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EXHIBIT 10.30
ASSET PURCHASE AGREEMENT
BY AND BETWEEN
ISN SOFTWARE CORPORATION
AND
EARTHCARE COMPANY
EFFECTIVE AS OF OCTOBER 31, 2000
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TABLE OF CONTENTS
Page
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1. DEFINITIONS.........................................................1
1.1 GENERAL DEFINITIONS.............................................1
2. SALE OF ASSETS; ASSUMPTION OF CERTAIN LIABILITIES...................3
2.1 AGREEMENT TO PURCHASE AND SELL..................................3
(a) PERSONAL PROPERTY.............................................3
(b) SCHEDULED CONTRACTS...........................................4
(c) INTANGIBLE ASSETS.............................................4
(d) GOODWILL......................................................4
(e) ACCOUNTS RECEIVABLE...........................................4
(f) PREPAID EXPENSES AND CURRENT ASSETS...........................4
(g) PERMITS.......................................................4
(h) NAME..........................................................4
(i) INSURANCE PROCEEDS, WARRANTY RIGHTS...........................4
(j) OTHER INTANGIBLES.............................................4
(k) OTHER PROPERTY................................................5
2.2 EXCLUDED ASSETS.................................................5
2.3 PURCHASE PRICE..................................................5
2.4 PAYMENT.........................................................5
2.5 ALLOCATION......................................................5
2.6 ASSUMPTION OF LIABILITIES.......................................5
2.7 FURTHER ASSURANCES..............................................6
3. REPRESENTATIONS AND WARRANTIES OF THE SELLERS.......................6
3.1 ORGANIZATION; QUALIFICATION.....................................6
3.2 AUTHORITY RELATIVE TO THIS AGREEMENT............................6
3.3 STOCKHOLDER VOTE................................................6
3.4 SUBSIDIARIES....................................................6
3.5 CONSENTS AND APPROVALS..........................................6
3.6 NO VIOLATIONS...................................................7
3.7 TITLE TO AND CONDITION OF ASSETS AND PROPERTY...................7
3.8 INVESTIGATION OR LITIGATION.....................................7
3.9 TAXES...........................................................7
3.10 NO BROKERS....................................................7
3.11 ACCOUNTS......................................................7
3.12 INSURANCE.....................................................8
3.13 CONTRACTS; ORAL COMMITMENTS; DEFAULTS.........................8
3.14 CORPORATE MATTERS.............................................8
3.15 PERMITS.......................................................8
3.16 COMPLIANCE WITH LAWS..........................................8
3.17 NAME..........................................................8
3.18 DISCLOSURE....................................................8
3.19 PLANS.........................................................9
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER.........................9
4.1 ORGANIZATION....................................................9
4.2 AUTHORITY RELATIVE TO THIS AGREEMENT............................9
4.3 CONSENTS AND APPROVALS.........................................10
(i)
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5. ADDITIONAL AGREEMENTS..............................................10
5.1 INVESTIGATION OF BUSINESS AND PROPERTIES.......................10
5.2 ASSURANCES.....................................................10
5.3 CONSENTS.......................................................10
5.4 AGREEMENT REGARDING BROKERS....................................10
5.5 INFORMATION FOR TAX RETURNS....................................10
5.6 PAYMENT OF LIABILITIES.........................................10
5.7 EMPLOYEES......................................................11
5.8 NONCOMPETITION.................................................11
6. CLOSING............................................................11
6.1 CLOSING DATE...................................................11
7. SURVIVAL AND INDEMNIFICATION.......................................11
7.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.....................11
7.2 INDEMNITY......................................................12
7.3 NO THIRD PARTY BENEFICIARIES...................................12
7.4 INDEMNIFICATION NOTICE.........................................12
7.5 OFFSET.........................................................13
8. GENERAL PROVISIONS AND OTHER AGREEMENTS............................13
8.1 NOTICES........................................................13
8.2 FEES AND EXPENSES..............................................14
8.3 INTERPRETATION.................................................14
8.4 COUNTERPARTS...................................................14
8.5 MISCELLANEOUS..................................................14
LIST OF EXHIBITS
Exhibit A - Form of Assumption Agreement
Exhibit B - Form of Xxxx of Sale
Exhibit C - Form of Promissory Note
Exhibit D - Purchase Price Allocation
LIST OF SCHEDULES
Disclosure Schedules
Schedule 2.1(a) - Personal Property
Schedule 2.1(b) - Scheduled Contracts
Schedule 2.1(c) - Intangible Assets
Schedule 2.2 - Excluded Assets
Schedule 2.6(a) - Assumed Obligations
Schedule 3.5 - Consents and Approvals
Schedule 3.8 - Investigation or Litigation
Schedule 3.11 - Accounts
Schedule 3.12 - Insurance
Schedule 3.13 - Contracts; Oral Commitments; Defaults
Schedule 3.15 - Permits of Seller
Schedule 3.19 - Plans
(ii)
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ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (this "Agreement") is made effective as
of October 31, 2000, by and among ISN SOFTWARE CORPORATION, a Delaware
corporation ("Purchaser"), and EARTHCARE COMPANY ("Seller").
In consideration of the mutual covenants and agreements contained herein, the
parties covenant and agree as follows:
1. DEFINITIONS
1.1 GENERAL DEFINITIONS. Unless otherwise stated in this Agreement, the
following terms shall have the following meanings:
"ACCOUNTS": As defined in Section 2.1(e) hereof.
"AFFILIATE": Any Person that, directly or indirectly, controls, or is
controlled by or under common control with, another Person. For the purposes of
this definition, "control" (including the terms "controlled by" and "under
common control with"), as used with respect to any Person, means the power to
direct or cause the direction of the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities or by
contract or otherwise.
"ASSETS": As defined in Section 2.1 hereof.
"ASSUMED OBLIGATIONS": As defined in Section 2.6(a) hereof.
"ASSUMPTION AGREEMENT": The Assumption Agreement in the form of Exhibit
A attached hereto.
"XXXX OF SALE": The Xxxx of Sale in the form of Exhibit B attached
hereto.
"BUSINESS": Means the business acquired or to be acquired by Purchaser
pursuant to the Operative Documents, consisting of the Assets and the Assumed
Obligations (but not including the Excluded Assets), and which may be more
particularly described as the software development, marketing, sale, licensing,
maintenance and service operations conducted immediately prior to the Closing
Date by Seller (i) in its IS Networld operation, or (ii) in connection with the
"OS2K" software, and any operations conducted by Seller or any of its Affiliates
that are associated with or similar to either of the foregoing.
"CLOSING": As defined in Section 6.1 hereof.
"CLOSING DATE": As defined in Section 6.1 hereof.
