EXHIBIT 10.4
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STOCK PURCHASE AGREEMENT
Dated September 28, 1998
By and Among
GLOBAL IMAGING SYSTEMS, INC.
("Global"),
SOUTHERN BUSINESS COMMUNICATIONS, INC.
("Buyer"),
PROVIEW, INC.
(the "Company")
and
THE SHAREHOLDERS OF THE COMPANY
(collectively, the "Sellers")
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.................................................................. 1
1.1 Definitions...................................................................... 1
ARTICLE II AGREEMENT OF PURCHASE AND SALE; CLOSING.................................... 6
2.1 Agreement to Sell and Purchase................................................... 6
2.2 Purchase Price................................................................... 6
2.3 Payment of Purchase Price........................................................ 6
2.4 Closing.......................................................................... 7
2.5 Escrow Arrangements.............................................................. 7
2.6 Purchase Price Adjustments....................................................... 7
(a) Funded Indebtness....................................................... 7
(b) Working Capital......................................................... 7
(c) Cash on Hand............................................................ 7
(d) Net Book Value.......................................................... 8
2.7 Closing Audit.................................................................... 8
2.8 Post-Closing Purchase Price Adjustment........................................... 8
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLERS............. 9
3.1 Capitalization................................................................... 9
3.2 No Liens on Shares............................................................... 9
3.3 Other Rights to Acquire Capital Stock............................................ 9
3.4 Due Organization................................................................. 9
3.5 Subsidiaries..................................................................... 10
3.6 Due Authorization................................................................ 10
3.7 Financial Statements............................................................. 10
3.8 Certain Actions.................................................................. 11
3.9 Properties....................................................................... 12
3.10 Licenses and Permits............................................................ 13
3.11 Intellectual Property........................................................... 13
3.12 Compliance with Laws............................................................ 13
3.13 Insurance....................................................................... 14
3.14 Employee Benefit Plans.......................................................... 14
(a) Employee Welfare Benefit Plans.......................................... 14
(b) Employee Pension Benefit Plans.......................................... 14
(c) Employment and Non-Tax Qualified Deferred Compensation Arrangements..... 15
3.15 Contracts and Agreements........................................................ 15
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3.16 Claims and Proceedings.................................................................. 15
3.17 Taxes................................................................................... 16
3.18 Personnel............................................................................... 17
3.19 Business Relations...................................................................... 18
3.20 Accounts Receivable..................................................................... 18
3.21 Bank Accounts........................................................................... 18
3.22 Warranties.............................................................................. 18
3.23 Brokers................................................................................. 18
3.24 Interest in Competitors, Suppliers, Customers, Etc...................................... 19
3.25 Indebtedness To and From Officers, Directors, Shareholders, and Employees............... 19
3.26 Undisclosed Liabilities................................................................. 19
3.27 Information Furnished................................................................... 19
ARTICLE IV GLOBAL'S REPRESENTATIONS AND WARRANTIES................................................. 20
4.1 Due Organization......................................................................... 20
4.2 Due Authorization........................................................................ 20
4.3 No Brokers............................................................................... 20
4.4 Investment............................................................................... 20
4.5 Information Furnished.................................................................... 21
4.6 Capitalization........................................................................... 21
4.7 Securities Laws Compliance............................................................... 21
ARTICLE V PRE-CLOSING COVENANTS.................................................................. 21
5.1 Consents of Others....................................................................... 21
5.2 Best Efforts............................................................................. 21
5.3 Powers of Attorney....................................................................... 21
5.4 Conduct of Business Pending Closing...................................................... 21
5.5 Access to Records Before Closing......................................................... 22
ARTICLE VI POST-CLOSING........................................................................... 23
6.1 General.................................................................................. 23
6.2 Transition............................................................................... 23
6.3 Confidentiality.......................................................................... 23
6.4 Covenant Not to Compete.................................................................. 23
6.5 Additional Matters....................................................................... 24
ARTICLE VII CONDITIONS TO OBLIGATION OF PARTIES TO CONSUMMATE CLOSING............................ 26
7.1 Conditions to Global's Obligations....................................................... 26
(a) Covenants, Representations and Warranties......................................... 26
(b) Consents.......................................................................... 26
(c) Suppliers/Leases.................................................................. 26
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(d) Discharge of Indebtedness and Lien............................................... 26
(e) Material Adverse Change.......................................................... 27
(f) Transfer Taxes................................................................... 27
(g) Documents to be Delivered by the Sellers and the Company......................... 27
(i) Opinion of the Sellers' Counsel..................................... 27
(ii) Certificates........................................................ 27
(iii) Release............................................................. 27
(iv) Escrow Agreement.................................................... 27
(v) Employment Agreement................................................ 27
(vi) Compliance Agreement................................................ 28
(vii) Building Leases..................................................... 28
(vii) Collateral Assignment of Rights.................................... 28
(viii) Stock Certificates.................................................. 28
7.2 Conditions to the Sellers' and the Company's Obligations..............................
(a) Covenants, Representations and Warranties........................................ 27
(b) Consents......................................................................... 29
(c) Documents to be Delivered by Global.............................................. 29
(i) Certificates........................................................ 29
(ii) Escrow Agreement.................................................... 26
(iii) Employment Agreements............................................... 29
(vii) Collateral Assignment of Rights..................................... 29
(iv) Payments to the Sellers and the Company and the Escrow Agent........ 29
ARTICLE VIII INDEMNIFICATION............................................................ 30
8.1 Indemnification of Global....................................................... 30
8.2 Defense of Claims............................................................... 30
8.3 Escrow Claim.................................................................... 31
8.4 Tax Audits, Etc................................................................. 31
8.5 Indemnification of the Sellers.................................................. 31
8.6 Limits on Indemnification....................................................... 31
ARTICLE IX MISCELLANEOUS................................................................ 32
9.1 Modifications................................................................... 32
9.2 Notices......................................................................... 32
9.3 Counterparts; Facsimile Transmission............................................ 34
9.4 Expenses........................................................................ 34
9.5 Binding Effect; Assignment...................................................... 34
9.6 Entire and Sole Agreement....................................................... 35
9.7 Governing Law................................................................... 35
9.8 Survival of Representations, Warranties and Covenants........................... 35
9.9 Invalid Provisions.............................................................. 35
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9.10 Public Announcements.................................................................... 35
9.11 Remedies Cumulative..................................................................... 35
9.12 Waiver.................................................................................. 35
9.13 DISPUTE RESOLUTION...................................................................... 36
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LIST OF EXHIBITS
Exhibit A Form Of Escrow Agreement
Exhibit B Form Of Estoppel Certificate For Building Leases
Exhibit C Opinion Of The Company's And The Sellers' Counsel
Exhibit D Sellers' Certificates
Exhibit E Form Of Release
Exhibit F Executive Agreement
Exhibit G Compliance Agreement
Exhibit H Global And Buyer Certificates
Exhibit I Equity Subscription Agreement
LIST OF SCHEDULES
Schedule 2.3 Sellers' Accounts
Schedule 2.6 Holders Of Funded Indebtedness
Schedule 3.1 Ownership Of Shares
Schedule 3.2 Liens On Shares
Schedule 3.4 Articles And Bylaws
Schedule 3.5 Subsidiaries
Schedule 3.7 Adjustments To Financial Statements
Schedule 3.8a Certain Actions
Schedule 3.8b Material Changes
Schedule 3.9 Properties
Schedule 3.10 Licenses And Permits
Schedule 3.11 Patents And Trademarks
Schedule 3.13 Insurance
Schedule 3.14 Employee Benefit Plans
Schedule 3.15 Contracts And Agreements
Schedule 3.16 Claims And Proceedings
Schedule 3.18 Personnel
Schedule 3.20 Accounts Receivable
Schedule 3.21 Bank Accounts
Schedule 3.23 Brokers
Schedule 3.25 Indebtedness With Officers, Directors And Shareholders
Schedule 3.26 Undisclosed Liabilities
Schedule 7.1(d) List Of Indebtedness
Schedule 9.6 Other Agreements
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "AGREEMENT") is entered into as of
September 28 1998, and is effective as of September 1, 1998, by and among GLOBAL
IMAGING SYSTEMS, INC., a Delaware corporation ("GLOBAL"), SOUTHERN BUSINESS
COMMUNICATIONS, INC., a Georgia corporation ("BUYER"), PROVIEW, INC., a North
Carolina corporation (the "COMPANY") and Xxxx X. Xxxxx and Xxxxx X. XxXxxxxx
(collectively, the "SELLERS ").
W I T N E S S E T H:
WHEREAS, the Company is engaged in the distribution, sale and service
of electronic presentation and audio visual equipment in the States of North
Carolina and South Carolina (the "BUSINESS"); and
WHEREAS, the Sellers own all of the issued and outstanding shares of
capital stock of the Company (the "SHARES"); and
WHEREAS, Buyer desires to purchase from the Sellers and the Sellers
desire to sell to Buyer all of the Shares on the terms and subject to the
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual premises and covenants
contained herein and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto covenant and agree
as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS. In this Agreement, the following terms have the
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meanings specified or referred to in this Section 1.1 and shall be equally
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applicable to both the singular and plural forms. Any agreement referred to
below shall mean such agreement as amended, supplemented and modified from time
to time to the extent permitted by the applicable provisions thereof and by this
Agreement.
"AFFILIATE" means, with respect to any Person, any other Person which
directly or indirectly controls, is controlled by or is under common control
with such Person.
"BUILDINGS" means collectively 000 X. Xxxxxxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxx Xxxxx Xxxxxxxx, 00000 and 0000 Xxxxxxx Xxxxx Xxxxx, Xxxxx 000,
Xxxxxxxx Xxxxxxxx Xxxx, Xxxxx Xxxxxxxx 00000.
"BUSINESS" has the meaning specified in the first recital of the
Agreement
"BUSINESS DAY" means any day in which the NASDAQ National Market
System is open for trading in the United States of America.
"BUYER" has the meaning specified in the first paragraph of this
Agreement.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act, 42 U.S.C. (S)(S) 9601 et seq., any amendments thereto, any
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successor statutes, and any regulations promulgated thereunder.
"CLOSING" means the closing of the transfer of the Shares from the
Sellers to Buyer.
"CLOSING BALANCE SHEET" has the meaning specified in Section 2.7.
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"CLOSING DATE" has the meaning specified in Section 2.4.
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"CODE" means the Internal Revenue Code of 1986, as amended.
"COMPANY" has the meaning specified in the first paragraph of this
Agreement.
"COMPLIANCE AGREEMENT" means the agreement with Xxxxx X. XxXxxxxx to
be entered into at Closing in the form of Exhibit G.
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"CONFIDENTIAL INFORMATION" means all (a) confidential information and
trade secrets of the Company including, without limitation, any of the same
comprising the identity, lists or descriptions of any customers, referral
sources or organizations; (b) financial statements, cost reports or other
financial information; (c) contract proposals, or bidding information; (d)
business plans and training and operations methods and manuals; (e) personnel
records; (f) information concerning fee structures; and (g) management systems,
policies or procedures, including related forms and manuals. Confidential
Information shall not include any information (i) which is disclosed pursuant to
subpoena or other legal process, (ii) which has been publicly disclosed, (iii)
which subsequently becomes known to a third party not subject to a
confidentiality agreement with Global or the Company, or (iv) which is
subsequently disclosed by any third party not in breach of a confidentiality
agreement.
