance
Sheet or relating to or arising out of the operation of the Business thereafter
in the ordinary course, including all payables set forth on Schedule 3.6;
all purchase accruals of Seller relating to or arising out of the
operation of the Business, including all purchase accruals set forth on Schedule
3.8, except that Seller will be responsible for all accrued commissions owed to
▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇;
vacation, severance and similar employment liabilities with respect
to Transferred Employees (except as provided in Section 6);
unearned revenues and customer deposits;
all liabilities of the Business arising after the Closing Date; and
all liabilities reflected on (and not excluded by) the June 30
Balance Sheet and all liabilities arising in the ordinary course of operating
the Business after the Effective Date.
Buyer does not assume and shall not be liable for any other Liabilities,
including but not limited to (i) Taxes relating to periods prior to the Closing
Date or (ii) any other Liability arising out of the operation of the Business
prior to the Closing Date. In addition, Buyer shall not be liable for Seller's
payroll expense from July 1, 1999 through July 21, 1999.
Consents. Notwithstanding anything in this Agreement to the contrary,
if any Contract or Authorization included in the Assets may not be transferred
without the consent, approval or waiver ("Consent") of a third party (including,
without limitation, any governmental authority) and such transfer or attempted
transfer would constitute a breach thereof or a violation of any law, nothing in
this Agreement or any Transaction Document shall constitute a transfer or
attempted transfer thereof. Seller and Buyer will use reasonable efforts to
obtain each such Consent before or as soon as possible after the Closing Date,
but to the extent not obtained, Seller and Buyer shall cooperate (a) in
endeavoring to obtain such Consent promptly, and (b) if any such Consent is
unobtainable, in any reasonable arrangement so that Buyer has all of the
benefits and assumes all of the executory obligations under any such Contract or
Authorization as if such Contract and Authorization had been duly assigned to
Buyer.
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PURCHASE AND SALE
Purchase Price. In full consideration for the sale by Seller to Buyer
of the Assets pursuant to Section 1.1 hereof, and the other agreements by Seller
and Buyer herein, the aggregate purchase price for the Assets shall be Two
Million Two Hundred and Twenty-Three Thousand Dollars ($2,223,000) (the
"Purchase Price"), which shall be payable by Buyer to Seller by means of wire
transfer prior to or at the Closing. In addition, Buyer shall pay Seller
Eighty-Eight Thousand Dollars and Fifty-Seven Cents ($88,000.57) in connection
with the July 30, 1999 payment by Seller of salaries and health care coverage
premiums and other benefits for the employees of the Business plus Four Hundred
and Nineteen Thousand Dollars ($419,000) to reimburse Seller for the payment,
between July 1, 1999 and August 2, 1999, by Seller of certain accounts payable
of the Business, without a right on the part of Buyer to set-off, not later than
September 16, 1999, pursuant to the terms of a promissory note bearing interest
at 8.0% and secured by substantially all the assets of Buyer and Automated
Office Products of Western New York, Inc., a New York corporation (the
"Guarantor"), to be entered into by Buyer prior to or at the Closing,
substantially in the form attached hereto as Exhibit A-1 (the "Note").
Allocation of Consideration. The consideration for the Assets shall be
allocated to the Seller and among the Assets as specified on Schedule 2.2
hereto. Within 90 days following the Closing, Buyer shall prepare and submit to
Seller Internal Revenue Form 8594 (relating to purchase price allocation),
prepared in accordance with such allocation. Seller and Buyer shall prepare
their respective federal, state and local tax returns and reports employing the
allocation made pursuant to this Section and shall not take a position in any
tax proceeding or audit or otherwise that is inconsistent with such allocation;
provided, that nothing contained herein shall require Seller or Buyer to
contest, beyond the exhaustion of its administrative remedies before any taxing
authority or agency, and Seller and Buyer shall not be required to litigate
before any court, including, without limitation, the United States Tax Court,
any proposed deficiency or adjustment by any taxing authority or agency that
challenges such allocation. Seller and Buyer shall give prompt notice to each
other promptly upon becoming aware of the commencement or threat of any tax
audit or the threatened assertion of any proposed deficiency or adjustment by
any tax authority or agency that challenges such allocation.
Closing Costs. Buyer and Seller shall divide equally all documentary,
use, filing, sales and other taxes and fees due or payable as a result of the
transfer and delivery of the Assets from Seller to Buyer. Each of Buyer and
Seller shall pay all of its respective attorney, consultant, accounting and
other fees and any and all other expenses contemplated to be paid by Buyer or
Seller under this Agreement, the Note and the other agreements, documents and
instruments related hereto (this Agreement, the Note and such related
agreements, documents and instruments, collectively, the "Transaction
Documents").
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller and Judge Group hereby represent and warrant to Buyer as of the
Closing Date as follows (except, in each case, to the extent Buyer has actual
knowledge or belief that any such representation and/or warranty is incorrect as
a result of Buyer's due diligence, or Buyer's familiarity with the Business or
otherwise):
Organization and Good Standing. Each of Seller and Judge Group is a
corporation duly organized, validly existing and in good standing under the laws
of the Commonwealth of Pennsylvania, and Seller is qualified to do business in
the States of Connecticut, Massachusetts and New Jersey, and each of Seller and
Judge Group has all necessary power and authority to carry on its business as
presently conducted, to own and lease the assets which it owns and leases and to
perform all its obligations under each agreement and instrument by which it is
bound.