"CODE": The Internal Revenue Code of 1986, as amended.
"DAMAGES": As defined in Section 7.2 hereof.
"DEBT": All obligations for borrowed money.
ASSET PURCHASE AGREEMENT - PAGE 1
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"DISCLOSURE SCHEDULES": The package of disclosure schedules to this
Agreement delivered by Seller to Purchaser prior to the date hereof (and as
subsequently supplemented and amended) which are approved by Purchaser (with
reservation of all rights with respect thereto) and incorporated by reference to
the Section of this Agreement to which each such schedule relates.
"EXCLUDED ASSETS": As defined in Section 2.2 hereof.
"GOVERNMENTAL BODY": Any court or any federal, state, municipal or
other governmental department, commission, board, bureau, agency, authority or
instrumentality, domestic or foreign.
"INDEMNIFICATION CLAIM": As defined in Section 7.4 hereof.
"INDEMNIFICATION NOTICE": As defined in Section 7.4 hereof.
"INDEMNITOR": As defined in Section 7.4 hereof.
"INTANGIBLE ASSETS": As defined in Section 2.1(c) hereof.
"LIEN": All mortgages, deeds of trust, claims, liens, security
interests, pledges, leases, conditional sale contracts, rights of first refusal,
options, charges, liabilities, obligations, agreements, easements,
rights-of-way, powers of attorney, limitations, reservations, restrictions and
other encumbrances of any kind.
"MATERIAL ADVERSE EFFECT": Any change (individually or in the
aggregate) in the general affairs, management, business, goodwill, results of
operations, condition (financial or otherwise), assets, liabilities or prospects
(whether or not the result thereof would be covered by insurance) that will or
can reasonably be expected to result in a cost, expense, charge, liability, loss
of revenue or diminution in value equal to or greater than $250,000.
"OPERATIVE DOCUMENTS": This Agreement, the Assumption Agreement, the
Xxxx of Sale, the License Agreement, the Promissory Note and all other
agreements, instruments, documents, schedules and certificates executed and
delivered by or on behalf of Seller or Purchaser at or before the Closing
pursuant to this Agreement.
"ORDER": Any order, writ, injunction, decree, judgment, award or
determination of any Governmental Body.
"PERMITS": All permits, authorizations, certificates, approvals,
registrations, variances, exemptions, rights-of-way, franchises, privileges,
immunities, grants, ordinances, licenses and other rights of every kind and
character (a) under any (1) federal, state, local or foreign statute, ordinance
or regulation, (2) Order or (3) contract with any Governmental Body or (b)
granted by any Governmental Body.
"PERSON": An individual, partnership, joint venture, corporation,
company, limited liability company, bank, trust, unincorporated organization,
Governmental Body or other entity or group.
"PERSONAL PROPERTY": As defined in Section 2.1(a) hereof.
"PLANS": As defined in Section 3.20 hereof.
"PREMISES": All locations of Seller at which a portion of the Business
is conducted.
ASSET PURCHASE AGREEMENT - PAGE 2
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"PROCEEDING": Any action, order, claim, suit, proceeding, litigation,
investigation, inquiry, review or notice.
"PROMISSORY NOTE": That certain Promissory Note of Purchaser in favor
of Seller in the original principal amount of $3,000,000.00, substantially in
the form of Exhibit C, attached hereto.
"PURCHASE PRICE": As defined in Section 2.3 hereof.
"PURCHASER INDEMNITEES": As defined in Section 7.2(a) hereof.
"SCHEDULED CONTRACTS": As defined in Section 2.1(b) hereof.
"SUBSIDIARY" or "SUBSIDIARIES" with respect to any corporation shall
mean any other corporation of which at least a majority of the securities having
by their terms ordinary voting power to elect a majority of the Board of
Directors of such other corporation is at the time directly or indirectly owned
or controlled by such first corporation, or by such first corporation and one or
more of its Subsidiaries.
"TAX OBLIGATIONS": Any Taxes which are attributable or related to the
assets or the Business of Seller for any periods ending on or before the Closing
Date or which may be applicable because of the Transactions.
"TAXES": Any federal, state, local or foreign income, sales, excise,
real or personal property or other taxes, assessments, fees, levies, imposts,
duties, deductions or other charges of any nature whatsoever (including, without
limitation, interest and penalties) imposed by any law, rule or regulation.
"THREATENED": Any matter or thing will be deemed to have been
Threatened when used herein with respect to any party if that party has received
notice, in writing, from the Person to whom the threat is attributable, or such
Person's agents, which makes specific reference to and clearly identifies the
matter or thing being threatened.
"TRANSACTION" OR "TRANSACTIONS": The acquisition of the Assets and the
performance of the other covenants and transactions described in this Agreement.
"TRANSACTION EXPENSES": The expenses incurred in connection with the
preparation, negotiation, execution and performance of this Agreement and the
Transactions, including all fees and expenses of counsel and representatives.
Other defined terms shall have the meanings ascribed to such terms elsewhere
herein.
2. SALE OF ASSETS; ASSUMPTION OF CERTAIN LIABILITIES
2.1 AGREEMENT TO PURCHASE AND SELL. Subject to the applicable terms and
conditions of this Agreement, at the Closing, Seller shall sell, transfer,
assign, convey and deliver to Purchaser, and Purchaser shall purchase from
Seller, all of the assets other than the Excluded Assets (such assets being
collectively referred to as the "Assets") used or useable in connection with the
Business (including, without limitation, those assets set forth below), free and
clear of all Liens:
(a) PERSONAL PROPERTY. All tangible personal property of every
kind and description located either on the Premises or elsewhere
insofar as any of the foregoing relate to the Business (the
ASSET PURCHASE AGREEMENT - PAGE 3
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"Personal Property"). The Personal Property includes, without
limitation, all of the items listed in Schedule 2.1(a) hereto.
(b) SCHEDULED CONTRACTS. The contracts and agreements with
third parties related to the business, including, without limitation,
those described on Schedule 2.1(b) hereto (the "Contracts") and all
rights (including rights of refund and offset), privileges, deposits,
sums of money due, claims, causes of action and options relating or
pertaining to the Contracts. All of the material Contracts are
described on Schedule 2.1(b).
(c) INTANGIBLE ASSETS. All software used in the conduct of the
business (including, without limitation, "TrainTrac," "ISNetworld" and,
subject to the rights granted to Seller in the License Agreement,
"OS2K", "XxxxxXxxxxx.xxx" and "XxxxxxxxxxXxxx.xxx"), copyrights,
trademarks, trade secrets, trade names, domain names, telephone
numbers, data, service marks, licenses, franchises, distributorships,
labels, logos, covenants by others not to compete, rights, privileges
and any registrations or applications for registrations of the
foregoing, and any right to recovery for infringement thereof
(including past infringement) and any and all goodwill associated
therewith or connected with the use thereof and symbolized thereby,
including, without limitation, those described on Schedule 2.1(c)
hereto (the "Intangible Assets"); provided, however, that Purchaser
shall not acquire any rights to the names "SeptiShield" and
"RestaurantCare".