"CONTRACTS" has the meaning specified in Section 3.15.
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"COURT ORDER" means any judgment, order, award or decree of any
foreign, federal, state, local or other court or tribunal and any award in any
arbitration proceeding.
"EFFECTIVE DATE" has the meaning specified in Section 2.4.
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"EMPLOYMENT AGREEMENT" means the executive agreement with Xxxx X.
Xxxxx to be entered into at Closing in the form of Exhibit F.
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"ENCUMBRANCE" means any lien, claim, charge, security interest,
mortgage, pledge, easement, conditional sale or other title retention agreement,
defect in title, restrictive covenant or other restrictions of any kind.
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"ENVIRONMENTAL OBLIGATIONS" has the meaning specified in Section 3.12.
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"EQUITABLE EXCEPTIONS" has the meaning specified in Section 3.6.
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"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ESCROW AGENT" means Central Carolina Bank.
"ESCROW AGREEMENT" means the Escrow Agreement to be executed by and
among the Sellers, Buyer and the Escrow Agent in substantially the same form as
Exhibit A.
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"ESCROW PERIOD" has the meaning specified in Section 2.5.
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"ESCROW SUM" has the meaning specified in Section 2.5.
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"FINANCIAL STATEMENTS" has the meaning specified in Section 3.7.
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"FUNDED INDEBTEDNESS" means all (i) indebtedness of the Company for
borrowed money or other interest-bearing indebtedness; (ii) capital lease
obligations of the Company which are accrued or required to be accrued under
GAAP, as adjusted for agreed upon assets and liabilities as set forth on
Schedule 3.7; (iii) obligations of the Company to pay the deferred purchase or
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acquisition price for goods or services, other than trade accounts payable or
accrued expenses in the ordinary course of business on no more than 90 day
payment terms; (iv) indebtedness of others guaranteed by the Company or secured
by an Encumbrance on any of the Company's assets; (v) indebtedness of the
Company under extended credit terms of more than 30 days from manufacturers
provided to the Company; or (vi) any receivables owed by the Company to the
Sellers.
"GAAP" shall mean generally accepted accounting principles,
consistently applied.
"GLOBAL" has the meaning specified in the first paragraph of this
Agreement.
"GLOBAL STOCK" means the common stock, par value $.01 per share of
Global.
"GOVERNMENTAL BODY" means any foreign, federal, state, local or other
governmental authority or regulatory body.
"GOVERNMENTAL PERMITS" has the meaning specified in Section 3.10.
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"HSR ACT" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended.
"IRS" means the Internal Revenue Service.
"INDEPENDENT ACCOUNTANTS" has the meaning specified in Section 2.7.
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"INDEMNIFIABLE COSTS" has the meaning specified in Section 8.1.
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"INDEMNIFIED PARTIES" has the meaning specified in Section 8.1.
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"INTELLECTUAL PROPERTY" has the meaning specified in Section 3.11.
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"MATERIAL ADVERSE CHANGE" or "MATERIAL ADVERSE EFFECT" means a
material adverse change or effect on the assets, properties, Business,
operations, liabilities, or financial condition of the Company and its
subsidiaries, taken as a whole. In determining whether a "Material Adverse
Change" or "Material Adverse Effect" has occurred, the quantitative amounts set
forth at the end of Article III shall be conclusive.
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"NET BOOK VALUE" means the Net Book Value of the Company as calculated
in accordance with GAAP, as adjusted for agreed upon assets and liabilities as
set forth on Schedule 3.7; provided, however, that the employee bonuses and tax
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effect stemming thereform as described on Schedule 3.8A shall be counted against
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the lesser of (i) the extent to which Net Book Value on the Effective Date is
more than the average Net Book Value at the end of each of the six months ending
July 31, 1998, as descibed in Section 2.6(d), and (ii) the extent to which
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Working Capital as reflected on the Preliminary Closing Balance Sheet is more
than the Working Capital Target as described on Schedule 2.6(b).
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"OSHA" means the Occupational Safety and Health Act, 29 U.S.C. (S)(S)
651 et seq., any amendment thereto, and any regulations promulgated thereunder.
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"PERMITTED EXCEPTION" means (a) liens for Taxes and other governmental
charges and assessments which are not yet due and payable, (b) liens of
landlords and liens of carriers, warehousemen, mechanics and materialmen and
other like liens arising in the ordinary course of business for sums not yet due
and payable, (c) other liens or imperfections on property which are not material
in amount or do not materially detract from the value or the existing use of the
property affected by such lien or imperfection, and (d) such statements of fact
and exceptions shown on any title insurance policies delivered to Global or
Buyer.
"PERSON" means any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability company, trust,
unincorporated organization or Governmental Body.
"PRELIMINARY CLOSING BALANCE SHEET" shall mean the Company's best
estimate of the Company's balance sheet as of the Effective Date. The
Preliminary Closing Balance Sheet shall be delivered to Buyer not less than
three (3) nor more than five (5) days prior to the Closing Date.
"PURCHASE PRICE" has the meaning specified in Section 2.2.
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"RCRA" means the Resource Conservation and Recovery Act, 42 U.S.C.
(S)(S) 6901 et seq., and any successor statute, and any regulations promulgated
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thereunder.
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"REQUIREMENTS OF LAWS" means any foreign, federal, state and local
laws, statutes, regulations, rules, codes or ordinances enacted, adopted, issued
or promulgated by any Governmental Body (including, without limitation, those
pertaining to electrical, building, zoning, environmental and occupational
safety and health requirements) or common law.
"SELLERS" has the meaning set forth in the first paragraph of this
Agreement.
"SHARES" means all of the issued and outstanding shares of the capital
stock of the Company.
"SUBSIDIARY" has the meaning set forth in Section 3.5 of this
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Agreement.
"SUBSIDIARY SHARES" has the meaning set forth in Section 3.5 of this
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Agreement.
"TAX" or "TAXES" means any federal, state, local or foreign income,
alternative or add-on minimum, gross income, gross receipts, windfall profits,
severance, property, production, sales, use, transfer, gains, license, excise,
employment, payroll, withholding or minimum tax, transfer, goods and services,
or any other tax, custom, duty, governmental fee or other like assessment or
charge of any kind whatsoever, together with any interest or any penalty,
addition to tax or additional amount imposed thereon by any Governmental Body.
"TAX RETURN" means any return, report or similar statement required to
be filed with respect to any Taxes (including any attached schedules),
including, without limitation, any information return, claim for refund, amended
return and declaration of estimated Tax.
"WORKING CAPITAL" shall mean the difference between the Company's
current assets and current liabilities as calculated in accordance with GAAP, as
adjusted for agreed upon assets and liabilities as set forth in Schedule 3.7,
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provided, however, that (i) an amount equal to the amount by which cash on hand
as of Closing is less than $50,000 shall be added to the calculation of Working
Capital as of the Effective Date otherwise computed in accordance with this
definition and (ii) the calculation of Working Capital as of the Effective Date
shall not include estimated income taxes from earnings of the Company payable
through the Effective Date; provided, however, that the employee bonuses and tax
effect stemming thereform as described on Schedule 3.8A shall be counted against
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the lesser of (i) the extent to which Net Book Value on the Effective Date is
more than the average Net Book Value at the end of each of the six months ending
July 31, 1998, as descibed in Section 2.6(d), and (ii) the extent to which
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Working Capital as reflected on the Preliminary Closing Balance Sheet is more
than the Working Capital Target as described on Schedule 2.6(b).
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"WORKING CAPITAL TARGET" shall have the meaning assigned to such term
in Section 2.6 hereof.
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ARTICLE II
AGREEMENT OF PURCHASE AND SALE; CLOSING
2.1 AGREEMENT TO SELL AND PURCHASE. Upon the basis of the
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representations and warranties, for the consideration, and subject to the terms
and conditions set forth in this Agreement, the Sellers agree to sell the Shares
to Buyer and Buyer agrees to purchase the Shares from the Sellers.
2.2 PURCHASE PRICE. The total potential purchase price for the
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Shares (the "PURCHASE PRICE") shall be equal to $5,000,000, subject to any
adjustment required to be made pursuant to Section 2.6 or Section 2.8 below.
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2.3 PAYMENT OF PURCHASE PRICE. The Purchase Price shall be payable
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(i) by Buyer (with respect to the portion of the Purchase Price set forth in
Section 2.3(a) and Section 2.3(b) below) and (ii) by Global (with respect to the
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portion of the Purchase Price set forth in Section 2.3(c) below) at the Closing
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(as defined in Section 2.4 below) or as otherwise set forth in Section 2.3(c)
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below as follows:
(A) $4,000,000 of the Purchase Price as adjusted as set forth in
Section 2.6 below will be paid, at the direction of the Sellers, in
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cash by wire transfer of funds as specified in Schedule 2.3 (including
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the payment of $55,000 for the covenant not to compete provided in
Section 6.4);
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(B) $500,000 of the Purchase Price as adjusted as set forth below
will be paid in cash by wire transfer of funds to the Escrow Agent to
be held in escrow for satisfaction of the Sellers' indemnification
obligations specified in Section 8.1 or payment to the Sellers in
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accordance with the terms of Section 2.5 below.
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(C) $500,000 of the Purchase Price shall be paid in the form of
shares of Global Stock to be issued to the Sellers at the Closing.
The number of shares of Global Stock to be issued to the Sellers shall
be determined based on the average of the closing bid prices per share
of the Global Stock on the NASDAQ National Market System for the ten
Business Days prior to the two (2) Business Days prior to the Closing
Date. The Global Stock shall be allocated among the Sellers as
specified in Schedule 2.3.
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2.4 CLOSING. The Closing of the purchase and sale of the Shares
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contemplated by this Agreement shall take place at 1:00 p.m., Eastern Time, at
the offices of Xxxxxxxxx & Xxxxxx, P.A. in Charlotte, North Carolina on
September 28, 1998, or at such other date and time as the parties shall agree
(the "CLOSING DATE"), effective as of September 1, 1998 (the "EFFECTIVE DATE").
2.5 ESCROW ARRANGEMENTS. Pursuant to the Escrow Agreement to be
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entered into among the Sellers, Buyer and the Escrow Agent, $500,000 of the
Purchase Price shall be delivered to the Escrow Agent at Closing. Such monies
(which, together with all interest accrued thereon, is hereinafter referred to
as the "ESCROW SUM") shall be held pursuant to the terms of
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the Escrow Agreement for payment from such Escrow Sum of the amounts, if any,
owing by the Sellers to Buyer pursuant to Section 2.8 or Article VIII below. At
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the conclusion of the period ending on the first anniversary of the Closing Date
(such period being referred to herein as the "ESCROW PERIOD"), such remaining
portion of the Escrow Sum not theretofore claimed by or paid to Buyer in
accordance with the terms of the Escrow Agreement and this Agreement shall be
disbursed to the Sellers. The Sellers and Buyer agree that each will execute and
deliver such reasonable instruments and documents as are furnished by any other
party to enable such furnishing party to receive those portions of the Escrow
Sum to which the furnishing party is entitled under the provisions of the Escrow
Agreement and this Agreement.