Power and Authorization. Each of Seller and Judge Group has the
corporate power and authority to enter into and perform its obligations under
this Agreement and under the other agreements and documents required to be
delivered by Seller prior to or at the Closing in connection herewith (such
agreements and documents, collectively, the "Seller Transaction Documents"). The
execution, delivery and performance by Seller and Judge Group of this Agreement
and the Seller Transaction Documents have been duly authorized by all necessary
corporate action. This Agreement has been duly and validly executed and
delivered by Seller and Judge Group and constitutes a legal, valid and binding
obligation of Seller and Judge Group, enforceable against Seller and Judge Group
in accordance with the terms hereof. When executed and delivered as contemplated
herein, each of the Seller Transaction Documents shall constitute the legal,
valid and binding obligation of Seller and Judge Group, enforceable against
Seller and Judge Group in accordance with the terms thereof.
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No Conflicts.
The execution, delivery and performance of this Agreement and the
Seller Transaction Documents do not and will not (with or without the passage of
time or the giving of notice):
violate or conflict with Seller's or Judge Group's certificate or
articles of incorporation or by-laws, any statute, law, regulation, permit,
license, or certificate, or any judgment, order, award or other decision or
requirement of any arbitrator, court, government or governmental agency or
instrumentality (domestic or foreign) binding upon Seller and Judge Group and
their properties or assets (such statutes, laws, regulations, permits, licenses,
certificates, judgments, orders, awards and other decisions or requirements,
collectively, "Laws"); or
violate or conflict with, result in a breach of, or constitute a
default or otherwise cause any loss of benefit under, any material agreement or
other material obligation to which Seller or Judge Group is a party; or
cause Buyer to become subject to or liable for any tax liability of
Seller or Judge Group other than taxes required to be prorated hereunder and/or
sales tax due on this transaction.
Except as described on Schedule 3.3(b), no Consents or registrations,
notifications, filings and/or declarations with, any court, government or
governmental agency or instrumentality, creditor, lessor or other person or
entity are required to be given or made by Seller or Judge Group in connection
with the execution, delivery and performance of this Agreement and the other
agreements, documents and instruments contemplated herein, other than such as
have been obtained or made and are in full force and effect.
There are no actions, proceedings or investigations ("Actions") pending
or, to the knowledge of Seller or Judge Group, threatened, that question any of
the transactions contemplated by, or the validity of, this Agreement or any of
the other Transaction Documents or which, if adversely determined, could
reasonably be expected to have a material adverse effect upon the Business or
the ability of Seller to enter into or perform its respective obligations under
this Agreement or any of the other Transaction Documents. Seller has not, on
behalf of itself or Buyer, received any request from any governmental agency or
instrumentality for information with respect to the transactions contemplated
hereby.
Brokers. No person acting on behalf of Seller or Judge Group or any of
their affiliates or under the authority of any of the foregoing, is or will be
entitled to any brokers' or finders' fee or any other commission or similar fee,
directly or indirectly, from any of the parties in connection with any of the
transactions contemplated by this Agreement.
Title; Liens. Except as described on Schedule 3.5, Seller has the
Assets free and clear of all liens, pledges, charges, claims, encumbrances,
proscriptions, restrictions, conditions, covenants, and easements of any kind
("Liens") other than Liens included in the Assumed Liabilities.
Accounts Payable and Accrued Liabilities. Schedule 3.6 contains a
correct and complete list and aging report of all accounts payable and accrued
liabilities of Seller outstanding as of the Effective Date. Seller has paid all
prior accounts payable in accordance with their terms, other than accounts
payable which Seller is disputing in good faith and which are identified on
Schedule 3.6 as disputed.
Accounts and Notes Receivable. Schedule 3.7 contains a correct and
complete list and aging report of all accounts and notes receivable of Seller as
of the Effective Date. All such accounts and notes receivable of Seller
represent valid obligations from sales made or services rendered in the ordinary
course of business. To the knowledge of Seller, there are no counterclaims or
rights of set-off with respect to any accounts and notes receivable of the
Business.
Purchase Accruals. Schedule 3.8 contains a correct and complete list of
all purchase accruals of Seller as of the Effective Date.
Contracts. All Contracts included in the Assets have been entered into
on an arms length basis and are on terms reflecting fair value for the assets or
services provided thereunder. Seller has made available to Buyer complete copies
of all Seller's written Contracts and has provided information to Buyer
concerning all of Seller's oral Contracts. Except as disclosed on Schedule 3.9,
no event has occurred which constitutes or, with the passage of time or the
giving of notice, or both, would constitute a material default by Seller or, to
the knowledge of Seller, by any other person under any Contracts, or which would
give any other person under such Contract the right to declare a default or
exercise any remedy under, or to accelerate the maturity or performance of, or
to cancel, terminate, or modify, any Contract. Seller has not received from any
other person under any such Contract any notice or other communication regarding
any actual or alleged breach of any Contract. To the knowledge of Seller, there
are no renegotiations of, attempts to renegotiate, or outstanding rights to
renegotiate any material amounts paid or payable to Seller under any Contracts.
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Tax Matters. All reports, returns or other information required to be
supplied to any federal, state, local or other governmental authority, or any
political subdivision thereof, and any governmental, judicial, public or
statutory instrumentality, tribunal agency, authority, body or entity having
legal jurisdiction over any matter in question with respect to taxes ("Tax
Returns") required to be filed by, or with respect to, the Assets have been
filed. Payment has been made of all taxes required to be paid in respect of the
periods covered by such Tax Returns (except where the failure to pay would not,
in the aggregate, have a material adverse effect on the Assets). No deficiency
for any taxes has been proposed, asserted or assessed in connection with the
Assets that has not been resolved or paid in full. No audits or other
administrative proceedings or court proceedings are presently pending with
regard to any material Tax Returns in connection with the Assets.