(d) GOODWILL. The goodwill of the Business or associated with
the Intangible Assets.
(e) ACCOUNTS RECEIVABLE. All accounts receivable of Seller
arising in connection with the Business and all other rights of Seller
to payment for services rendered, including, without limitation, those
which are not evidenced by instruments, whether or not they have been
earned by performance or have been written off or reserved against as a
bad debt or doubtful account in any financial statement, together with
all instruments representing any of the foregoing, and all rights,
title, security and guaranties in favor of Seller with respect to any
of the foregoing (the "Accounts").
(f) PREPAID EXPENSES AND CURRENT ASSETS. All prepaid rentals,
other prepaid expenses, bonds and deposits, and other current assets
relating to any of the Assets or the Business.
(g) PERMITS. All Permits used or useable in the conduct of the
Business.
(h) NAME. The names "AllenTate," "ISNetworld," "Industrial
Services Networld," "ISN," "TrainTrac," "OS2K" and all other names used
in connection with the Business, and all derivatives of any of same.
(i) INSURANCE PROCEEDS, WARRANTY RIGHTS. All insurance
proceeds and insurance claims of Seller relating to the Business or all
or any part of the Assets and, to the extent transferable, the benefit
of and the right to enforce the covenants and warranties, if any, that
Seller are entitled to enforce with respect to the Business or all or
any part of the Assets against Seller' predecessors in title to the
Assets.
(j) OTHER INTANGIBLES. All right, title and interest of Seller
in, to and under all rights, privileges, claims, causes of action and
options relating or pertaining to the Business or the foregoing Assets.
ASSET PURCHASE AGREEMENT - PAGE 4
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(k) OTHER PROPERTY. All other or additional privileges,
rights, interests, properties and assets of Seller of every kind and
description and wherever located, that are used or intended for use in
connection with, or that are necessary to the continued conduct of, the
Business as presently being conducted.
2.2 EXCLUDED ASSETS. Notwithstanding those assets listed in Section 2.1
hereto, the Assets shall specifically exclude those assets identified in
Schedule 2.2 hereto (the "Excluded Assets").
2.3 PURCHASE PRICE. The total purchase price for the Business and
Assets (the "Purchase Price") shall be Three Million Dollars ($3,000,000.00);
provided, however, that in the event Seller does not continue actively to use
the OS2K software in its business operations through December 31, 2001, then the
Purchase Price shall automatically be reduced from $3,000,000 to $2,000,000. The
Purchase Price shall be payable as provided in Section 2.4, below.
2.4 PAYMENT. At the Closing, Purchaser shall deliver to Seller, or to
such Person as seller shall direct, the Promissory Note in the principal amount
of $3,000,000.00. In the event the purchase price is reduced to $2,000,000 in
accordance with Section 2.3, above, and Purchaser shall have already paid at
least $2,000,000 in principal under the Promissory Note, then Seller shall pay
to Purchaser the amount by which such principal payments exceeded $2,000,000.
2.5 ALLOCATION. The Purchase Price shall be allocated among the Assets
as set forth on Exhibit E attached hereto. Seller and Purchaser agree that they
will not take any position on their income tax returns or on any other document
that is inconsistent with such allocation, and the parties shall duly prepare
and timely file such returns under the Code to report such allocation.
2.6 ASSUMPTION OF LIABILITIES.
(a) Subject to and upon all of the terms and conditions of
this Agreement, at the Closing, Purchaser shall assume and agree to
pay, perform and discharge the obligations and liabilities of Seller
(the "Assumed Obligations") under the terms of those Scheduled
Contracts specifically set forth on Schedule 2.6(a) hereto to the
extent that such Scheduled Contracts have not been performed at the
time of the Closing and are not in default;
(b) Except as provided in Section 2.6(a), Purchaser will not
assume or agree to pay, perform or discharge, and shall not be
responsible for, any other liabilities or obligations of Seller,
whether accrued, absolute, contingent or otherwise, including without
limitation, liabilities or obligations based on, arising out of, or in
connection with:
(i) any expenses incurred by Seller or its Affiliates
in connection with the negotiation, preparation, execution and
performance of the Transactions;
(ii) any events or circumstances occurring prior to
the Closing Date, including, without limitation, any
obligation or liability of Seller or its Affiliates arising
out of or relating to the Assumed Liabilities which are
payable or performable prior to Closing;
(iii) any Taxes which are attributable or relate to
the Assets or the Business or Seller, for any periods ending
on or before the Closing Date, or which may be applicable
because of Seller's sale of the Business or any of the Assets
to Purchaser;
ASSET PURCHASE AGREEMENT - PAGE 5
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(iv) any lease obligations or indebtedness of Seller
or its Affiliates;
(v) any unlicensed or unauthorized use by Seller or
its Affiliates of any trademark or other intellectual property
rights;
(vi) any note, account payable or other obligation to
any person, entity or Governmental Body, except to the extent
expressly assumed herein;
(vii) any claims or conditions arising under any
federal, state or foreign statutes, laws, ordinances,
regulations, rules, permits, judgments, orders or decrees
attributable or relating to the Assets (including, without
limitation, the operation thereof) or the Business or Seller
or its Affiliates.
2.7 FURTHER ASSURANCES. At the Closing, and at all times thereafter as
may be reasonably necessary, Seller and its Affiliates shall execute and deliver
to Purchaser such instruments of transfer as shall be reasonably necessary or
appropriate to vest in Purchaser title of the type specified herein to the
Assets and to otherwise comply with the terms, purposes and intent of this
Agreement.
3. REPRESENTATIONS AND WARRANTIES OF THE SELLER
Seller hereby represents and warrants to Purchaser that the following
are true and correct as of the date of this Agreement and will be true and
correct (without limitation) through the Closing Date, regardless of what
investigations, if any, Purchaser shall have made prior hereto or prior to the
Closing:
3.1 ORGANIZATION; QUALIFICATION. Seller is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. Seller has full corporate power and authority to own and lease all of
the properties and assets it now owns and leases and to carry on its business as
now being conducted.