2.6 PURCHASE PRICE ADJUSTMENTS.
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(A) FUNDED INDEBTEDNESS. The portion of the Purchase Price payable
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pursuant to Section 2.3(a) above will be reduced, on a dollar-for-dollar basis,
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by the total amount of Funded Indebtedness as of the Closing, if any, assumed or
paid by Buyer in cash by wire transfer of funds to the accounts of the holders
of Funded Indebtedness listed on Schedule 2.6 hereto to satisfy the Company's
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Funded Indebtedness with such holders.
(B) WORKING CAPITAL. The portion of the Purchase Price payable
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pursuant to Section 2.3(a) above will be reduced, on a dollar-for-dollar basis,
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by the amount, if any, by which the Working Capital as reflected on the
Preliminary Closing Balance Sheet is more than $25,000 less than the average of
the Working Capital balances at the end of each of the six months ended July 31,
1998 (the "WORKING CAPITAL TARGET").
(C) CASH ON HAND. The portion of the Purchase Price payable
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pursuant to Section 2.3(a) above will be reduced, on a dollar-for-dollar basis,
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by the amount, if any, by which the cash on hand of the Company (included in the
Working Capital) at Closing is less than $50,000.
(D) NET BOOK VALUE. The portion of the Purchase Price payable
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pursuant to Section 2.3(a) above will be reduced, on a dollar-for-dollar basis,
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by the amount, if any, by which the Net Book Value (exclusive of vehicles and
Carolina Panthers football tickets currently owned by the Company) on the
Effective Date is more than $25,000 less than the average Net Book Value at the
end of each of the six months ending July 31, 1998.
2.7 CLOSING REVIEW. Within 120 days following the Closing Date,
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there shall be delivered to the Sellers a balance sheet of the Company (the
"CLOSING BALANCE SHEET") of the Company at and as of the Effective Date. The
Closing Balance Sheet shall be prepared in accordance with GAAP by the Buyer.
In the event that the Sellers dispute any items on the Closing Balance Sheet
within ten (10) days after the Sellers' receipt thereof, the parties shall
jointly select and retain an independent "Big Five" accounting firm (the
"INDEPENDENT ACCOUNTANTS") to review the disputed item(s) on the Closing Balance
Sheet. The final determination of such disputed item(s) by the Independent
Accountants shall be binding on the parties and shall be reflected on the
Closing Balance Sheet. The cost of retaining the Independent Accountants shall
be borne by the Buyer; provided, however, that the Sellers shall reimburse the
Buyer for the cost of the Independent Accountants in the event that such review
differs by less than 8% of Global's results.
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2.8 POST-CLOSING PURCHASE PRICE ADJUSTMENT. In the event that the
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Working Capital as reflected on the Closing Balance Sheet is less than the
Working Capital Target, then the Purchase Price will be adjusted downward, on a
dollar-for-dollar basis, to reflect the lesser of (i) the decrease, if any, in
Working Capital as reflected on the Closing Balance Sheet from the amount of
Working Capital reflected on the Preliminary Closing Balance Sheet or (ii) the
amount, if any, by which the Working Capital reflected on the Closing Balance
Sheet is less than the Working Capital Target. Conversely, the Purchase Price
will be adjusted upward, on a dollar-for dollar basis, to reflect the increase,
if any, in the total Working Capital as reflected on the Closing Balance Sheet
from the amount of Working Capital reflected on the Preliminary Closing Balance
Sheet; provided, however, that in no event shall such upward adjustment exceed
the total amount of any downward adjustment to the Purchase Price made pursuant
to Section 2.6(b) above. The post-closing adjustment to the Purchase Price, if
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any, shall be paid by the Sellers to Buyer from the Escrow Sum or by Buyer to
the Sellers, as the case may be, in immediately available funds within ten (10)
Business days of delivery of the Closing Balance Sheet, unless the Sellers
dispute any items on the Closing Balance Sheet, in which case it shall be paid
within ten (10) Business days after the Independent Accountants finally
determine the disputed item(s), and Buyer delivers to the Sellers a Closing
Balance Sheet modified to reflect such determination.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY AND THE SELLERS
The Company and the Sellers jointly and severally represent and warrant to
Global and Buyer that:
3.1 CAPITALIZATION. The authorized capital stock of the Company
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consists of 100,000 shares of Common Stock, 1,000 of which are issued and
outstanding. All of the Shares are duly authorized, validly issued, fully paid,
and nonassessable. All of the Shares are owned of record and beneficially by
the Sellers in the amounts set forth on Schedule 3.1 hereto. None of the Shares
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was issued or will be transferred under this Agreement in violation of any
preemptive or preferential rights of any Person. The Sellers own all of the
issued and outstanding capital stock of the Company.
3.2 NO LIENS ON SHARES. Except as shown on Schedule 3.2, the
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Sellers own the Shares, free and clear of any Encumbrances other than the rights
and obligations arising under this Agreement, and none of the Shares is subject
to any outstanding option, warrant, call, or similar right of any other Person
to acquire the same, and none of the Shares is subject to any restriction on
transfer thereof except for restrictions imposed by applicable federal and state
securities laws. At Closing, the Sellers will have full power and authority to
convey good and marketable title to the Shares, free and clear of any
Encumbrances.
3.3 OTHER RIGHTS TO ACQUIRE CAPITAL STOCK. Except as set forth in
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this Agreement, there are no authorized or outstanding warrants, options, or
rights of any kind to acquire from the Company any equity or debt securities of
the Company, or securities
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convertible into or exchangeable for equity or debt securities of the Company,
and there are no shares of capital stock of the Company reserved for issuance
for any purpose nor any contracts, commitments, understandings or arrangements
which require the Company to issue, sell or deliver any additional shares of its
capital stock.
3.4 DUE ORGANIZATION. The Company is a corporation duly organized,
--- ----------------
validly existing, and in good standing under the laws of the State of North
Carolina and has full corporate power and authority to carry on the Business as
now conducted and as proposed to be conducted through Closing. Complete and
correct copies of the Articles of Incorporation and Bylaws of the Company, and
all amendments thereto, have been heretofore delivered to Buyer and are attached
hereto as Schedule 3.4. The Company is qualified to do business in the State of
------------
North Carolina and in each jurisdiction in which the nature of the Business or
the ownership of its properties requires such qualification except where the
failure to be so qualified does not and could not reasonably be expected to have
a Material Adverse Effect.
3.5 SUBSIDIARIES. The Company is the owner of all of the
--- ------------
outstanding shares of the capital stock of each subsidiary (individually, a
"SUBSIDIARY" and collectively, the "SUBSIDIARIES") of the Company listed on
Schedule 3.5 (such shares shall be collectively referred to as the "SUBSIDIARY
------------
SHARES"), free and clear of all Encumbrances, and none of the Subsidiary Shares
is subject to any outstanding option, warrant, call, or similar right of any
other Person to acquire the same, and none of the Subsidiary Shares is subject
to any restriction on transfer thereof except for restrictions imposed by
applicable federal and state securities laws. There are no authorized or
outstanding warrants, options, or rights of any kind to acquire from the
Company, or any Subsidiary of the Company, any equity or debt securities of any
Subsidiary of the Company, or securities convertible into or exchangeable for
equity or debt securities of any Subsidiary of the Company, and there are no
Subsidiary Shares reserved for issuance for any purpose nor any contracts,
commitments, understandings or arrangements which require the Company or any
Subsidiary of the Company to issue, sell or deliver any additional Subsidiary
Shares. Except for the Subsidiaries of the Company listed on Schedule 3.5,
------------
neither the Company, nor its Subsidiaries, directly or indirectly have any
subsidiaries or any direct or indirect ownership interests in any Person. The
Sellers do not own any other Person engaged in the Business.
3.6 DUE AUTHORIZATION. The Company and the Sellers each have full
--- -----------------
power and authority to execute, deliver and perform this Agreement and to carry
out the transactions contemplated hereby. The execution, delivery, and
performance of this Agreement and the transactions contemplated hereby have been
duly and validly authorized by all necessary corporate action of the Company.
This Agreement has been duly and validly executed and delivered by the Company
and the Sellers and constitutes the valid and binding obligations of the Company
and the Sellers, enforceable in accordance with its terms, except to the extent
that enforceability may be limited by laws affecting creditors' rights and
debtors' obligations generally, and legal limitations relating to remedies of
specific performance and injunctive and other forms of equitable relief (the
"EQUITABLE EXCEPTIONS"). Except for the Equitable Exceptions and assuming all
necessary consents to the consummation of the transactions contemplated hereby,
as specifically set forth on Schedules 3.9 and 3.15, are obtained, the
------------- ----
-9-
execution, delivery, and performance of this Agreement (as well as all other
instruments, agreements, certificates, or other documents contemplated hereby)
by the Company and the Sellers, do not (a) violate any Requirements of Laws or
any Court Order of any Governmental Body applicable to the Company or the
Sellers, or their respective property, (b) violate or conflict with, or permit
the cancellation of, or constitute a default under, any material agreement to
which the Company or the Sellers are a party, or by which any of them or any of
their respective property is bound, (c) permit the acceleration of the maturity
of any Material indebtedness of, or Material indebtedness secured by the
property of, the Company or the Sellers, or (d) violate or conflict with any
provision of the charter or bylaws of the Company.
3.7 FINANCIAL STATEMENTS. The following Financial Statements
--- --------------------
(herein so called) of the Company have been delivered to Buyer by the Company:
balance sheets of the Company as of December 31, 1995, December 31, 1996 and
December 31, 1997, and a balance sheet as of July 31, 1998, and statements of
income of the Company for the fiscal years ending December 31, 1995, December
31, 1996, and December 31, 1997, and a statement of income for the seven month
period ending July 31, 1998. The Financial Statements have been prepared in
accordance with GAAP, as adjusted for agreed upon assets and liabilities as set
forth on Schedule 3.7, throughout the periods indicated and fairly present the
------------
financial position, results of operations and changes in financial position of
the Company as of the indicated dates and for the indicated periods, subject (in
the case of the two month Financial Statements) to year end accruals made in the
ordinary course of the Business which are not materially adverse and which are
consistent with past practices and subject to the adjustment to Working Capital
set forth in the definition of Working Capital above. Except to the extent
reflected or provided for in the Financial Statements or the notes thereto and
obligations and liabilities incurred in the ordinary course of business since
the date of the last of such Financial Statements, the Company has no
liabilities required by GAAP to be reflected on the Company's balance sheet or
notes thereto that are not so reflected, nor any other obligations (whether
absolute, contingent, or otherwise) which are (individually or in the aggregate)
Material (in amount or to the conduct of the Business); and neither the Company
nor the Sellers have knowledge of any basis for the assertion of any such
liability or obligation. Since July 31, 1998, there has been no Material
Adverse Change in the prospects of the Company.