Financial Statements. Seller has delivered to Buyer, as attached hereto
as Schedule 3.11:
an unaudited balance sheet of the Business as of the Effective Date
(the "June 30 Balance Sheet");
an unaudited profit and loss statement of the Business for the six
months ended as of the Effective Date; and
listings of accounts payable and accounts receivable of the
Business as of the Effective Date.
The financial statements referred to in subsections (a) and (b) fairly present
the financial condition and the results of operations of the Business as at the
Effective Date and for the six month period then ended, all in accordance with
GAAP, consistently applied, except as provided in Schedule 3.11. The listings
described in subsection (c) are complete and accurate.
Material Adverse Changes. Since the Effective Date, there has not been
any material adverse change in the business, operations, properties, prospects,
assets, or condition of the Business, and, to the knowledge of Seller, no event
has occurred or circumstance exists that might reasonably be expected to result
in such a material adverse change.
Undisclosed Liabilities. Seller has, with respect to the Business, no
liabilities or obligations of any nature other than (i) those on the unaudited
balance sheet of the Business as of the Effective Date, (ii) those incurred
since the Effective Date in the ordinary course of business, or (iii) those of a
type that GAAP does not require to be reported on a balance sheet.
Legal Proceedings. Except as set forth on Schedule 3.14, there are no
pending or, to the best knowledge of Seller, threatened actions, claims or
proceedings (i) that have been commenced by or against the Business or that
otherwise relate to or may affect the Business, or (ii) that challenge, or that
may have the effect of preventing, delaying, making illegal, or otherwise
interfering with, the Closing. To the knowledge of Seller no event has occurred
or circumstance exists that may give rise to or serve as a basis for the
commencement of any such proceeding.
Customers. Schedule 3.15 sets forth a complete and accurate list of all
material customers of the Business.
Seller's Knowledge. For purposes of this Agreement, "to the knowledge
of Seller" or words of similar import shall be conclusively deemed to be only
that knowledge actually possessed by those persons identified in Schedule 3.16.
Seller shall not be deemed to have actual or constructive knowledge of any fact,
circumstance or occurrence known to any person other than as set forth in the
preceding sentence.
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller as of the date of this
Agreement as follows (except, in each case, to the extent Seller has knowledge
or belief that any such representation and/or warranty is incorrect as a result
of Seller's due diligence, or Seller's familiarity with the Business or
otherwise):
Organization and Good Standing. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of New York,
and has all necessary power and authority to carry on its business as presently
conducted, to own and lease the assets which it owns and leases and to perform
all its obligations under each agreement and instrument by which it is bound.
Power and Authorization. Buyer has the corporate power and authority to
enter into and perform its obligations under this Agreement, the Note and under
the other agreements, documents and instruments (collectively, the "Buyer
Transaction Documents") required to be delivered by it prior to or at the
Closing. The execution, delivery and performance by Buyer of this Agreement and
the Buyer Transaction Documents have been duly authorized by all necessary
corporate action. This Agreement has been duly and validly executed and
delivered by Buyer and constitutes the legal, valid and binding obligation of
Buyer, enforceable against Buyer in accordance with the terms hereof. When
executed and delivered as contemplated herein, each of the Buyer Transaction
Documents shall constitute the legal, valid and binding obligation of Buyer,
enforceable in accordance with the terms thereof.
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No Conflicts.
The execution, delivery and performance of this Agreement and the Buyer
Transaction Documents do not and will not (with or without the passage of time
or the giving of notice):
violate or conflict with Buyer's certificate or articles of
formation or organization or partnership agreement or any Laws; or
violate or conflict with, result in a breach of, or constitute a
default or otherwise cause any loss of benefit under, any material agreement or
other material obligation to which Buyer is a party.
No Consents or registrations, notifications, filings and/or
declarations with any court, government or governmental agency or
instrumentality, creditor, lessor or other person or entity are required to be
given or made by Buyer in connection with the execution, delivery and
performance of this Agreement and the other agreements, documents and
instruments contemplated herein, other than such as have been obtained or made
and are in full force and effect.
There are no actions, proceedings or investigations pending or, to
the knowledge of Buyer, threatened, that question any of the transactions
contemplated by, or the validity of, this Agreement or any of the other
Transaction Documents or which, if adversely determined, could reasonably be
expected to have a material adverse effect upon the ability of Buyer or Seller
to enter into or perform its respective obligations under this Agreement or any
of the other Transaction Documents. Buyer has not, on behalf of itself or
Seller, received any request from any governmental agency or instrumentality for
information with respect to the transactions contemplated hereby.
Brokers. No person acting on behalf of Buyer or any of its affiliates
or under the authority of any of the foregoing is or will be entitled to any
brokers' or finders' fee or any other commission or similar fee, directly or
indirectly, from any of the parties in connection with any of the transactions
contemplated by this Agreement.
CLOSING; CERTAIN COVENANTS
Closing and Effectiveness. The closing of the purchase and sale of the
Assets and the assignment and assumption of the Assumed Liabilities (the
"Closing") pursuant to this Agreement shall be effective as of the close of
business on the Effective Date and shall take place on August 2, 1999 (the
"Closing Date").