3.2 AUTHORITY RELATIVE TO THIS AGREEMENT. Seller has full power and
authority (corporate and otherwise) to execute, deliver and perform this
Agreement (including, without limitation, execution, delivery and performance of
the Operative Documents to which it is a party) and to consummate the
Transactions. The execution and delivery by Seller of this Agreement, and the
consummation of the Transactions, have been duly and validly authorized by the
Board of Directors of Seller, and no other corporate proceedings on the part of
Seller are necessary with respect thereto. This Agreement has been duly and
validly executed and delivered by Seller, and constitutes a legal, valid and
binding obligation of Seller, enforceable against it in accordance with its
terms. Seller will take or cause to be taken all corporate action that is
necessary to complete the Transactions to be completed by Seller pursuant to
this Agreement.
3.3 STOCKHOLDER VOTE. No vote of the stockholders of Seller shall be
required to approve the transactions contemplated in the Operative Documents.
Except as set forth in Schedule 3.5, there is no outstanding subscription,
contract, convertible or exchangeable security, option, warrant, call or other
right with the right to vote on, or otherwise approve, any of the
above-referenced matters.
3.4 SUBSIDIARIES. None of the Assets consists of the stock of, or other
equity interest in, any Subsidiaries or other business entity.
3.5 CONSENTS AND APPROVALS. Except as set forth in Schedule 3.5, the
execution, delivery and performance by the Seller of this Agreement and the
consummation of the Transactions by it requires no consent,
ASSET PURCHASE AGREEMENT - PAGE 6
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approval, order or authorization of, action by or in respect of, or registration
or filing with, any Governmental Body or other Person.
3.6 NO VIOLATIONS. The execution, delivery and performance of this
Agreement by Seller, the consummation by Seller of the Transactions and
compliance by Seller with the provisions hereof does not and will not (a)
conflict with or result in any breach or violation of any provision of the
Articles of Incorporation or Bylaws of Seller, (b) result in a default, or give
rise to any right of termination, cancellation or acceleration or loss of any
material benefit under any of the provisions of any note, bond, mortgage,
indenture, license, trust, agreement, lease or other instrument or obligation to
which Seller is a party or by which either Seller may be bound, (c) result in
the creation or imposition of any Lien on any of the property of Seller, (d)
violate any Order, statute, rule or regulation applicable to Seller, or (e)
violate any territorial restriction on the Business or Seller or any
noncompetition or similar arrangement.
3.7 TITLE TO AND CONDITION OF ASSETS AND PROPERTY. Except as
specifically set forth in the Disclosure Schedule, Seller has good and
marketable title to all Assets and such Assets are free and clear of all Liens.
Upon consummation of the Transactions, Purchaser will own the Assets free and
clear of all Liens. The Assets constitute all assets and properties, real,
personal, tangible and intangible that are used or useable in the conduct of the
Business as presently being conducted.
3.8 INVESTIGATION OR LITIGATION. Except as set forth on Schedule 3.8,
there is no Proceeding pending or Threatened against, relating to or affecting
the Assets. Seller is not subject to any currently existing Proceeding by any
Governmental Body. There is no basis for the assertion of any Proceeding by any
Governmental Body or any Person regarding any violation of federal or state
laws.
3.9 TAXES. All Taxes that are due and payable by Seller, other than
those presently payable without penalty or interest, have been timely paid, and
Seller has timely filed (and, through the Closing Date, will timely file) all
Tax reports and returns required by law to be filed by it. All such Tax reports
and returns are true, complete and correct in all respects with regard to Seller
for the periods covered thereby. Seller is not delinquent in the payment of any
Tax. There is no Tax deficiency asserted against Seller, and there is no unpaid
assessment, proposal for additional Taxes, deficiency or delinquency in the
payment of any of the Taxes of Seller or any violation of any Tax law that could
be asserted by any taxing authority. There are no Tax Liens upon any properties
or assets of Seller nor has notice been given of any event which could lead to
any such Lien. No Internal Revenue Service, state or local, audit, investigation
or Proceeding of Seller is pending or Threatened, and the results of any
completed audits are properly reflected in the financial statements. Seller has
not granted any extension to any taxing authority of the limitation period
during which any Tax liability may be asserted. Seller has not committed any
violation of any Tax laws. All monies required for the payment of Taxes not yet
due and payable with respect to the operations of Seller through and including
the Closing Date have been approved, reserved against and entered upon the books
and financial statements. All monies required to be withheld by Seller from
employees, if any, independent contractors, or others or collected from
customers for income taxes, social security and unemployment insurance taxes and
sales, excise and use taxes, and the portion of any such taxes to be paid by
Seller to governmental agencies or set aside in accounts for such purpose have
been approved, reserved against or paid, and entered upon the books and
financial statements. Consummation of the Transactions will not result in any
Tax Obligations on the Assets.
3.10 NO BROKERS. Seller has not employed any broker, agent or finder or
incurred any liability for any brokerage fees, commissions or finders' fees in
connection with the Transactions.
3.11 ACCOUNTS. Schedule 3.11 of the Disclosure Schedule contains a
complete and accurate list of all Seller's Accounts showing the name of each
account debtor and the amount due from each by invoice number
ASSET PURCHASE AGREEMENT - PAGE 7
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and date. All of such Accounts have arisen in the ordinary course of business
for services rendered. Except as set forth on the Disclosure Schedule, Seller is
not aware of any event or condition with respect to a specific customer that
causes it to believe that any such Account will not be collected in full in due
course without resort to litigation and will not be subject to counterclaim or
setoff.
3.12 INSURANCE. All the insurance policies maintained by the Seller in
connection with the Business are in full force and effect, all insurance
premiums have been timely paid to date, and no such policy will be canceled
prior to Closing. A description of each of the Seller's insurance policies
(including, without limitation, insurance providing benefits for employees) is
attached hereto as Schedule 3.12. The insurance policies set forth in the
Disclosure Schedule provide adequate coverage, less deductibles, against the
risks involved in the Business and operation of the Assets.
3.13 CONTRACTS; ORAL COMMITMENTS; DEFAULTS. Schedule 3.13 sets forth a
true and correct list of all contracts of the Seller (or summaries of all oral
commitments) that are material to the Business and, Seller has provided copies
of such material contracts to Purchaser prior to the date hereof. There exists
no breach or default under any of such contracts.
3.14 CORPORATE MATTERS. The Board of Directors of Seller, has approved
the execution and delivery of this Agreement and the consummation of the
Transactions contemplated hereby in accordance with applicable law.
3.15 PERMITS. Schedule 3.15 lists all Permits held by Seller and used
or useable in the conduct of the Business. Such Permits are valid, and Seller
has not received any notice that any Governmental Body intends to cancel,
terminate or not renew any such Permit. Seller holds all licenses, franchise,
permits and other governmental authorizations the absence of any of which could
have a material adverse effect on the Business. The Business is not being
conducted in violation of any statute, law, ordinance, regulation, rule or
Permit of any Governmental Body or any Order.