3.8 CERTAIN ACTIONS. Since July 31, 1998, the Company has not,
--- ---------------
except as disclosed on Schedule 3.8A hereto or any of the Financial Statements
-------------
or notes thereto: (a) discharged or satisfied any Encumbrance or paid any
obligation or liability, absolute or contingent, other than current liabilities
incurred and paid in the ordinary course of the Business; (b) paid or declared
any dividends or distributions, or purchased, redeemed, acquired, or retired any
stock or indebtedness from any stockholder (other than distributions to pay
estimated income taxes of the Sellers associated with the income of the
Company); (c) made or agreed to make any loans or advances or guaranteed or
agreed to guarantee any loans or advances to any party whatsoever; (d) suffered
or permitted any Encumbrance other than Permitted Exceptions to arise or be
granted or created against or upon any of its assets, real or personal, tangible
or intangible; (e) canceled, waived, or released or agreed to cancel, waive, or
release any of its receivables, rights, or claims against third parties in
excess of $15,000 individually or $35,000 in the aggregate; (f) sold, assigned,
pledged, mortgaged, or otherwise transferred, or suffered any
-10-
material damage, destruction, or loss (whether or not covered by insurance) to,
any assets (except in the ordinary course of the Business); (g) amended its
charter or bylaws; (h) paid or made a commitment to pay any severance or
termination payment to any employee or consultant; (i) made any material change
in its method of management or operation or method of accounting; (j) made any
capital expenditures, including, without limitation, replacements of equipment
in the ordinary course of the Business, or entered into commitments therefor,
except for capital expenditures or commitments therefor which do not, in the
aggregate, exceed $40,000; (k) made any investment or commitment therefor in any
Person; (l) made any payment or contracted for the payment of any bonus or other
compensation or personal expenses, other than (i) wages and salaries and
business expenses paid in the ordinary course of the Business, and (ii) wage and
salary adjustments made in the ordinary course of the Business for employees who
are not officers, directors, or shareholders of the Company; (m) made, amended,
or entered into any written employment contract or created or made any material
change in any bonus, stock option, pension, retirement, profit sharing or other
employee benefit plan or arrangement; (n) materially amended or experienced a
termination of any material contract, agreement, lease, franchise or license to
which the Company is a party that would or could reasonably be expected to have
a Material Adverse Effect, except in the ordinary course of the Business; or (o)
entered into any other material transactions that would or could reasonably be
expected to have a Material Adverse Effect except in the ordinary course of the
Business. Since July 31, 1998, except as disclosed on Schedule 3.8B hereto or
-------------
any of the Financial Statements or notes thereto, there has not been (a) any
Material Adverse Change including, but not limited to, the loss of any material
customers or suppliers of the Company, or in any material assets of the Company,
(b) any extraordinary contracts, commitments, orders or rebates, (c) any strike,
material slowdown, or demand for recognition by a labor organization by or with
respect to any of the employees of the Company, or (d) any shutdown, material
slow-down, or cessation of any material operations conducted by, or constituting
part of, the Company, nor has the Company agreed to do any of the foregoing.
3.9 PROPERTIES. Attached hereto as Schedule 3.9 is a list containing
--- ---------- ------------
a description of each interest in real property (including, without limitation,
leasehold interests) and each item of personal property utilized by the Company
in the conduct of the Business having a book value in excess of $15,000 as of
the date hereof. Except for Permitted Exceptions or as expressly set forth on
Schedule 3.9, such real and personal properties are free and clear of
------------
Encumbrances. The Sellers and the Company have delivered to Buyer a lien
search obtained from the counties where the Company conducts business and the
North Carolina Secretary of State office of all UCC liens of record against the
Company's personal property in the State of North Carolina. All of the
properties and assets necessary for continued operation of the Business as
currently conducted (including, without limitation, all books, records,
computers and computer software and data processing systems) are owned, leased
or licensed by the Company and are reasonably suitable for the purposes for
which they are currently being used. With the exception of used equipment and
inventory valued at no more than $10,000 in the aggregate on the Company's
Financial Statements, the physical properties of the Company, including the real
properties leased by the Company, to the best knowledge of the Company and the
Sellers, are in good operating condition and repair, normal wear and tear
excepted, and are free from any defects of a material nature. Except for
Permitted Exceptions or as otherwise set forth on
-11-
Schedule 3.9, the Company has full and unrestricted legal and equitable title
------------
to all such properties and assets. The operation of the properties and Business
of the Company in the manner in which they are now and have been operated does
not violate any zoning ordinances, municipal regulations, or other Requirements
of Laws, except for any such violations which would not, individually or in the
aggregate, have a Material Adverse Effect. Except for Permitted Exceptions or as
set forth on Schedule 3.9, no restrictive covenants, easements, rights-of-way,
------------
or regulations of record impair the uses of the properties of the Company for
the purposes for which they are now operated. All leases of real or personal
property by the Company are legal, valid, binding, enforceable and in full force
and effect and, assuming all necessary consents to the consummation of the
transactions contemplated herein, as set forth on Schedule 3.9, are obtained,
------------
will remain legal, valid, binding, enforceable and in full force and effect on
essentially the same terms immediately following the Closing, except to the
extent that enforceability may be limited by the Equitable Exceptions. All
facilities owned or leased by the Company have received all material approvals
of any Governmental Body (including Governmental Permits) required in connection
with the operation thereof and have been operated and maintained in accordance
with all Requirements of Laws.
3.10 LICENSES AND PERMITS. Attached hereto as Schedule 3.10 is a
---- -------------------- -------------
list of all Material licenses, certificates, privileges, immunities, approvals,
franchises, authorizations and permits held or applied for by the Company from
any Governmental Body (herein collectively called "GOVERNMENTAL PERMITS") the
absence of which could individually or the in the aggregate have a Material
Adverse Effect. The Company has complied in all material respects with the
terms and conditions of all such Governmental Permits, and the Company has not
received notification from any Governmental Body of violation of any such
Governmental Permit or the Requirements of Laws governing the issuance or
continued validity thereof other than violations (if any) which would not
individually or in the aggregate have a Material Adverse Effect. No additional
Governmental Permit is required from any Governmental Body thereof in connection
with the conduct of the Business which Governmental Permit, if not obtained,
would have a Material Adverse Effect.
3.11 INTELLECTUAL PROPERTY. Attached hereto as Schedule 3.11 is a
---- --------------------- -------------
list and brief description of all patents, trademarks, tradenames, copyrights,
licenses, computer software or data (other than general commercial software) or
applications therefor owned by or registered in the name of the Company or in
which the Company has any rights, licenses, or immunities (collectively, the
"INTELLECTUAL PROPERTY"). The Company has furnished Buyer with copies of all
license agreements to which the Company is a party, either as licensor or
licensee, with respect to any Intellectual Property. Except as described on
Schedule 3.11 hereto, the Company has good title to or the right to use such
-------------
Intellectual Property and all inventions, processes, designs, formulae, trade
secrets and know-how necessary for the conduct of their Business, as presently
conducted without the payment of any royalty or similar payment, and the Company
is not infringing on any patent right, tradename, copyright or trademark right
or other Intellectual Property right of others, and neither the Company nor the
Sellers are aware of any infringement by others of any such rights owned by the
Company.
-12-
3.12 COMPLIANCE WITH LAWS. The Company has (i) complied in all
---- --------------------
material respects with all Requirements of Laws, Governmental Permits and Court
Orders applicable to the Business and has filed with the proper Governmental
Bodies all statements and reports required by all Requirements of Laws,
Governmental Permits and Court Orders to which the Company or any of its
employees (because of their activities on behalf of the Company) are subject and
(ii) conducted the Business and is in compliance in all material respects with
all federal, state and local energy, public utility, health, safety and
environmental Requirements of Laws, Governmental Permits and Court Orders
including the Clean Air Act, the Clean Water Act, RCRA, the Safe Drinking Water
Act, CERCLA, OSHA, the Toxic Substances Control Act and any similar state, local
or foreign laws (collectively "ENVIRONMENTAL OBLIGATIONS") and all other
federal, state, local or foreign governmental and regulatory requirements,
except where any such failure to comply or file would not, in the aggregate,
have a Material Adverse Effect. No claim has been made by any Governmental Body
(and, to the best knowledge of the Company and the Sellers, no such claim is
anticipated) to the effect that the Business fails to comply, in any respect,
with any Requirements of Laws, Governmental Permit or Environmental Obligation
or that a Governmental Permit or Court Order is necessary in respect thereto.
3.13 INSURANCE. Attached hereto as Schedule 3.13 is a list of all
---- --------- -------------
coverages for fire, liability, or other forms of insurance and all fidelity
bonds held by or applicable to the Company. Copies of the binder for all such
insurance policies have been delivered to Buyer. To the best of the Company's
and the Sellers' knowledge and belief, no event relating to the Company has
occurred which will result in (i) cancellation of any such insurance coverages;
(ii) a retroactive upward adjustment of premiums under any such insurance
coverages; or (iii) any prospective upward adjustment in such premiums. All of
such insurance coverages will remain in full force and effect following the
Closing.
3.14 EMPLOYEE BENEFIT PLANS.
---- ----------------------
(A) EMPLOYEE WELFARE BENEFIT PLANS. Except as disclosed on
--- ------------------------------
Schedule 3.14, the Company does not maintain or contribute to any "employee
-------------
welfare benefit plan" as such term is defined in Section 3(1) of ERISA. With
respect to each such plan: (i) the plan is in material compliance with ERISA;
(ii) the plan has been administered in accordance with its governing documents;
(iii) neither the plan, nor any fiduciary with respect to the plan, has engaged
in any "prohibited transaction" as defined in Section 406 of ERISA other than
any transaction subject to a statutory or administrative exemption; (iv) except
for the processing of routine claims in the ordinary course of administration,
there is no material litigation, arbitration or disputed claim outstanding; and
(v) all premiums due on any insurance contract through which the plan is funded
have been paid.
(B) EMPLOYEE PENSION BENEFIT PLANS. Except as disclosed in
--- ------------------------------
Schedule 3.14, the Company does not maintain or contribute to any arrangement
-------------
that is or may be an "employee pension benefit plan" relating to employees, as
such term is defined in Section 3(2) of ERISA. With respect to each such plan:
(i) the plan is qualified under Section 401(a) of the Code, and any trust
through which the plan is funded meets the requirements to be exempt from
federal income tax under Section 501(a) of the Code; (ii) the plan is in
material compliance
-13-
with ERISA; (iii) the plan has been administered in accordance with its
governing documents as modified by applicable law; (iv) the plan has not
suffered an "accumulated funding deficiency" as defined in Section 412(a) of the
Code; (v) the plan has not engaged in, nor has any fiduciary with respect to the
plan engaged in, any "prohibited transaction" as defined in Section 406 of ERISA
or Section 4975 of the Code other than a transaction subject to statutory or
administrative exemption; (vi) the plan has not been subject to a "reportable
event" (as defined in Section 4043(b) of ERISA), the reporting of which has not
been waived by regulation of the Pension Benefit Guaranty Corporation; (vii) no
termination or partial termination of the plan has occurred within the meaning
of Section 411(d)(3) of the Code; (viii) all contributions required to be made
to the plan or under any applicable collective bargaining agreement have been
made to or on behalf of the plan; (ix) there is no material litigation,
arbitration or disputed claim outstanding; and (x) all applicable premiums due
to the Pension Benefit Guaranty Corporation for plan termination insurance have
been paid in full on a timely basis.