Deliveries at the Closing. At the Closing, in addition to the other
actions contemplated elsewhere herein:
Seller shall deliver, or shall cause to be delivered, to Buyer the
following:
a closing certificate and secretary's certificate, dated the
Closing Date and signed by the Chief Executive Officer or President or a Vice
President of Seller and by the Secretary of Seller, satisfactory to Buyer;
a copy of the resolutions of the board of directors of Seller
authorizing the execution, delivery and performance of this Agreement and the
other Transaction Documents, certified as of the Closing by the Secretary of
Seller;
UCC-3 termination statements effecting the termination or release
of all Assets from the security interests identified in Schedule 3.5;
a release from PNC Bank, National Association, in form reasonably
satisfactory to Buyer, of the Assets from all security interests of the bank in
the Assets;
a written consent of the landlord with respect to the assignment to
Buyer of the Connecticut Lease;
a written consent of the landlord with respect to the assignment to
Buyer of the New Jersey Leases;
a written consent of the landlord with respect to the assignment to
Buyer of the Florida Lease; and
such other documents and instruments as Buyer may reasonably
request to effectuate or evidence the transactions contemplated by this
Agreement;
provided that, Seller shall have no liability under this Section if it cannot
deliver the consents referred to in (v), (vi) and (vii) above, but it will use
reasonable efforts to obtain such consents as promptly as possible.
Buyer shall deliver, or shall cause to be delivered, to Seller the
items described below:
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a closing certificate and secretary's certificate, dated the
Closing Date signed by the President or a Vice President of Buyer and by the
Secretary of Buyer, satisfactory to Seller;
a copy of the resolutions of the board of directors or
corresponding governing body of Buyer authorizing the execution, delivery and
performance by Buyer of this Agreement and the other Transaction Documents,
certified as of the Closing by the Secretary of Buyer;
the Note and collateral security documentation related thereto,
executed by Buyer;
a guaranty of Buyer's obligations hereunder and under the Note,
executed by Guarantor, substantially in the form attached hereto as Exhibit A-2;
such other documents and instruments as Seller may reasonably
request to effectuate or evidence the transactions contemplated by this
Agreement.
Use of Name. From and after thirty days after the Closing, Buyer shall
not have or use or permit any affiliate of Buyer to have or use any name or ▇▇▇▇
which includes a reference to Judge Group, or Seller, or any name or ▇▇▇▇
similar thereto, and no such name or ▇▇▇▇ or rights thereto shall be included in
the Assets. On request, Buyer shall deliver to Seller evidence (which shall be
reasonably satisfactory to Seller) of compliance with this Section. Buyer
acknowledges that breach of this Section will give rise to irreparable injury to
Seller and Judge Group and that as a result money damages are inadequate.
Accordingly, Buyer irrevocably acknowledges and agrees that Seller and Judge
Group may each seek and obtain injunctive relief and other equitable remedies
with respect to any breach or threatened breach of this Section, in addition to
any other remedies which may be available at law. In the event of any alleged
breach of this Section, Buyer will be responsible for the legal fees and costs
incurred by Seller and Judge Group. In the event any such allegation is made
incorrectly, as adjudicated by a court or arbitrator, Seller and Judge Group
will be responsible for the legal fees and costs incurred by Buyer.
Accounting Software. From and after the Closing Date until December 31,
1999, to the extent permitted under any applicable licenses or permits, Seller
shall permit Buyer to use the accounting software that Seller used prior to the
Closing Date to generate the financial statements of the Business, provided that
Buyer's use of such accounting software does not interfere with the operations
of Seller and/or Judge Group after the Closing Date.
Remittance of Payments. From and after the Effective Date, Seller shall
immediately remit to Buyer, in the form received, any payments that it or any
affiliate may receive (such as payments of accounts receivable) which properly
belong to Buyer, and Buyer shall immediately remit to Seller, in the form
received, any payments that Buyer or any affiliate may receive which properly
belong to Seller. In particular, Seller shall immediately remit to Buyer any
cash remitted by a customer on or after the Effective Date that is attributable
to a receivable, which was part of the Assets purchased hereunder. Neither Party
may set off against any amount due under this section any amount owed to or
allegedly owed to such Party.
EMPLOYEE BENEFITS AND EMPLOYMENT
Employment. Buyer will determine which employees of the Business to
whom it will offer employment and identify such employees by name to Seller not
later than July 30, 1999. Buyer shall offer employment to such individuals
effective as of the Closing Date. Employees who accept such employment and
become employed by Buyer shall be referred to as "Transferred Employees" for
purposes of this Agreement. Buyer shall offer employment to ▇▇▇▇▇▇ ▇▇▇▇▇▇ at a
nominal annual salary, and, if ▇▇. ▇▇▇▇▇▇ accepts such employment and it is
permitted by Buyer's insurers, Buyer shall ensure that ▇▇. ▇▇▇▇▇▇ remains
eligible for health insurance benefits offered by Buyer to employees of the
Business (if ▇▇. ▇▇▇▇▇▇ pays his individual annual premiums for such benefits)
until such time as ▇▇. ▇▇▇▇▇▇ is eligible to receive Medicare benefits. Judge
Group shall pay any cost or expense incurred by Buyer as a result of any illness
of ▇▇. ▇▇▇▇▇▇ for the remainder of the life of ▇▇. ▇▇▇▇▇▇. Each of Seller, Judge
Group and any affiliate thereof shall not solicit the employment of any of ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇▇▇▇ for a period of two years after the Closing
Date, and each of Seller, Judge Group and any affiliate thereof shall not
solicit the employment of any other Transferred Employee for a period of one
year after the Closing Date. Seller shall be responsible for any severance pay
obligations with respect to (i) those individuals employed in the Business who
are not Transferred Employees and whose employment with Seller is terminated or
(ii) Transferred Employees who are terminated by Buyer within 30 days after the
Closing Date. Seller shall also notify such individuals about the termination of
their employment and such notification may inform those individuals not
identified by Buyer as among those to whom Buyer will offer employment that
Buyer has decided not to offer employment to them. Anything contained in or
implied by the provisions of this Section 6.1 to the contrary notwithstanding,
the provisions of this Section shall not create any third-party beneficiary
rights in any person, including any Transferred Employee.