3.16 COMPLIANCE WITH LAWS. Seller has complied with and is in
compliance with all federal, state, local and foreign statutes, laws,
ordinances, regulations, rules, permits, judgments, orders or decrees applicable
to it or any of its properties, assets, operations and businesses, and there
does not exist any basis for any claim or default under or violation of any such
statute, law, ordinance, regulation, rule, judgment, order or decree.
3.17 NAME. The use of the names "OS2K," "TrainTrac," "AllenTate,"
"ISNetworld," "ISN," and "Industrial Services Networld" do not infringe upon the
right of any third party.
3.18 DISCLOSURE.
(a) The Seller has delivered or made available to Purchaser
complete and accurate copies of all documents listed on the schedules
delivered as a part hereof and all other information requested by
Purchaser pursuant hereto. No representation or warranty of the Seller
contained in this Agreement or any statement in the schedules hereto
contains any untrue statement. No representation or warranty of the
Seller contained in this Agreement or statement in the schedules hereto
omits to state a material fact necessary in order to make the
statements herein or therein, in light of the circumstances under which
they were made, not misleading.
(b) There is no fact known to Seller which has specific
application to the Purchaser and which could have a Material Adverse
Effect on the Business or on Seller but which has not been set forth in
this Agreement or the schedules hereto; provided, however, that
Purchaser is aware of the current state
ASSET PURCHASE AGREEMENT - PAGE 8
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of development of the ISNetworld software product, and agrees that
Seller shall have no responsibility or liability to develop further
such product.
(c) The disclosures in the schedules hereto shall relate only
to the representations and warranties in the Section of this Agreement
to which they expressly relate and to no other representation or
warranty in this Agreement.
(d) In the event of any inconsistency between the statements
in the body of this Agreement and those in the schedules hereto (other
than an exception expressly set forth as such in the schedules in
relation to a specifically identified representation or warranty),
those in this Agreement shall control.
3.19 PLANS. Schedule 3.19 sets forth a complete and accurate
description of all employee benefit plans and all collective bargaining
agreements relating to employee benefits with respect to which Seller or any of
its predecessors contributes or is required to contribute and has or may incur
any future or contingent obligations, including, without limitation, all plans,
agreements or arrangements relating to deferred compensation, pension, profit
sharing, retirement income or other benefits, stock purchase and stock option
plans, bonuses, severance arrangements, health benefits, insurance benefits,
welfare benefits and all other material employee benefits or fringe benefits
(collectively referred to as the "Plans").
Except as set forth in Schedule 3.19: (a) true, correct and complete
copies of each Plan, all related Summary Plan Descriptions and material employee
communications, related trust agreements or annuity contracts (or any other
funding instruments), Annual Reports on the Form 5500 series required to be
filed with any governmental agency for each Plan for the two most recent Plan
years and the most recent actuarial reports and trustee's reports relating
thereto (if applicable) have been furnished to the Purchaser; (b) each Plan has
been administered and operated in accordance with its terms and applicable law,
and to the extent applicable, each Plan is "qualified" within the meaning of
Section 401(a) of the Code and each related trust is exempt from tax under
Section 501(a) of the Code; (c) each qualified Plan has been amended to conform
to the requirements of all applicable federal statutes and regulations, and no
liability under any applicable law has been incurred with respect to any Plan;
(d) all reports and disclosures relating to such Plans required to be filed with
any agency of the federal, state or local government or distributed to employees
or beneficiaries have been or will be properly and timely filed or distributed
in compliance with applicable law; (e) Seller does not maintain and has not been
maintaining a "defined contribution plan" or has incurred any liability with
respect to such a plan; and (f) full payment has been made of all amounts which
were required under the terms of any of the Plans to have been paid as a
contribution to such Plan.
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Seller that the following
are true and correct as of the date of this Agreement and will be true and
correct through the Closing Date, regardless of what investigations, if any,
Seller shall have made prior hereto or prior to the Closing:
4.1 ORGANIZATION. Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
4.2 AUTHORITY RELATIVE TO THIS AGREEMENT. Purchaser has full power and
authority (corporate and otherwise) to execute, deliver and perform this
Agreement (including, without limitation, execution, delivery and performance of
the Operative Documents to which it is a party) and to consummate the
Transactions. The execution and delivery by Purchaser of this Agreement, and the
consummation of the Transactions, have been
ASSET PURCHASE AGREEMENT - PAGE 9
13
duly and validly authorized by the Board of Directors of Purchaser and no other
corporate proceedings on the part of Purchaser are necessary with respect
thereto.
4.3 CONSENTS AND APPROVALS. Except as set forth in or otherwise
required by this Agreement or the Operative Documents, the execution, delivery
and performance by Purchaser of this Agreement and the consummation of the
Transactions by it requires no consent, approval, order or authorization of,
action by or in respect of, or registration or filing with, any Governmental
Body or other Person.
5. ADDITIONAL AGREEMENTS
5.1 INVESTIGATION OF BUSINESS AND PROPERTIES. No investigations by the
Purchaser or its employees, representatives or agents shall reduce or otherwise
affect the obligation or liability of the Seller with respect to any
representations, warranties, covenants or agreements made herein or in an
exhibit, schedule or other certificate, instrument, agreement or document
(including the Disclosure Schedule), executed or delivered in connection with
this Agreement.
5.2 ASSURANCES. At any time after the Closing Date, if any further
action is necessary, proper or advisable to carry out the purposes of this
Agreement, then, as soon as is reasonably practicable, each party to this
Agreement shall take, or cause its proper officers to take, such action. Each of
the parties hereto further agrees that it will cooperate with the other after
the consummation of the Transactions for the purpose of providing Purchaser with
the information and access to information necessary to ensure Purchaser with a
reasonably smooth transition into the ownership of the Business.
5.3 CONSENTS. To the extent that the assignment by Seller of any
Scheduled Contract or Permit to be assigned hereunder shall require the consent
or approval of another party thereto, the consummation of the Transactions shall
not constitute an assignment or attempt at an assignment thereof if such
assignment or attempted assignment would constitute a breach thereof. If any
third party consent with respect to any one or more Scheduled Contract or Permit
is not obtained at or prior to Closing, each party hereto agrees to take
whatever action may be necessary to provide Purchaser with the uninhibited
benefits of such Scheduled Contracts and Permits, subject to the assumption by
the Purchaser of Seller's obligations thereunder.
5.4 AGREEMENT REGARDING BROKERS. Each party agrees that it will pay or
dispute, and hold the other party harmless from, any claims of brokers or others
for finder's or brokerage fees asserted as a result of representations by such
party to such brokers or others, regardless of whether the existence of such
brokers or others are disclosed herein.