(C) EMPLOYMENT AND NON-TAX QUALIFIED DEFERRED COMPENSATION
--- ------------------------------------------------------
ARRANGEMENTS. Except as disclosed in Schedule 3.14, the Company does not
------------ -------------
maintain or contribute to any retirement or deferred or incentive compensation
or stock purchase, stock grant or stock option arrangement entered into between
the Company and any current or former officer, consultant, director or employee
of the Company that is not intended to be a tax qualified arrangement under
Section 401(a) of the Code.
3.15 CONTRACTS AND AGREEMENTS. Attached hereto as Schedule 3.15 is
---- ------------------------ -------------
a list and brief description of all written or oral contracts, commitments,
leases, and other agreements (including, without limitation, promissory notes,
loan agreements, and other evidences of indebtedness, guarantees, agreements
with distributors, suppliers, dealers, franchisors and customers, and service
agreements) to which the Company is a party or by which the Company or its
properties are bound pursuant to which the obligations thereunder of either
party thereto are, or are contemplated as being, for any one contract $35,000 or
greater (collectively, the "CONTRACTS"). The Company is not and, to the best
knowledge of the Sellers and the Company, no other party thereto is in default
(and no event has occurred which, with the passage of time or the giving of
notice, or both, would constitute a default by the Company) under any of the
Contracts, and the Company has not waived any right under any of the Contracts,
except for any such defaults or waivers, which would not have a Material Adverse
Effect. Except for the Equitable Exceptions, all of the Contracts are legal,
valid, binding, enforceable and in full force and effect and, assuming all
necessary consents to the consummation of the transactions contemplated herein,
as specifically set forth on Schedules 3.9 and 3.15, are obtained, will remain
------------- ----
legal, valid, binding, enforceable and in full force and effect on essentially
the same terms immediately after the Closing, except to the extent that
enforceability may be limited by the Equitable Exceptions. Except as set forth
in Schedule 3.15, the Company has not guaranteed any obligations of any other
-------------
Person. To the best knowledge of the Company and the Sellers, no manufacturer
of office equipment sold by the Company will cease doing business with the
Company immediately following the Closing.
3.16 CLAIMS AND PROCEEDINGS. Attached hereto as Schedule 3.16 is a
---- ---------------------- -------------
list and brief description of all claims, actions, suits, proceedings, or
investigations pending or, to the
-14-
best knowledge and belief of the Sellers or the Company, threatened against or
affecting the Company or any of its properties or assets, at law or in equity,
or before or by any court, municipality or other Governmental Body. Except as
set forth on Schedule 3.16, none of such claims, actions, suits, proceedings,
-------------
or investigations, if adversely determined, will result in any Material
liability or loss to the Company. The Company has not been and the Company is
not now, subject to any Court Order, stipulation, or consent of or with any
court or Governmental Body. No inquiry, action or proceeding has been instituted
or, to the best knowledge and belief of the Sellers or the Company, threatened
or asserted against the Sellers or the Company to restrain or prohibit the
carrying out of the transactions contemplated by this Agreement or to challenge
the validity of such transactions or any part thereof or seeking damages on
account thereof. Except as set forth on Schedule 3.16, there is no basis for any
-------------
such valid claim or action.
3.17 TAXES.
---- -----
(A) All Federal, foreign, state, county and local income, gross
receipts, excise, property, franchise, license, sales, use, withholding and
other Taxes due from the Company on or before the Closing will have been paid
and all Tax Returns which are required to be filed by the Company on or before
the Closing will have been filed within the time and in the manner provided by
law, and all such Tax Returns are true and correct and accurately reflect the
Tax liabilities of the Company. No Tax Returns of the Company are presently
subject to an extension of the time to file. All Taxes, assessments, penalties,
and interest of the Company which have become due pursuant to such Tax Returns
or any assessments received have been paid or adequately accrued on the
Company's Financial Statements. The provisions for Taxes reflected on the
balance sheets contained in the Financial Statements are adequate to cover all
of the Company's Tax liabilities for the respective periods then ended and all
prior periods. The Company has not executed any presently effective waiver or
extension of any statute of limitations against assessments and collection of
Taxes, and there are no pending or, to the best knowledge of the Sellers or the
Company, threatened claims, assessments, notices, proposals to assess,
deficiencies, or audits with respect to any such Taxes. For Governmental Bodies
with respect to which the Company does not file Tax Returns, no such
Governmental Body has given the Company written notification that the Company is
or may be subject to taxation by that Governmental Body. The Company has
withheld and paid all Taxes required to have been withheld and paid in
connection with amounts paid or owing to any employee, shareholder, creditor,
independent contractor or other party. There are no Tax liens on any of the
property or assets of the Company. The Company (and any predecessor of the
Company) has been a validly electing S corporation within the meanings of
Sections 1361 and 1362 of the Code at all times since the date of its
incorporation, and the Company will be an S corporation until and including the
Closing Date.
(B) Neither the Company nor any other corporation has filed an
election under Section 341(f) of the Code that is applicable to the Company or
any assets held by the Company. The Company has not made any payments, is not
obligated to make any payments, and is not a party to any agreement that under
certain circumstances could obligate it to make any payments that will not be
deductible under Section 280G of the Code. The Company has not been a United
States real property holding corporation within the meaning of
-15-
Section 897(c)(2) of the Code during the applicable period specified in Code
Sec. 897(c)(1)(A)(ii). The Company is not a party to any Tax allocation or
sharing agreement. The Company has not and has never been (nor does the Company
have any liability for unpaid Taxes because it once was) a member of an
affiliated group during any part of a return year any corporation other than the
Company also was a member of the affiliated group. No Seller (A) has been a
member of an affiliated group, as defined in Section 1504(a) of the Code, filing
a consolidated federal income Tax Return (other than a group the common parent
of which was any Seller) and (B) has any Liability for the Taxes of any Person
under Treas. Reg. Section 1.1502-6 (or any similar provision of state, local, or
foreign law), as a transferee or successor, by contract or otherwise.
(C) The Company would not be liable for any Tax under Section 1374 of
the Code in connection with a deemed sale of such Company's assets caused by an
election under Section 338(h)(10) of Code. The Company has not, in the past ten
(10) years, (i) acquired assets from another corporation in a transaction in
which the Company's Tax basis for the acquired assets was determined in whole or
in part by reference to the Tax basis of the acquired assets (or any other
property) in the hands of the transferor or (ii) acquired the stock of any other
corporation that is a qualified subchapter S subsidiary.
(D) The Company has not had at any time during the Company's existence
owned any subsidiaries (including any "qualified subchapter S subsidiaries"
within the meaning of Section 1361(b)(3)(13) of the Code.
(E) No transaction contemplated by this Agreement is subject to
withholding under Section 1445 of the Code and no stock transfer taxes, real
estate transfer taxes or similar taxes will be imposed upon the transfer and
sale of the Shares pursuant to this Agreement.
3.18 PERSONNEL. Attached hereto as Schedule 3.18 is a list of the
---- --------- -------------
names and annual rates of compensation of the directors and executive officers
of the Company, and of the employees of the Company whose annual rates of
compensation during the fiscal year ended December 31, 1998 (including base
salary, bonus and incentive pay) exceed (or by December 31, 1998 are expected to
exceed) $60,000. Schedule 3.18 also summarizes the bonus, profit sharing,
-------------
percentage compensation, company automobile, club membership, and other like
benefits, if any, paid or payable to such directors, officers, and employees
during the Company's fiscal year ended December 31, 1998 and to the date hereof.
Since December 31, 1997, the Company has not changed the employment
compensation, benefits or consulting payments to the Sellers, except in the
ordinary course of business consistent with past practice and except for cash
dividends as agreed by Buyer. Schedule 3.18 also contains a brief description
-------------
of all material terms of employment agreements to which the Company is a party
and all severance benefits which any director, officer or employee of the
Company is or may be entitled to receive. The employee relations of the Company
are generally good and there is no pending or, to the best knowledge of the
Sellers or the Company, threatened labor dispute or union organization campaign.
None of the employees of the Company are represented by any labor union or
organization. The Company is in compliance in all material respects with all
Requirements of
-16-
Laws respecting employment and employment practices, terms and conditions of
employment, and wages and hours, and are not engaged in any unfair labor
practices. Neither the Company or the Sellers has been advised, or has good
reason to believe, that any of the persons whose names are set forth on Schedule
--------
3.18 or any other employee will not agree to remain employed by the Company
----
after the consummation of the transactions contemplated hereby. There is no
unfair labor practice claim against the Company before the National Labor
Relations Board, or any strike, dispute, slowdown, or stoppage pending or, to
the best knowledge of the Company and the Sellers, threatened against or
involving the Company, and none has occurred.
3.19 BUSINESS RELATIONS. To the best of the knowledge of the Company
---- ------------------
and the Sellers, no customer or supplier of the Company will cease to do
business with the Company after the consummation of the transactions
contemplated hereby in the same manner and at the same levels as previously
conducted with the Company except for any reductions which individually or in
the aggregate do not result in a Material Adverse Change. Neither the Sellers
nor the Company has received any notice of any material disruption (including
delayed deliveries or allocations by suppliers) in the availability of any
portion of the materials used by the Company nor is the Company or the Sellers
aware of any facts which could reasonably lead them to believe that the Business
will be subject to any such material disruption.
3.20 ACCOUNTS RECEIVABLE. All of the accounts, notes, and loans
---- -------------------
receivable that have been recorded on the books of the Company are bona fide and
represent amounts validly due for goods sold or services rendered and, except as
disclosed on Schedule 3.20, all such amounts (net of any allowance for doubtful
--------------
accounts) will be collected in full within 180 days following the Closing Date.
Except as disclosed on Schedule 3.20 hereto (a) all of such accounts, notes, and
-------------
loans receivable are free and clear of any Encumbrances; (b) no claims of offset
have been asserted in writing against any of such accounts, notes, or loans
receivable; and (c) none of the obligors of such accounts, notes, or loans
receivable has given written notice that it will or may refuse to pay the full
amount or any portion thereof.
3.21 BANK ACCOUNTS. Attached hereto as Schedule 3.21 is a list of
---- ------------- -------------
all banks or other financial institutions with which the Company has an account
or maintains a safe deposit box, showing the type and account number of each
such account and safe deposit box and the names of the persons authorized as
signatories thereon or to act or deal in connection therewith.
3.22 WARRANTIES. Except for warranty claims that are typical and
---- ----------
in the ordinary course of the Business, no written claim for breach of product
or service warranty to any customer has been made against the Company since
January 1, 1997. To the best knowledge of the Sellers and the Company, no state
of facts exists, and no event has occurred, which could reasonably be expected
to form the basis of any present claim against the Company for liability on
account of any express or implied warranty to any third party in connection with
products sold or services rendered by the Company, except for warranty claims
which are typical and in the ordinary course of business, none of which
individually or in the aggregate would have a Material Adverse Effect.
-17
3.23 BROKERS. Except as set forth on Schedule 3.23, neither the
---- ------- -------------
Company nor the Sellers have engaged, or caused to be incurred any liability to
any finder, broker, or sales agent in connection with the origin, negotiation,
execution, delivery, or performance of this Agreement or the transactions
contemplated hereby.