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Employee Pension Benefit Plans. The benefits under any Employee Pension
Benefit Plan (as defined in Section 3(2) of ERISA) maintained by Seller which
have accrued to any Transferred Employee as of the Closing Date shall be frozen
as of a date not later than 15 days after the Closing Date and no further
benefits shall accrue under any such Employee Pension Benefit Plan with respect
to such Transferred Employee. Buyer assumes no responsibility with respect to
any such Employee Pension Benefit Plan.
Employee Welfare Benefit Plans. Buyer shall be responsible for
establishing such Employee Welfare Benefit Plans (as defined in Section 3(1) of
ERISA) for Transferred Employees as it determines to be appropriate. Buyer shall
have no responsibility for any Employee Welfare Benefit Plan of Seller. Subject
to Section 1.3 hereof, Seller shall remain responsible and liable for any acts
or omissions by Seller with respect to such Employee Welfare Benefit Plans
occurring prior to the Closing Date.
Health Continuation Coverage. Buyer shall be responsible for all health
continuation coverage requirements of the Code, and ERISA for all Transferred
Employees and their beneficiaries in periods on and subsequent to the Closing
Date. Seller shall be responsible for notifying employees who are not
Transferred Employees (and the beneficiaries of such employees) of their right
to continue their health care coverage under Seller's health care plan at their
own cost pursuant to the relevant provisions of Federal Law.
Health Insurance Portability and Accountability Act ("HIPAA"). Buyer
shall be responsible for all health insurance obligations imposed by HIPAA with
respect to any Employee Welfare Benefit Plan which is a group health plan (as
defined under Section 5000(b)(1) of the Code or Part 6 of Subtitle B of Title I
of ERISA) for all periods on and subsequent to the Closing Date.
Reporting and Disclosure Requirements. Seller shall be responsible for
filing all annual reports and satisfying all other reporting and disclosure
requirements with respect to any Employee Benefit Plan for all Plan Years ending
prior to the Closing Date.
Employee Records Buyer shall grant Seller full access to all employee
records relating to the Transferred Employees to the extent necessary to enable
Seller to comply with its obligations hereunder.
INDEMNIFICATION
Indemnification by Seller. Subject to Sections 7.5 and 8.4, Seller and
Judge Group shall jointly and severally indemnify and hold Buyer and its
officers, directors and shareholders harmless against and in respect of any and
all losses, costs, expenses, claims, damages, obligations and liabilities,
including interest, penalties and reasonable attorneys' fees and disbursements,
but not including any indirect or consequential damages (such losses, costs,
expenses, claims, damages, obligations and liabilities, including interest,
penalties and reasonable attorney's fees and disbursements, but not including
any indirect or consequential damages, collectively, "Damages"), which Buyer or
any such person may suffer, incur or become subject to arising out of, based
upon or otherwise in respect of:
any inaccuracy in or breach of any representation or warranty of
Seller made in or pursuant to this Agreement or any Transaction Document;
any breach or nonfulfillment of any covenant or obligation of
Seller contained in this Agreement or any Transaction Document; and
other than the Assumed Liabilities, any liability arising out of
the operation of the Business prior to the Closing Date.
The indemnification provided for in Section 7.1 shall be limited to claims
asserted by Buyer and claim notices delivered with respect thereto to Seller on
or before the 270th day after the Closing Date.
Indemnification by Buyer. Buyer shall indemnify, defend and hold Seller
and its affiliates and their officers, directors and shareholders harmless
against and in respect of any and all Damages which Seller or any such entity or
person may suffer, incur or become subject to arising out of, based upon or
otherwise in respect of:
any inaccuracy in or breach of any representation or warranty of
Buyer made in or pursuant to this Agreement or any Transaction Document;
any breach or nonfulfillment of any covenant or obligation of Buyer
contained in this Agreement or any Transaction Document;
the Assumed Liabilities;
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any liability arising out of the use by Buyer of accounting
software pursuant to Section 5.4 of this Agreement; and
any liability arising out of the operation of the Business after
the Closing Date.
Inter-Party Claims. Any party seeking indemnification pursuant to this
Section (the "Indemnified Party") shall notify in writing the other party or
parties from whom such indemnification is sought (the "Indemnifying Party") of
the Indemnified Party's assertion of such claim for indemnification, specifying
the basis of such claim, including all relevant facts and circumstances and the
section(s) of this Agreement under which such claim arises. The Indemnified
Party shall thereupon give the Indemnifying Party copies of the records and
documents which evidence or support such claim or the act, omission or
occurrence giving rise to such claim.