5.5 INFORMATION FOR TAX RETURNS. Seller shall cooperate with Purchaser
after the Closing by providing Purchaser, without any additional consideration
but at the expense of Purchaser, promptly upon request, such records and other
information regarding the Assets and/or the Business as may reasonably be
requested from time to time by Purchaser in connection with the preparation or
audit of its federal, state and local income and other Tax returns, and audits,
disputes, refund claims or litigation relating thereto. In such connection,
Seller will afford the Purchaser's representatives, including independent tax
advisers and others, access to books and records or relating to the Assets.
5.6 PAYMENT OF LIABILITIES . Following the Closing, Seller shall
promptly pay or otherwise satisfy all claims or liabilities relating to the
Assets or the Business of Seller incurred through the Closing Date, other than
the Assumed Obligations.
ASSET PURCHASE AGREEMENT - PAGE 10
14
5.7 EMPLOYEES. Purchaser has the right to enter into negotiations with
any or all of the employees and independent contractors of Seller for their
continued employment with Purchaser from and after the Closing Date at
compensation levels as Purchaser and such employees or contractors shall agree.
Purchaser shall have no liability whatsoever with respect to any matter relating
to the employment or contracting of such persons by Seller prior to the Closing
Date.
5.8 NONCOMPETITION.
(a) During the period commencing with the Closing Date and
ending on the second anniversary thereof, Seller and its Affiliates
shall not, as a partner, trustee, director, officer, employee,
shareholder, option holder, lender of money, guarantor or consultant,
be engaged, directly or indirectly, in any business that is in the
Business within any state in which the Business is currently conducted.
In addition, until the second anniversary of the Closing Date, Seller
and its Affiliates shall not, directly or indirectly, divert or attempt
to divert from the Purchaser any business whatsoever by influencing or
attempting to influence any Person which is a customer of Seller
immediately prior to the Closing or from whom Seller are soliciting
business, immediately prior to the Closing. The provisions of this
Section 5.8(a) shall apply throughout the United States and its
territories. Notwithstanding the preceding sentence, however, in the
event that any court of competent jurisdiction shall determine that the
scope of this Section 5.8(a) is overly broad or unenforceable in any
way, it is the intent of the parties that such provisions be reformed
such that the scope of the otherwise unenforceable provision is as
great as may be permissible under applicable law.
(b) Until the second anniversary of the Closing, Seller
covenants and agrees not to, directly or indirectly, solicit, take
away, hire, employ or endeavor to employ any person who is an employee
of Purchaser or any Affiliate of Purchaser or, directly or indirectly,
divert or attempt to divert from Purchaser or any Affiliate of
Purchaser any business whatsoever by influencing or attempting to
influence any person or business entity which is a customer of, or has
a similar business relationship with, Purchaser or any Affiliate of
Purchaser or from which Purchaser or any Affiliate of Purchaser is
soliciting business.
(c) Seller recognizes that the restrictions set forth in this
Section 5.8 are required for the reasonable protection of Purchaser and
its investment in the Business, and as such, each of Seller expressly
acknowledges that such restrictions are fair and reasonable for that
purpose and that money damages alone will be an inadequate remedy for
any breach or violation of the provisions of this Section 5.8. In
addition, Seller agrees that in addition to all of the remedies
provided for in this Agreement for breaches thereof, Purchaser shall be
entitled, as a matter of right, to injunctive relief, including
specific performance, with respect to any breach or violation of the
provisions of this Section 5.8.
6. CLOSING
6.1 CLOSING DATE. The closing for of the Transactions contemplated by
this Agreement (the "Closing") shall take place at the offices of Seller
effective as of October 31, 2000 (the "Closing Date").
7. SURVIVAL AND INDEMNIFICATION
7.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Seller shall survive the Closing and any investigation on the part
of the parties hereto and shall continue in full force and effect for a period
of two (2) years after the Closing Date; provided, however, that (i) the
representations and warranties in Section 3.9 shall survive until the expiration
of the statutory period of limitations for assessment of
ASSET PURCHASE AGREEMENT - PAGE 11
15
taxable year of Seller which begins before the Closing Date, and (ii) the
representations and warranties in Sections 3.19 shall survive indefinitely. The
covenants and agreements of the parties set forth in this Agreement shall not be
affected by the expiration of any representation or warranty pursuant to this
Section 7.1 and shall survive indefinitely.
7.2 INDEMNITY.
(a) Seller agrees to indemnify and hold Purchaser, its
officers, directors, agents, attorneys and accountants ("Purchaser
Indemnitees") harmless from any and all damages, losses (which shall
include any diminution in value, liabilities, joint or several),
payments, obligations, penalties, claims, litigation, demands,
defenses, judgments, suits, proceedings, costs, disbursements or
expenses (including without limitation, fees, disbursements and
expenses of attorneys, accountants and other professional advisors and
of expert witnesses and costs of investigation and preparation) of any
kind or nature whatsoever (collectively "Damages"), directly or
indirectly resulting from, relating to or arising out of:
(i) any breach or nonperformance (partial or total)
of or inaccuracy in any representation or warranty or covenant
or agreement of Seller contained in any Operative Document
which survives the Closing hereof;
(ii) any liability or obligation arising out of
Seller's business as conducted prior to the Closing and not
expressly assumed by Purchaser pursuant to this Agreement;
(iii) any losses or costs of defending against any
claims which may be made against Purchaser by any Person
claiming violations by Seller of any local, state, or federal
law relating to the employment relationship, including, but
not limited to, wages, hours, concerted activity,
nondiscrimination, occupational health and safety and the
payment and withholding of Taxes, where such claims arise out
of circumstances occurring prior to the Closing Date;
(iv) any actual or threatened violation of or
non-compliance with, or remedial obligation arising under, any
environmental laws arising from any event, condition,
circumstance, activity, practice, incident, action or plan
existing or occurring prior to the Closing relating in any way
to the assets or the business of Seller;
(v) Seller's failure to comply with the laws of any
jurisdiction with respect to the bulk sales laws that may be
applicable to the sale of the Assets to Purchaser as
contemplated hereby; and
(vi) the Transaction Expenses incurred by Seller.
(b) Seller shall retain liability, and shall indemnify
Purchaser, for the payment of any Tax liabilities of Seller.
7.3 NO THIRD PARTY BENEFICIARIES. The foregoing indemnification is
given solely for the purpose of protecting the Purchaser Indemnitees and shall
not be deemed extended to, or interpreted in a manner to confer any benefit,
right or cause of action upon, any other Person.