3.24 INTEREST IN COMPETITORS, SUPPLIERS, CUSTOMERS, ETC. No
---- ---------------------------------------------------
officer, director, or shareholder of the Company or any affiliate of any such
officer, director, or shareholder, has any ownership interest in any competitor,
supplier, or customer of the Company (other than ownership of securities of a
publicly-held corporation of which such Person owns, or has real or contingent
rights to own, less than one percent of any class of outstanding securities) or
any property used in the operation of the Business.
3.25 INDEBTEDNESS TO AND FROM OFFICERS, DIRECTORS, SHAREHOLDERS, AND
---- ---------------------------------------------------------------
EMPLOYEES. Attached hereto as Schedule 3.25 is a list and brief description
--------- -------------
of the payment terms of all indebtedness of the Company to officers, directors,
shareholders, and employees of the Company and all indebtedness of officers,
directors, shareholders, and employees of the Company to the Company, excluding
indebtedness for travel advances or similar advances for expenses incurred on
behalf of and in the ordinary course of the Business, consistent with past
practices.
3.26 UNDISCLOSED LIABILITIES. Except as indicated in Schedule 3.7
---- ----------------------- ------------
or Schedule 3.26 hereto, the Company does not have any liabilities (whether
-------------
absolute, accrued, contingent or otherwise), of a nature required by GAAP to be
reflected on a corporate balance sheet or disclosed in the notes thereto, except
such liabilities which are accrued or reserved against in the Financial
Statements or disclosed in the notes thereto, including without limitation any
accounts payable or service liabilities of the Company incurred prior to the
Closing Date, other than liabilities incurred in the ordinary course of the
Business since the date of the latest of such Financial Statements.
3.27 INFORMATION FURNISHED. The Company and the Sellers have made
---- ---------------------
available to Buyer true and correct copies of all material corporate records of
the Company and all material agreements, documents, and other items listed on
the Schedules to this Agreement or referred to in this Agreement, and neither
this Agreement, the Schedules hereto, nor any written information, instrument,
or document delivered to Global or Buyer pursuant to this Agreement contains any
untrue statement of a material fact or omits any material fact necessary to make
the statements herein or therein, as the case may be, not misleading.
In making the representations and warranties set forth above, the term
"Material" or "material" shall, where appropriate in context of its use, be
deemed to mean an amount of money greater than $20,000. The terms "Material
Adverse Change," "material adverse trend," "Material Adverse Effect," or any
other term of like import shall mean the occurrence of any single event, or any
series of related events, or set of related circumstances, which proximately
causes an actual, direct economic loss to the Company, taken as a whole, in
excess of $20,000 per occurrence or $40,000 in the aggregate. The term
"knowledge" shall mean actual knowledge after reasonable inquiry of the officers
and employees of the Company with responsibility for the
-18-
applicable subject matter. All references to the "Company" in Sections 3.6
------------
through 3.27 shall include the Companies' Subsidiaries.
----
3.28 All personal vehicles have been removed from the Business prior
to the Closing Date.
ARTICLE IV
GLOBAL'S AND BUYER'S REPRESENTATIONS AND WARRANTIES
Global and Buyer jointly and severally represent and warrant to the Sellers
as follows:
4.1 DUE ORGANIZATION. Global is a corporation duly organized,
--- ----------------
validly existing, and in good standing under the laws of the State of Delaware
and has full corporate power and authority to execute, deliver and perform this
Agreement and to carry out the transactions contemplated hereby. Buyer is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Georgia and has full corporate power and authority to
execute, deliver and perform this Agreement and to carry out the transactions
contemplated hereby.
4.2 DUE AUTHORIZATION. The execution, delivery and performance of
--- -----------------
this Agreement has been duly authorized by all necessary corporate action of
Global and Buyer and the Agreement has been duly and validly executed and
delivered by Global and Buyer and constitutes the valid and binding obligation
of each of Global and Buyer, enforceable in accordance with its terms, except to
the extent that enforceability may be limited by the Equitable Exceptions. The
execution, delivery, and performance of this Agreement (as well as all other
instruments, agreements, certificates or other documents contemplated hereby) by
Global and Buyer, do not (a) violate any Requirements of Laws or Court Order of
any Governmental Body applicable to Global or Buyer or their property, (b)
violate or conflict with, or permit the cancellation of, or constitute a default
under any agreement to which Global or Buyer is a party or by which either of
them or their property is bound, (c) permit the acceleration of the maturity of
any indebtedness of, or any indebtedness secured by the property of, Global or
Buyer, or (d) violate or conflict with any provision of the charter or bylaws of
Global or Buyer.
4.3 NO BROKERS. Neither Global or Buyer have engaged, or caused to
--- ----------
be incurred any liability to any finder, broker or sales agent in connection
with the origin, negotiation, execution, delivery, or performance of this
Agreement or the transactions contemplated hereby.
4.4 INVESTMENT. Buyer will acquire the Shares solely for
--- ----------
investment purposes and for its own account and not with a view to the
distribution thereof.
4.5 INFORMATION FURNISHED. To the best knowledge of Global and
--- ---------------------
Buyer, neither this Agreement, nor any written information, instrument, or
document delivered to the Sellers by Global or Buyer pursuant to this Agreement
contains any untrue statement of a
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material fact or omits any material fact necessary to make the statements herein
or therein, as the case may be, not misleading.
4.6 CAPITALIZATION. The authorized capital stock of Global consists
--- --------------
of 50,000,000 shares of Common stock, $.01 par value, of which 17,938,184 shares
are issued and outstanding, and 10,000,000 shares of Preferred Stock, $.01 par
value, of which no shares are issued and outstanding.
4.7 SECURITIES LAWS COMPLIANCE. For the sole purpose of
--- --------------------------
demonstrating compliance with applicable securities laws and without affecting
in any respect any representations or warranties made by Sellers, the Company,
Global or Buyer in this Agreement, Global and Buyer represent that they have had
an adequate opportunity to review the properties, books and records of the
Company and ask questions and receive answers from the officers of the Company
concerning all matters relating to the Company, including the background and
experience of the current officers of the Company, and all such questions have
been answered to their satisfaction.
ARTICLE V
PRE-CLOSING COVENANTS
5.1 CONSENTS OF OTHERS. Prior to the Closing, the Company and the
--- ------------------
Sellers shall use their best efforts to obtain and to cause the Company to
obtain all authorizations, consents and permits required of the Company and the
Sellers to permit them to consummate the transactions contemplated by this
Agreement.
5.2 BEST EFFORTS. Global, Buyer, the Company and the Sellers shall
--- ------------
use all reasonable efforts to cause all conditions for the Closing to be met.
5.3 POWERS OF ATTORNEY. The Company and the Sellers shall cause
--- ------------------
the Company to terminate at or prior to the Closing all powers of attorney
granted by the Company other than those relating to service of process,
qualification or pursuant to governmental regulatory or licensing agreements, or
representation before the IRS or other government agencies.
5.4 CONDUCT OF BUSINESS PENDING CLOSING. From the date of this
--- -----------------------------------
Agreement to the Closing Date:
(I) Except as otherwise contemplated by this Agreement, or
as Buyer may otherwise consent to in writing, the Company and the
Sellers shall conduct the Business only in the ordinary course and
shall not engage in any material activity or enter into any material
transaction which would cause a breach of any of the representations
and warranties contained in Article III.
-----------
(II) The Sellers shall cause the Company to use its best
efforts to preserve substantially intact its current business
organization and present
-20-
relationships with its customers, vendors, suppliers and employees and
to maintain all of its insurance currently in effect.
(III) The Sellers and the Company shall give prompt notice
to Buyer of any notice of material default received by the Company or
the Business subsequent to the date of this Agreement under any
Contract or any Material Adverse Change occurring prior to the Closing
Date in the operation of the Company or the Business.
(IV) Neither the Company nor the Sellers, nor any of their
representatives, shall solicit, encourage or discuss any Acquisition
Proposal (as hereinafter defined) or supply any non-public information
concerning the Company or the Business or the Company's assets to any
party other than Global, Buyer or their representatives. As used
herein, "ACQUISITION PROPOSAL" means any proposal other than the
transactions herein contemplated, for (i) any merger or other business
combination involving the Company or the Business, (ii) the
acquisition of the Company or a material equity interest in the
Company or a material portion of its assets, or (iii) the dissolution
or liquidation of the Company.
5.5 ACCESS TO RECORDS BEFORE CLOSING. Prior to the Closing Date,
--- --------------------------------
the Sellers and the Company agree that they will give, or cause to be given, to
Buyer and their representatives, during normal business hours and at Buyer's
expense, full and unrestricted access to the Company's personnel, officers,
agents, employees, assets, properties, titles, contracts, corporate minute and
other books, records, files and documents of the Sellers with respect to the
Business (including financial, tax basis, budget projections, accountants' work
papers and other information as Buyer may request) and to the Business'
personnel, customers, suppliers and independent accountants, to allow Buyer to
obtain such information as Buyer shall desire, and to make copies of such
information, to the extent reasonably necessary. Additionally, the Sellers and
the Company will provide Buyer opportunities to meet with key employees of the
Business, to visit facilities of the Business and to otherwise conduct due
diligence in respect of the Company and the Business. All materials copied by
Buyer shall be maintained in confidence by Buyer and returned to the Sellers
and/or the Company, as appropriate, if the Closing of the transactions
contemplated hereunder fails to occur.
ARTICLE VI
POST-CLOSING COVENANTS
6.1 GENERAL. In case at any time after the Closing any further
--- -------
action is legally necessary or reasonably desirable (as determined by Buyer and
the Sellers) to carry out the purposes of this Agreement, each of the parties
will take such further action (including the execution and delivery of such
further instruments and documents) as any other party reasonably may request,
all at the sole cost and expense of the requesting party (unless the requesting
party is entitled to indemnification therefor under Article VIII below). The
------------
Sellers and Buyer acknowledge and agree that from and after the Closing, Buyer
will be entitled to possession of all
-21-
documents, books, records, agreements, and financial data of any sort relating
to the Company, which shall be maintained at the chief executive office of the
Company; provided, however, that the Sellers shall be entitled to reasonable
access to and to make copies of such books and records at their sole cost and
expense, and Buyer will maintain all of the same for a period of at least six
(6) years after Closing. Thereafter, the Company will offer such documentation
to the Sellers before disposal thereof.
6.2 TRANSITION. For a period of three (3) years following Closing,
--- ----------
the Sellers will not take any action that primarily is designed or intended to
have the effect of discouraging any lessor, licensor, customer, supplier, or
other business associate of the Company from maintaining the same business
relations with the Company after the Closing as it maintained with the Company
prior to the Closing. For a period of three (3) years following Closing, the
Sellers will refer all customer inquiries relating to the Business to the
Company.
6.3 CONFIDENTIALITY. The Sellers will treat and hold as such all
--- ---------------
Confidential Information, refrain from using any of the Confidential Information
except in connection with this Agreement or otherwise for the benefit of the
Company or Buyer for a period of three (3) years from the Closing, and deliver
promptly to Buyer or destroy, at the written request and option of Buyer, all
tangible embodiments (and all copies) of the Confidential Information which are
in their possession, except as otherwise permitted herein. In the event that
any Seller is requested or required (by oral question or written request for
information or documents in any legal proceeding, interrogatory, subpoena, civil
investigative demand, or similar legal proceeding) to disclose any Confidential
Information, such Seller will notify Buyer promptly of the request or
requirement.