Third Party Claims.
Each Indemnified Party shall promptly notify in writing the
Indemnifying Party of the assertion by any third party of any claim with respect
to which the indemnification set forth in this Section relates (which shall also
constitute the notice required by Section 7.3), specifying the basis of such
claim including all relevant facts and circumstances and the section(s) of this
Agreement under which such claim arises. The Indemnifying Party shall have the
right, upon notice to the Indemnified Party within sixty (60) business days
after the receipt of any such notice, to undertake the defense of or, with the
consent of the Indemnified Party (which consent shall not unreasonably be
withheld), to settle or compromise such claim. The failure of the Indemnifying
Party to give such notice and to undertake the defense of or to settle or
compromise such a claim shall constitute a waiver of the Indemnifying Party's
rights under this Section 7.4(a) and in the absence of gross negligence or
willful misconduct on the part of the Indemnified Party shall preclude the
Indemnifying Party from disputing the manner in which the Indemnified Party may
conduct the defense of such claim or the reasonableness of any amount paid by
the Indemnified Party in satisfaction of such claim.
The election by the Indemnifying Party, pursuant to Section 7.4(a), to
undertake the defense of a third-party claim shall not preclude the party
against which such claim has been made also from participating or continuing to
participate in such defense, so long as such party bears its own legal fees and
expenses for so doing.
1.3 Limitations and Requirements.
Seller shall have no obligation to indemnify Buyer or any other
person against Damages pursuant to Section 7.1 of this Agreement unless and
until the aggregate of all such Damages suffered or incurred by Buyer and such
persons exceeds $100,000, in which event Buyer and such persons shall be
entitled to indemnification for all Damages in excess of such amount; provided
that (i) such limitation shall not apply to damages arising by reason of Liens
on the Assets shown by a New Jersey UCC search to be provided by Seller; (ii)
any litigation arising under this provision shall be conducted in Buffalo, New
York; and (iii) in any litigation arising under this provision, Seller and/or
Judge Group shall pay Buyer's reasonable attorney's fees.
Except as may otherwise expressly be provided in this Agreement, no
claim arising out of or based upon any inaccuracy in or breach of any
representation or warranty contained in this Agreement or any Transaction
Document shall be made unless facts exist giving rise to a claim, and written
notice pursuant to Section 7.3 is delivered to the Indemnifying Party, within
the applicable statute of limitations period.
The indemnification obligations of Seller contained herein are
intended to be exclusive and preclude all other claims, rights or remedies
against Seller which may exist at law (whether statutory or otherwise) or in
equity with respect to the matters covered by such indemnification obligations.
MISCELLANEOUS
Survival of Representations and Warranties. Subject to Section
7.5(b) above, the representations and warranties made by the parties in this
Agreement and in the certificates, documents and schedules delivered pursuant
hereto shall survive the consummation of the transactions herein contemplated as
set forth in Section 7.
Further Assurances. Each party hereto shall use commercially
reasonable efforts to comply with all requirements imposed hereby on such party
and to cause the transactions contemplated hereby to be consummated as
contemplated hereby and shall, from time to time and without further
consideration, either before or after the Closing, execute such further
instruments and take such other actions as any other party hereto shall
reasonably request in order to fulfill its obligations under this Agreement and
to effectuate the purposes of this Agreement and to provide for the orderly and
efficient transition of the ownership of the Assets to, and the assumption of
the Assumed Liabilities by, Buyer. Buyer and Seller shall, for two years after
the Closing, retain the various books and records relating to the Business and
shall, upon prior notice, provide the other party and its authorized
representatives reasonable access thereto. Each party shall promptly notify the
other party of any event or circumstance known to such party that could prevent
or delay the consummation of the transactions contemplated hereby or which would
indicate a breach or non-compliance with any of the terms, conditions,
representations, warranties or agreements of any of the parties to this
Agreement.
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Costs and Expenses. Except as otherwise expressly provided herein, each
party shall bear its own expenses in connection herewith.
Acknowledgment of Warranty Disclaimer. Buyer acknowledges and agrees
that
Buyer has had access to the assets, properties (real and personal,
owned and leased), permits, licenses, agreements, instruments, documents and
other contracts (oral and written), and the books and records related to the
Business and has had opportunity to inspect the same;
Buyer has decided to acquire the Assets and assume the Assumed
Liabilities based upon such access and inspection and the representations,
warranties and covenants of Seller specifically made in this Agreement;
accordingly the representations made by Seller in Section 3 hereof
(including the Schedules identified in Section 3 hereof) are the sole
representations and warranties made by Seller with respect to itself, its assets
and its liabilities and obligations, AND SELLER MAKES NO OTHER REPRESENTATIONS
OR WARRANTIES OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, EITHER HEREIN OR
OTHERWISE, AS TO THE ASSETS, PROPERTIES (REAL AND PERSONAL, OWNED AND LEASED),
AGREEMENTS, INSTRUMENTS, DOCUMENTS AND OTHER CONTRACTS (ORAL AND WRITTEN),
LIABILITIES AND/OR BUSINESS OF SELLER OR AS TO, THE TRANSACTIONS CONTEMPLATED
HEREBY OR ANY OTHER MATTER PERTAINING TO ANY OF THE FOREGOING;
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EXCEPT AS SET
FORTH IN SECTION 3 AND THE SCHEDULES REFERRED TO THEREIN, SELLER DISCLAIMS ALL
REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, AS TO THE CONDITION OF THE
ASSETS, PROPERTIES (REAL AND PERSONAL, OWNED AND LEASED), AGREEMENTS,
INSTRUMENTS, DOCUMENTS AND OTHER CONTRACTS (ORAL AND WRITTEN ), BUSINESS, AND
BUSINESS PROSPECTS OF SELLER, INCLUDING, WITHOUT LIMITATION, THE WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE; and
in furtherance and not limitation of the foregoing, Seller makes no
representation that Seller has, or that Buyer will have, all the licenses,
permits or other Authorizations or contracts required to carry on the operation
of the Business or that any of such licenses or permits or other Authorizations
or contracts are transferable, and Buyer shall be responsible for all such
matters.