7.4 INDEMNIFICATION NOTICE. If a Purchaser Indemnitee intends to
exercise its right to indemnification provided in this Article 7, such Purchaser
Indemnitee shall provide the party or parties from whom the indemnification will
be sought (the "Indemnitor") at least fifteen (15) days prior written notice
(the
ASSET PURCHASE AGREEMENT - PAGE 12
16
"Indemnification Notice") of such Purchaser Indemnitee's intention to do so
and the facts or circumstances giving rise to the claim ("Indemnification
Claim"). Nothing contained herein shall preclude any Purchaser Indemnitee from
taking any actions deemed reasonably necessary or appropriate in response to any
third party claims during such interim period. An Indemnification Claim may, at
the option of the Purchaser Indemnitee, be asserted as soon as any situation,
event or occurrence has been noticed by the Purchaser Indemnitee regardless
whether actual harm has been suffered or out-of-pocket expenses incurred. During
such fifteen (15) day period, the Indemnitor shall be entitled to cure the
defect or situation giving rise to the Indemnification Claim to the satisfaction
of the Purchaser Indemnitee. If the Indemnitor is unwilling or unable to cure
the defect giving rise to the Indemnification Claim during such fifteen (15)
period, the Purchaser Indemnitee may, on the sixteenth (16th) day after the
Indemnification Notice, seek indemnification as provided in this Article 7.
7.5 OFFSET. At any time or from time to time prior to the final payment
by Purchaser to Seller of any amounts or sums due under or pursuant to this
Agreement, the Promissory Note or any other Operative Document, Purchaser shall
be entitled, in addition to, and not in lieu of, any other right or remedy which
Purchaser may have against Seller, under or pursuant to this Agreement, or
otherwise, to notify Seller in writing (an "Offset Notice") that Purchaser
reasonably believes that it is entitled to indemnity for Damages under Section
7.2. Any Offset Notice provided hereunder shall identify the provision of this
Agreement which Purchaser believes entitles it to such indemnity for Damages and
shall briefly identify the facts which constitute the basis for each such claim
of indemnity and the dollar amount of such claim. If on or before thirty (30)
days after delivery of the Offset Notice, Seller shall not have objected
thereto, Purchaser may, but, shall not be required to, offset against any
portion of the amounts due under the Promissory Note then remaining unpaid, the
amount of the Damages claimed in the Offset Notice (and thus to reduce the
amounts due under this Agreement). Notwithstanding any offset exercised pursuant
to this Section 7.5, to the extent that the actual amount of any Damages arising
from a claim for indemnity set forth in an Offset Notice shall exceed the value
of the offset against the amounts due under this Agreement claimed, Seller shall
remain liable for, and shall promptly reimburse Purchaser the amount of, any
such excess Damages. If on or before thirty days following delivery of the
Offset Notice, Seller shall notify Purchaser that Seller questions the amount of
any Damages for which indemnity is claimed therein (or the entitlement to
indemnity), Purchaser shall nonetheless be entitled to exercise its rights of
offset provided for in this Section 7.5, but in lieu of reducing the amounts due
under this Agreement immediately, shall defer payment of a portion or portions
of the amounts due under the Promissory Note remaining unpaid in the amount of
the disputed claim until such time as (i) Purchaser shall have received written
authorization from Seller to retain such unpaid portion of the amounts due under
the Promissory Note in partial or total satisfaction of Purchaser's claim for
indemnity, or (ii) Seller shall have delivered to Purchaser, a certified or
file-stamped copy of a final decision of a court of competent jurisdiction
establishing the amount of such Damages or directing a specific distribution of
all or any part of the amounts due under the Promissory Note being held by
Purchaser pursuant to this Section 7.5. It shall be a condition to Purchaser's
obligation to defer applying any unpaid portion of the amounts due under the
Promissory Note, subject to the resolution of Seller's objection to the amount
of Damages claimed or the entitlement to indemnity with regard thereto, that
Seller specify in writing the provisions of this Agreement and other facts
supporting such objection. Purchaser shall not be obligated to exercise the
rights of offset provided for in this Section 7.5, and no failure to exercise
any such right of offset shall relieve Seller of any indemnity obligations under
Section 7.2, or otherwise.
8. GENERAL PROVISIONS AND OTHER AGREEMENTS
8.1 NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed given if and when delivered personally or
transmitted by telex, telecopy (receipt confirmed) or telegram, mailed by
registered or certified mail (return receipt requested) or sent by a recognized
next business day courier
ASSET PURCHASE AGREEMENT - PAGE 13
17
to the following persons at the following addresses (or at such other address
for a party as shall be specified by like notice):
If to Purchaser:
ISN Software Corporation
0000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxx
Telecopy: 000-000-0000
If to Seller:
EarthCare Company
00000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Chairman and CFO
Telecopy: 000-000-0000
8.2 FEES AND EXPENSES. Seller and Purchaser shall each pay all of their
own fees, costs and expenses (including without limitation, those of
accountants, appraisers and attorneys) incurred in connection with or related to
the preparation, negotiation, execution, delivery, satisfaction, compliance and
consummation of this Agreement and the Transactions contemplated hereby and the
closing conditions hereunder.
8.3 INTERPRETATION. The headings contained in this Agreement are for
reference purposes only and shall not affect the meaning or interpretation of
this Agreement. Terms such as "herein," "hereof," "hereinafter" refer to this
Agreement as a whole and not to the particular sentence or paragraph where they
appear, unless the context otherwise requires. Terms used in the plural include
the singular, and vice versa, unless the context otherwise requires.
8.4 COUNTERPARTS. This Agreement may be executed by facsimile in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8.5 MISCELLANEOUS. This Agreement (a) constitutes the entire agreement
and supersedes all other prior agreements and understandings, both written and
oral, among the parties, or any of them, with respect to the subject matter
hereof; (b) is not intended to and shall not confer upon any other person any
rights or remedies hereunder or otherwise with respect to the subject matter
hereof, except for rights that may expressly arise as a consequence of the
Transactions; (c) may not be assigned by operation of law or otherwise, except
that Seller may collaterally assign all of its rights hereunder to Bank of
America, N.A., as agent, pursuant to an existing credit agreement with Seller;
(d) has been drafted by all of the parties to this Agreement and should not be
construed against any of the parties hereto; and (e) shall be governed in all
respects, including validity, interpretation and effect by the substantive laws
of the State of Texas without regard to conflict of law provisions, and (f)
constitutes an agreement by Seller that none of the activities to be conducted
by Xxxxxxx X. Xxxxx in connection with the operations of Purchaser shall violate
any of the non-competition and non-solicitation covenants set forth in Section
10 of that certain Asset Purchase Agreement, dated August 6, 1999, by and among
Seller, AllenTate Commercial Software, L.L.P., Xxxxxxx X. Xxxxx and Xxx X. Xxxx.