6.4 COVENANT NOT TO COMPETE. For and in consideration of the
--- -----------------------
allocation to Xxxx X. Xxxxx of $50,000 and the allocation to Xxxxx X. XxXxxxxx
of $5,000 of the Purchase Price paid to the Sellers by Buyer, each Seller
covenants and agrees, for a period of three (3) years from and after the Closing
Date, that he will not, directly or indirectly without the prior written consent
of Buyer, for or on behalf of any entity:
(A) become interested or engaged, directly or indirectly, as a
shareholder, bondholder, creditor, officer, director, partner, agent, contractor
with, employer or representative of, or in any manner associated with, or give
financial, technical or other assistance to, any Person, firm or corporation for
the purpose of engaging in the copier/office equipment or electronic
presentation equipment dealer, service or distribution business in competition
with the Company, within the greater of (i) a 100 mile radius of the Company's
office facilities in the State of North Carolina (the "CURRENT TRADE AREA") or
(ii) in any geographic area in which the Company currently conducts business;
(B) enter into any agreement with, service, assist or solicit the
business of any customers of the Company for the purpose of providing office and
electronic presentation equipment sales or service to such customers in
competition with the Company in the Current Trade Area or to cause them to
reduce or end their business with the Company; or
-22-
(C) enter into any agreement with, or solicit the employment of
employees, consultants or representatives of the Company for the purpose of
causing them to leave the employment of the Company;
provided, however, that no owner of less than one percent (1%) of the
outstanding stock of any publicly-traded corporation shall be deemed to be in a
violation of this Section 6.4 solely by reason thereof.
-----------
6.5 ADDITIONAL MATTERS.
--- ------------------
(A) The Sellers shall cause the Company to file with the
appropriate governmental authorities all Tax Returns required to be filed by it
for any taxable period ending prior to the Closing Date and the Company shall
remit any Taxes due in respect of such Tax Returns. In addition, the Sellers
shall cause Xxxxxx Xxxxx & Associates, CPA to prepare a short period tax return
for the Company covering the period from December 31, 1997 through August 31,
1998. The cost of preparation of such short period tax return shall be paid for
by the Sellers.
(B) Buyer and the Sellers recognize that each of them will need
access, from time to time, after the Closing Date, to certain accounting and Tax
records and information held by Buyer and/or the Company to the extent such
records and information pertain to events occurring on or prior to the Closing
Date; therefore, Buyer agrees to cause the Company to (A) use its best efforts
to properly retain and maintain such records for a period of six (6) years from
the date the Tax Returns for the year in which the Closing occurs are filed or
until the expiration of the statute of limitations with respect to such year,
whichever is later, and (B) allow each Seller and his agents and representatives
at times and dates mutually acceptable to the parties, to reasonably inspect,
review and make copies of such records from time to time, such activities to be
conducted during normal business hours and at the inspecting party's expense.
(C) The Sellers, the Buyer and Global shall join in making a
timely election (but in no event later than 180 days following the Closing)
under Section 338(h)(10) of the Code (including the prerequisite election under
Section 338 of the Code) and any similar state law provisions in all applicable
states which permit corporations to make such elections, with respect to the
sale and purchase of the Shares pursuant to this Agreement, and each party shall
provide the others all necessary information to permit such elections to be
made. The Buyer, Global and the Sellers shall, as promptly as practicable
following the Closing Date, take all actions necessary and appropriate
(including filing such forms, returns, schedules and other documents as may be
required) to effect and preserve timely elections; provided, however, that the
Buyer and Global shall be the party responsible for preparing and filing the
forms, returns, schedules and other documents necessary for making an effective
and timely election. All Taxes attributable to the elections made pursuant to
this Section 6.5(c) shall be the liability of the Sellers; provided, however,
that (i) Global or the Buyer shall make a one-time payment prior to such
election to reimburse the Sellers for any additional Taxes and other costs
solely as a result of such election, (ii) said reimbursement shall be grossed up
so that the Sellers will be made whole, after taxes, for the additional Taxes to
be paid, (iii) the one-time reimbursement payment shall be mutually agreed upon
by the Sellers and Global, and (iv) in the event the one-time
-23-
payment described in clause (i) above in this Section 6.5(c) differs from the
---------- --------------
actual Taxes and other costs owed solely as a result of such election, then (x)
to the extent the payment is less than the actual Taxes and other costs, Global
or the Buyer shall make a payment to Sellers in the amount of such difference,
or (y) to the extent the payment is more than the actual Taxes and other costs,
Sellers shall make a payment to Global or the Buyer, at the discretion of
Global, in the amount of such difference; provided however, that Sellers shall
provide Global and Buyer with a copy of Sellers' federal and state income tax
returns for such year encompassing payment for the Taxes resulting from such
election. In connection with such elections, within sixty (60) days following
the Closing Date, the Buyer, Global and the Sellers shall act together in good
faith to determine and agree upon the "deemed sales price" to be allocated to
each asset of the Company in accordance with Treasury Regulation Section
1.338(h)(10)-1(f) and the other regulations under Section 338 of the Code.
Notwithstanding the generality of immediately preceding sentence, the Buyer,
Global and the Sellers agree that the "deemed sales price" shall be allocated to
the monetary assets of the Company at their fair market value as of the Closing
Date as determined as part of the determination of the Working Capital of the
Company in accordance with Section 2.8 hereof, $55,000 shall be allocated to the
covenant not to complete contained in Section 6.4 hereof, and the balance of the
"deemed sales price" shall be allocated to the fixed assets, goodwill and other
intangible assets of the Company. Each of the Buyer, Global and the Sellers
shall report the tax consequences of the transactions contemplated by this
Agreement consistently with such allocations and shall not take any position
inconsistent with such allocations in any Tax Return or otherwise. In the event
that Global and the Sellers are unable to agree as to such allocations, Global's
reasonable positions with respect to such allocations shall control. The Sellers
shall be liable for, and shall indemnify and hold the Buyer, Global and the
Company harmless against, any Taxes or other costs attributable solely to (i) a
failure on the part of any Seller to take all actions required of him under this
Section 6.5(c); or (ii) a failure on the part of the Company to qualify, at or
prior to the Closing, as an "S corporation" for federal and/or state income Tax
purposes.
ARTICLE VII
CONDITIONS TO OBLIGATION OF PARTIES TO CONSUMMATE CLOSING
7.1 CONDITIONS TO GLOBAL'S AND BUYER'S OBLIGATIONS. The obligation
--- ----------------------------------------------
of Global and Buyer under this Agreement to consummate the Closing is subject to
the conditions that:
(A) COVENANTS, REPRESENTATIONS AND WARRANTIES. The Company and
--- -----------------------------------------
the Sellers shall have performed in all material respects all obligations and
agreements and complied in all material respects with all covenants contained in
this Agreement to be performed and complied with by each of them prior to or at
the Closing Date. The representations and warranties of the Company and the
Sellers set forth in this Agreement shall be accurate in all material respects
at and as of the Closing Date with the same force and effect as though made on
and as of the Closing Date, except for any changes resulting from activities or
transactions which may have taken place after the date hereof and which are
permitted or contemplated by this Agreement or which have been entered into in
the ordinary course of business and except to the
-24-
extent that such representations and warranties are expressly made as of another
specified date and, as to such representation, the same shall be true in all
material respects as of such specified date. In addition, Buyer shall have
determined from its due diligence review of the Company that no Material Adverse
Change or Material Adverse Effect shall have occurred in the financial
condition, business, operations or prospects of the Company from those presented
to Buyer.
(B) CONSENTS. All statutory requirements for the valid consummation
--- --------
by the Company and the Sellers of the transactions contemplated by this
Agreement shall have been fulfilled and all authorizations, consents and
approvals, including expiration or early termination of all waiting periods
under the HSR Act and those of all federal, state, local and foreign
governmental agencies and regulatory authorities required to be obtained in
order to permit the consummation of the transactions contemplated hereby shall
have been obtained in form and substance reasonably satisfactory to Buyer,
unless such failure could not reasonably be expected to have a Material Adverse
Effect. All approvals of the Board of Directors and shareholders of the Company
necessary for the consummation of this Agreement and the transactions
contemplated hereby shall have been obtained.
(C) SUPPLIERS/LEASES. The Sellers shall have obtained, where
--- ----------------
necessary, the written consent of (i) the Company's Material office equipment
suppliers and (ii) the lessors of the Buildings to the transactions contemplated
by the Agreement. The lessors of the Buildings shall have provided an Estoppel
Certificate to Global's lenders in substantially the same form as Exhibit B
---------
hereto, except as specifically waived by Global.
(D) DISCHARGE OF INDEBTEDNESS AND LIENS. The Sellers and the Company
--- -----------------------------------
shall have provided for the payment in full by the Company of all Funded
Indebtedness of the Company. Such Funded Indebtedness, if any, as of August 31,
1998, is listed on Schedule 7.1(d) hereto. The Sellers shall have also provided
---------------
for the termination of all Encumbrances of record on the properties of the
Company, except for Permitted Exceptions. All liens or UCC filings against the
Company and each of the Subsidiaries or Affiliates of the Company which engaged
in the Business other than Permitted Exceptions shall have been terminated as of
the Closing.
(E) MATERIAL ADVERSE CHANGE. There has been no Material Adverse
--- -----------------------
Change with respect to the Company since July 31, 1998.
(F) TRANSFER TAXES AND BROKERS FEES. The Sellers shall be
--- -------------------------------
responsible for all stock transfer or gains taxes imposed on the Sellers
incurred in connection with this Agreement and for all fees and expenses paid or
to be paid to the brokers set forth on Schedule 3.23.
(G) DOCUMENTS TO BE DELIVERED BY THE SELLERS AND THE COMPANY. The
--- --------------------------------------------------------
following documents shall be delivered at the Closing by the Sellers and the
Company:
(I) OPINION OF THE SELLERS' COUNSEL. Global and Buyer shall
--- -------------------------------
have received an opinion of counsel to the Company and the Sellers, dated the
-25-
Closing Date, in substantially the same form as the form of opinion that is
Exhibit C hereto.
---------
(II) CERTIFICATES. Global and Buyer shall have received an
---- ------------
officer's certificate and a secretary's certificate of the Company executed by
officers of the Company, dated the Closing Date, in substantially the same forms
as the forms of certificates that are Exhibit D-1 and D-2, respectively, hereto.
----------- ---
(III) RELEASE. The Sellers shall have furnished the Company with a
----- -------
general release in substantially the same form as the form attached as Exhibit E
---------
hereto.
(IV) ESCROW AGREEMENT. The Sellers shall have delivered to Buyer
---- ----------------
at the Closing the duly executed Escrow Agreement required pursuant to Section
-------
2.5 hereof.
---
(V) EMPLOYMENT AGREEMENT. Xxxx X. Xxxxx shall have duly executed
--- --------------------
and delivered the Employment Agreement in substantially the same form attached
as Exhibit F hereto, pursuant to which he will be employed by the Company
---------
following the Closing.