Except as and to the extent set forth in this Agreement and the
certificates and schedules delivered under this Agreement, Seller hereby
disclaims all liability and responsibility for any statement or information made
or communicated in any way to Buyer or any agent, employee or representative
thereof (including, without limitation, any opinion, information or advice
provided by any officer, director, employee, agent, consultant or other
representative of Seller or any affiliate of Seller), and Buyer acknowledges
such disclaimer. No representation or warranty contained in Section 3 shall be
deemed to be untrue to the extent that Buyer had knowledge on the date hereof
that such representation or warranty was not correct as stated herein or, after
the date hereof and on or before the Closing Date, gave prior approval to an act
of the Seller or one of its subsidiaries which caused such representation or
warranty to be incorrect as stated herein.
For purposes of this Section 8.4: (i) Buyer shall be deemed to have had
knowledge of a fact, event or circumstance only if and when ▇▇▇▇ ▇▇▇▇▇▇ or
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ had such knowledge; and (ii) Buyer shall be deemed to have given
its approval to an act of Seller only if and when ▇▇▇▇ ▇▇▇▇▇▇ or ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
gave such approval.
Acknowledgment of Warranty Disclaimer. Seller acknowledges and agrees
that
The representations made by Buyer in Section 4 hereof are the sole
representations and warranties made by Buyer with respect to itself, its assets
and its liabilities and obligations, AND BUYER MAKES NO OTHER REPRESENTATIONS OR
WARRANTIES OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, EITHER HEREIN OR
OTHERWISE, AS TO THE ASSETS, PROPERTIES (REAL AND PERSONAL, OWNED AND LEASED),
AGREEMENTS, INSTRUMENTS, DOCUMENTS AND OTHER CONTRACTS (ORAL AND WRITTEN),
LIABILITIES AND/OR BUSINESS OF BUYER OR AS TO, THE TRANSACTIONS CONTEMPLATED
HEREBY OR ANY OTHER MATTER PERTAINING TO ANY OF THE FOREGOING;
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUYER DISCLAIMS
ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, AS TO THE CONDITION OF
THE ASSETS, PROPERTIES (REAL AND PERSONAL, OWNED AND LEASED), AGREEMENTS,
INSTRUMENTS, DOCUMENTS AND OTHER CONTRACTS (ORAL AND WRITTEN ), BUSINESS, AND
BUSINESS PROSPECTS OF BUYER, INCLUDING, WITHOUT LIMITATION, THE WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE; and
55
Except as and to the extent set forth in this Agreement and the
certificates and schedules delivered under this Agreement, Buyer hereby
disclaims all liability and responsibility for any statement or information made
or communicated in any way to Seller or any agent, employee or representative
thereof (including, without limitation, any opinion, information or advice
provided by any officer, director, employee, agent, consultant or other
representative of Buyer or any affiliate of Buyer), and Seller acknowledges such
disclaimer. No representation or warranty contained in Section 4 shall be deemed
to be untrue to the extent that Seller had knowledge on the date hereof that
such representation or warranty was not correct as stated herein or, after the
date hereof and on or before the Closing Date, gave prior approval to an act of
the Buyer or one of its subsidiaries which caused such representation or
warranty to be incorrect as stated herein.
Public Announcements. Prior to the Closing, neither Seller, Buyer nor
Guarantor shall make any public announcement or disclosure relating to the
transactions contemplated herein without the prior agreement of the other party
hereto, provided that each party shall use its best efforts to consult with the
other in advance of any disclosure required by law, but in such case the
agreement of the other party hereto shall not be required.
Notices. All notices or other communications permitted or required
under this Agreement shall be in writing and shall be sufficiently given if and
when hand delivered to the persons set forth below or if sent by documented
overnight delivery service or registered or certified mail, postage prepaid,
return receipt requested, or by telegram, telex or telecopy, receipt
acknowledged, addressed as set forth below or to such other person or persons
and/or at such other address or addresses as shall be furnished in writing by
any party hereto to the others. Any such notice or communication shall be deemed
to have been given as of the date received, in the case of personal delivery, or
on the date shown on the receipt or confirmation therefor in all other cases.
To Seller: With a copy to:
Judge Imaging Systems, Inc. Drinker ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ One ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇: ▇▇▇ ▇▇▇▇▇▇▇, Esquire Philadelphia, PA 19103-6996
Phone (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Esquire
To Buyer: With a copy to:
AOP Morristown Corp. ▇▇▇▇▇ Swados ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇ Phone (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇, Esquire
Assignment and Benefit.
No party shall assign this Agreement or any rights hereunder, or
delegate any obligations hereunder, without prior written consent of the other
party hereto. Subject to the foregoing, this Agreement and the rights and
obligations set forth herein shall inure to the benefit of, and be binding upon,
the parties hereto, and each of their respective successors and assigns.