ASSET PURCHASE AGREEMENT - PAGE 14
18
[SIGNATURE PAGE FOLLOWS]
ASSET PURCHASE AGREEMENT - PAGE 15
19
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers.
EARTHCARE COMPANY
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
ISN SOFTWARE CORPORATION
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
ASSET PURCHASE AGREEMENT - PAGE 16
20
EXHIBIT A
Form of Assumption Agreement
EXHIBIT B - ASSET PURCHASE AGREEMENT - PAGE 1
21
EXHIBIT B
Form of Xxxx of Sale
EXHIBIT C - ASSET PURCHASE AGREEMENT - PAGE 1
22
EXHIBIT C
Form of Promissory Note
EXHIBIT E - ASSET PURCHASE AGREEMENT - PAGE 1
23
EXHIBIT D
Purchase Price Allocation
[TO COME]
EXHIBIT G - ASSET PURCHASE AGREEMENT - PAGE 1
24
SCHEDULE 2.1(a)
PERSONAL PROPERTY
RECEPTIONIST AREA EXECUTIVE ASSISTANT'S AREA
Receptionist Desk Desk
Chair Credenza
Computer w/ Monitor Computer w/ Monitor
Guest Chairs File Cabinet (4 drawer)
Tables Printer (LaserJet 2100)
Pictures Picture
Fax Machine Guest Chairs
Telephone w/ Console Telephone w/ Console
Plants Accessories
Accessories
FRONT CONFERENCE ROOM - A CONFERENCE ROOM - B
Conference Table Conference Table
Chairs Chairs
Picture Pictures
Star Phone Coat Rack
Computer w/ Monitor Marker board
Computer Stand Star Phone
Office Telephone Bookcase
Projector Projector
KITCHEN CHARLES'S OFFICE
Table Executive Desk
Chairs Executive Chair
Picture Credenza
Refrigerator File Cabinet (2 drawer)
Coffee Pot Laptop Computer
Micro Wave Oven Monitor
Office Wall Phone Docking Station
Computer Stand
Table
Guest Chairs
Wall mounted marker board
Pictures
Office Telephones
Coat Rack
SCHEDULE 2.1(a) - ASSET PURCHASE AGREEMENT - PAGE 1
25
OFFICE AREA BILL'S OFFICE
Cubicles Workstations Executive Desk
Chairs Executive Chair
File Cabinet (2 drawer) Credenza
File Cabinet (4 drawer) File Cabinet (2 drawer)
Docking Stations Desktop Computer w/ monitor
Computer Stand Bookcase
Printer (LaserJet 8000N) Coat Rack
Printer (LaserJet 2100) Picture
Small Copier Office Telephones
Computer Stand Guest Chairs
Tables Telephone Table
Binder Maker
Monitors SUPPLY ROOM
Laptop Computers
Desktop Computers w/ Monitors Small Podium
Marker board for Cubicles Office Supplies
Office Telephones
Tack boards for Cubicles STORAGE ROOM
Green Tree
Pictures Tables
Office Wall Telephone
TRAINING/DEVELOPMENT ROOM Portable Projector
Digital Camera
Tables Tradeshow Computers w/ Monitors
Chairs Tradeshow Booth
Projector and screen Other Computer Support
Computers w/ Monitors
Podium
SCHEDULE 2.1(a) - ASSET PURCHASE AGREEMENT - PAGE 2
26
IT DEPARTMENT LESLIE'S OFFICE
Printer (Laser Jet 2100) Desk
Dell Server 2400 Credenza
Monitors w/computer Chair
Printer (Laser Jet 2100) Guest Chairs
Scan Jet (3300C) Computer Stand
Printer (PageWorks) Minolta Monitors/w Computer
Laptop Computer Marker board (Wall)
Docking Stations Office Telephone
Computer Stand Laptop computer
Dell Server 2300 Docking Station
Printer (Color LaserJet 4500) Tree Plant
Cubicles (Workstations) Printer (Epson)
Pictures Bookcase
Trees File cabinet drawer
Coffee Machine
Chairs SERVER ROOM
Office Telephone
Folding Table Power Vault Cluster Server
Printer-HP Design Jet 488CA Cisco Router 2500
File Cabinet (4 drawer) Cisco Router 1700
Digital Camera Small UPS
Large UPS
Superstack Switches 3300
Power Supply
Tape Back-up
Monitors
Modem-courier
PC
Dell Server 2200
Dell Server 2300
Dell Server 2400
Dell Server 4300
Dell Server 4400
Markerboard
Computer and Server Stands
Network Cabling
Smart Hard Dr. for Dell PowerEdge
Baseline Dual Speed Hub
SCHEDULE 2.1(a) - ASSET PURCHASE AGREEMENT - PAGE 3
27
SCHEDULE 2.1(b)
CONTRACTS
None
SCHEDULE 2.1(b) - ASSET PURCHASE AGREEMENT - PAGE 1
28
SCHEDULE 2.1(c)
INTANGIBLE ASSETS
TrainTrac
OS2K
AllenTate
ISN
ISNetworld
Industrial Services Networld
SCHEDULE 2.1(c) - ASSET PURCHASE AGREEMENT - PAGE 1
29
SCHEDULE 2.2
EXCLUDED ASSETS
None
SCHEDULE 2.2(a) - ASSET PURCHASE AGREEMENT - PAGE 1
30
SCHEDULE 2.6(a)
ASSUMED OBLIGATIONS
None
SCHEDULE 2.6(a) - ASSET PURCHASE AGREEMENT - PAGE 1
31
SCHEDULE 3.5
CONSENTS AND APPROVALS
None
SCHEDULE 3.5 - ASSET PURCHASE AGREEMENT - PAGE 1
32
SCHEDULE 3.8
INVESTIGATION OR LITIGATION
None
SCHEDULE 3.8 - ASSET PURCHASE AGREEMENT - PAGE 1
33
SCHEDULE 3.11
ACCOUNTS
HASC
WTSTC
NCCER
CSCTC
SCHEDULE 3.11 - ASSET PURCHASE AGREEMENT - PAGE 1
34
SCHEDULE 3.12
INSURANCE
General Commercial Liability by CNA
SCHEDULE 3.12 - ASSET PURCHASE AGREEMENT - PAGE 1
35
SCHEDULE 3.13
CONTRACTS; ORAL COMMITMENTS; DEFAULTS
None
SCHEDULE 3.13 - ASSET PURCHASE AGREEMENT - PAGE 1
36
SCHEDULE 3.15
PERMITS
None
SCHEDULE 3.15 - ASSET PURCHASE AGREEMENT - PAGE 1
37
SCHEDULE 3.19
PLANS
None
SCHEDULE 3.20 - ASSET PURCHASE AGREEMENT - PAGE 1