This Agreement shall not be construed as giving any person, other than
the parties hereto and their permitted successors and assigns, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any of
the provisions herein contained, this Agreement and all provisions and
conditions hereof being intended to be, and being, for the sole and exclusive
benefit of such parties, and permitted successors and assigns and for the
benefit of no other person or entity.
Amendment, Modification and Waiver. The parties may amend or modify
this Agreement in any respect, provided that any such amendment shall be in
writing. The waiver by a party of any breach of any provision of this Agreement
shall not constitute or operate as a waiver of any other breach of such
provision or of any other provision hereof, nor shall any failure to enforce any
provision hereof operate as a waiver of such provision or of any other provision
hereof.
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▇▇▇▇ of Sale. To the extent required by applicable law or statute, this
Agreement shall constitute a ▇▇▇▇ of Sale.
Governing Law; Consent to Jurisdiction.
This Agreement is made pursuant to, and shall be construed and enforced
in accordance with, the internal laws of the Commonwealth of Pennsylvania (and
United States federal law, to the extent applicable), irrespective of the
principal place of business, residence or domicile of the parties hereto, and
without giving effect to otherwise applicable principles of conflicts of law.
Any legal action, suit or proceeding arising out of or relating to this
Agreement which is brought by Buyer shall be instituted in a court in the
Eastern District of Pennsylvania, and each party waives any objection which such
party may now or hereafter have to the laying of the venue of any such action,
suit or proceeding in, and irrevocably submits to the jurisdiction of, any such
court. Any and all service of process and any other notice in any such action,
suit or proceeding shall be effective against any party if made by certified or
registered mail, or by a nationally recognized overnight courier, directed to
Seller or Buyer, as the case may be, at the address provided for herein and
service so made shall be deemed to be completed upon actual receipt thereof, or
the next day following deposit of such notice with a nationally recognized
overnight courier.
Any legal action, suit or proceeding arising out of or relating to this
Agreement which is brought by Seller shall be instituted in a court in the
Western District of New York, and each party waives any objection which such
party may now or hereafter have to the laying of the venue of any such action,
suit or proceeding in, and irrevocably submits to the jurisdiction of, any such
court. Any and all service of process and any other notice in any such action,
suit or proceeding shall be effective against any party if made by certified or
registered mail, or by a nationally recognized overnight courier, directed to
Seller or Buyer, as the case may be, at the address provided for herein and
service so made shall be deemed to be completed upon actual receipt thereof, or
the next day following deposit of such notice with a nationally recognized
overnight courier.
Nothing herein contained shall be deemed to affect the right of any
party to serve process in any other manner permitted by law.
Section Headings and Defined Terms. The section headings contained
herein are for reference purposes only and shall not in any way affect the
meaning and interpretation of this Agreement. The terms defined herein and in
any agreement executed in connection herewith include the plural as well as the
singular and the singular as well as the plural, and the use of masculine
pronouns shall include the feminine and neuter. Except as otherwise indicated,
all agreements defined herein refer to the same as from time to time amended or
supplemented or the terms thereof waived or modified in accordance herewith and
therewith.
Invalidity/Severability. The invalidity or unenforceability of this
Agreement or any particular provision, or part of any provision, of this
Agreement in one jurisdiction shall not affect the validity or enforceability of
this Agreement or any particular provision or part of any provision of this
Agreement in any other jurisdiction and the invalidity or unenforceability of
any particular provision or part of any provision shall not affect the other
provisions or parts hereof, and this Agreement shall be construed in all
respects as if such invalid or unenforceable provisions or parts were omitted.
Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original; and any person may
become a party hereto by executing a counterpart hereof, but all of such
counterparts together shall be deemed to be one and the same instrument. It
shall not be necessary in making proof of this Agreement or any counterpart
hereof to produce or account for any of the other counterparts.
Entire Agreement. This Agreement, together with the agreements,
exhibits, schedules and certificates referred to herein or delivered pursuant
hereto, constitutes the entire agreement between the parties hereto with respect
to the purchase and sale of the Assets and the assumption of the Assumed
Liabilities and supersedes all prior agreements and understandings. The
submission of a draft of this Agreement or portions or summaries thereof does
not constitute an offer to purchase or sell the Assets, it being understood and
agreed that neither Buyer nor Seller shall be legally obligated with respect to
such a purchase or sale or to any other terms or conditions set forth in such
draft or portion or summary unless and until this Agreement has been duly
executed and delivered by all parties. Buyer's rights and remedies with respect
to the transactions contemplated by this Agreement and the other Transaction
Documents shall be controlled by and subject to the provisions of this
Agreement, and Buyer shall have no other rights or remedies except as set forth
in this Agreement.
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IN WITNESS WHEREOF, each of the parties hereto has duly
executed this Asset Purchase Agreement, under seal, all as of the date first
above written.
Attest JUDGE IMAGING SYSTEMS, INC.
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Secretary /s/ ▇▇▇▇▇▇ ▇. Judge, Jr., Chief Executive Officer
---------------------------- -------------------------
[Seal]
Attest THE JUDGE GROUP, INC.
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Secretary /s/ ▇▇▇▇▇▇ ▇. Judge, Jr., Chief Executive Officer
---------------------------- -------------------------
[Seal]
Attest AOP MORRISTOWN CORP.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Secretary /s/ ▇▇▇▇ ▇▇▇▇▇▇, President
---------------------- ----------------
[Seal]
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