(VI) COMPLIANCE AGREEMENT. Xxxxx X. XxXxxxxx shall have duly
---- --------------------
executed and delivered the Compliance Agreement in substantially the same form
attached as Exhibit G hereto, pursuant to which she will be employed by the
Company following the Closing.
(VII) BUILDING LEASES. Buyer shall be reasonably satisfied with the
----- ---------------
terms of the leases of the Buildings. The Sellers shall have delivered to Global
an Estoppel Certificate of the landlords of the Buildings to Global's lenders in
substantially the same form as the form attached as Exhibit B hereto, except as
---------
specifically waived by Global.
(VIII) PERSONAL VEHICLES. Sellers shall have removed all personal
------ -----------------
vehicles from the Business.
(IX) SELLERS RECEIVABLES. The Sellers shall, and the Company shall
---- -------------------
have caused, all of the Company's officers, directors and/or employees to have
repaid in full all debts and other obligations, if any, owed to the Company;
(X) EQUITY SUBSCRIPTION AGREEMENT. The Sellers shall have
--- -----------------------------
executed and delivered to Global an Equity Subscription Agreement in
substantially the same form as the form attached hereto as Exhibit I.
---------
(XI) STOCK CERTIFICATES. The Sellers shall have delivered the
---- ------------------
Shares accompanied by duly executed stock powers, together with any stock
transfer stamps or receipts for any transfer taxes required to be paid thereon.
-26-
7.2 CONDITIONS TO THE SELLERS' AND THE COMPANY'S OBLIGATIONS. The
------------------------------------------------------------
obligation of the Sellers and the Company under this Agreement to consummate
the Closing is to subject the conditions that:
(A) COVENANTS, REPRESENTATIONS AND WARRANTIES. Global and
------------------------------------------------
Buyer shall have performed in all material respects all obligations and
agreements and complied in all material respects with all covenants contained in
this Agreement to be performed and complied with by Global and Buyer prior to or
at the Closing and the representations and warranties of Global and Buyer set
forth in Article IV hereof shall be accurate in all material respects, at and as
of the Closing Date, with the same force and effect as though made on and as of
the Closing Date except for any changes resulting from activities or
transactions which may have taken place after the date hereof and which are
permitted or contemplated by the Agreement or which have been entered into in
the ordinary course of the Business and except to the extent that such
representations and warranties are expressly made as of another specified date
and, as to such representations, the same shall be true as of such specified
date.
(B) CONSENTS. All statutory requirements for the valid
---------------
consummation by Global and Buyer of the transactions contemplated by this
Agreement shall have been fulfilled and all authorizations, consents and
approvals, including expiration or early termination of all waiting periods
under the HSR Act and those of all federal, state, local and foreign
governmental agencies and regulatory authorities required to be obtained in
order to permit the consummation by Global and Buyer of the transactions
contemplated hereby shall have been obtained unless such failure shall not
have a Material Adverse Effect on the Business. Buyer shall have used its
reasonable efforts to have obtained the release of the Sellers from all
personal guarantees with respect to the Company.
(C) DOCUMENTS TO BE DELIVERED BY GLOBAL AND BUYER. The
----------------------------------------------------
following documents shall be delivered at the Closing by Global and Buyer:
(i) Certificates. The Sellers shall have received an
-------------------
officers' certificate and a secretary's certificate executed by
officers of Global and Buyer, dated the Closing Date, in substantially
the same forms as the forms of certificates that are Exhibit H-1 and
-----------
H-2, respectively, hereto.
---
(II) ESCROW AGREEMENT. Buyer shall have delivered to
-----------------------
the Sellers at the Closing the duly executed Escrow Agreement required
pursuant to Section 2.5 hereof.
(III) EMPLOYMENT AGREEMENTS. Buyer shall have caused
----------------------------
the Company to duly execute and deliver the Employment Agreement with
Xxxx X. Xxxxx in the same form attached as Exhibit F hereto, pursuant
---------
to which he will be employed by the Company following the Closing, and
the Compliance Agreement with Xxxxx X. XxXxxxxx substantially in the
form attached as Exhibit G hereto, pursuant to which she will be
---------
employed by the Company following the Closing.
-27-
(IV) EQUITY SUBSCRIPTION AGREEMENT. Global shall have
------------------------------------
executed and delivered to Sellers an Equity Subscription Agreement in
substantially the same form as the form attached hereto as Exhibit I,
---------
which Equity Subscription Agreement includes the requirement for the
delivery of Global Stock certificates in accordance with Section
-------
2.3(c) promptly after Closing.
------
(D) PAYMENTS TO THE SELLERS AND THE COMPANY AND THE ESCROW
-------------------------------------------------------------
AGENT. The Sellers shall have received the Purchase Price for the Shares. The
-----
Escrow Agent shall have received the Escrow Sum from Buyer.
ARTICLE VIII
INDEMNIFICATION
8.1 INDEMNIFICATION OF GLOBAL AND BUYER. Except as provided in
----------------------------------------
Section 8.6, as Global's and Buyer's sole and exclusive monetary remedy for any
-----------
breach by the Sellers hereunder, the Sellers agree to jointly and severally
indemnify and hold harmless Global, Buyer and each officer, director, and
affiliate of Global and Buyer, including without limitation the Company or any
successor of the Company (collectively, the "INDEMNIFIED PARTIES") from and
against any and all damages, losses, claims, liabilities, demands, charges,
suits, penalties, costs and expenses (including court costs and reasonable
attorneys' fees and expenses incurred in investigating and preparing for any
litigation or proceeding) (collectively, the "INDEMNIFIABLE COSTS"), which any
of the Indemnified Parties may sustain, or to which any of the Indemnified
Parties may be subjected, arising out of (A) any misrepresentation, breach or
default by the Sellers or the Company of or under any of the representations,
covenants, agreements or other provisions of this Agreement or any agreement or
document executed in connection herewith; (B) the assertion and final
determination of any claim or liability against the Company or any of the
Indemnified Parties by any Person based upon the facts which form the alleged
basis for any litigation to the extent it should have been, but was not,
reserved for in the Financial Statements in accordance with GAAP, as adjusted
for agreed upon assets and liabilities as set forth on Schedule 3.7; (C) the
------------
Company's tortuous acts or omissions to act prior to Closing for which the
Company did not carry liability insurance for themselves as the insured party,
whether or not such acts or omissions to act result in a breach or violation of
any representation or warranty; (D) the extent to which the average annual
revenue has exceeded the average annual cost of goods sold, before interest and
taxes, under the Master Purchase Agreement with NationsBanc, Inc. described on
Schedule 3.15 hereof in the event such Master Purchase Agreement is terminated
-------------
as a result of the sale of stock to Buyer or the fact that Buyer is not a female
owned business; (E) the extent to which the average annual revenue has exceeded
the average annual cost of goods sold, before interest and taxes, under the
Epson Authorized Reseller Agreement with Epson America, Inc. as described on
Schedule 3.15 hereof in the event the Epson Authorized Reseller Agreement is
-------------
terminated due to the discrepancy between the Company's name in this Agreement
and the name utilized by the Company in the Epson Authorized Reseller Agreement;
and (F) the extent to which the average annual revenue has exceeded the average
annual cost of goods sold, before interest and taxes, under the Reseller
Agreement with InFocus Systems, Inc. as described on Schedule 3.15 hereof in the
-------------
event the Reseller Agreement is terminated due to the discrepancy
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between the Company's name in this Agreement and the name utilized by the
Company in the Reseller Agreement.
8.2 DEFENSE OF CLAIMS. If any legal proceeding shall be
--------------------
instituted, or any claim or demand made, against any Indemnified Party in
respect of which the Sellers may be liable hereunder, such Indemnified Party
shall give prompt written notice thereof to the Sellers and, except as otherwise
provided in Section 8.4 below, the Sellers shall have the right to defend, or
-----------
cause the Company or its successors to defend, any litigation, action, suit,
demand, or claim for which it may seek indemnification unless, in the good faith
judgment of Buyer following consultation with the Sellers, such litigation,
action, suit, demand, or claim, or the resolution thereof, would have an ongoing
material business effect on Global or Buyer, the Company or its successors, and
such Indemnified Party shall extend reasonable cooperation in connection with
such defense, which shall be at the Sellers' expense. In the event the Sellers
fail or refuse to defend the same within a reasonable length of time, the
Indemnified Parties shall be entitled to assume the defense thereof, and the
Sellers shall be jointly and severally liable to repay the Indemnified Parties
for all expenses reasonably incurred in connection with said defense (including
reasonable attorneys' fees and settlement payments) if it is determined that
such request for indemnification was proper. If the Sellers shall not have the
right to assume the defense of any litigation, action, suit, demand, or claim in
accordance with either of the two preceding sentences, the Indemnified Parties
shall have the absolute right to control the defense of and to settle, in
Indemnified Parties' sole discretion such litigation, action, suit, demand, or
claim, but each Seller shall be entitled, at his own expense, to participate in
such litigation, action, suit, demand, or claim.
8.3 ESCROW CLAIM. If any claim for indemnification is made by an
------------------
Indemnified Party or a Seller pursuant to this Article VIII prior to the
------------
expiration of the Escrow Period, such Indemnified Party or Seller shall first
apply to the Escrow Agent for reimbursement of such claim in accordance with the
provisions of the Escrow Agreement prior to seeking reimbursement for such
claim.
8.4 TAX AUDITS, ETC. In the event of an audit of any Tax Return of
--------------------
the Company with respect to which an Indemnified Party might be entitled to
indemnification pursuant to this Article VIII, Global shall have the right to
------------
control any and all such audits which may result in the assessment of additional
Taxes against the Company and any and all subsequent proceedings in connection
therewith, including appeals. The Sellers shall cooperate fully in all matters
relating to any such audit or other Tax proceeding (including according access
to all records pertaining thereto), and will execute and file any and all
consents, powers of attorney, and other documents as shall be reasonably
necessary in connection therewith. If additional Taxes are payable by the
Company as a result of any such audit or other proceeding, the Sellers shall be
responsible for and shall promptly pay all Taxes, interest, and penalties to
which any of the Indemnified Parties shall be entitled to indemnification.
8.5 INDEMNIFICATION OF THE SELLERS. Global and Buyer agree to
-----------------------------------
jointly and severally indemnify and hold harmless the Sellers and the Company
and each officer, director, stockholder or affiliate of the Company, from and
against any Indemnifiable Costs arising out of
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any material misrepresentation, breach or default by Global and Buyer of or
under any of the covenants, agreements or other provisions of this Agreement or
any agreement or document executed in connection herewith. In addition, the
Company and Buyer shall indemnify the Sellers for any payment or satisfaction of
any guarantees by the Sellers of the Company's obligations occurring after the
Closing Date.
8.6 LIMITS ON INDEMNIFICATION. All Indemnifiable Costs sought by
------------------------------
any party hereunder shall be net of any insurance proceeds received by such
Person with respect to such claim (less the present value of any premium
increases occurring as a result of such claim). Except for any claims for
breach of the representations, warranties and covenants of the Sellers under
Sections 3.1, 3.2, 3.3, 3.14, 3.17, 3.26 or 6.5 hereof (for which
---------------------------------------- ---
indemnification claims must be made prior to the expiration of the applicable
statute of limitations and if so made, such claims shall continue after such
date until finally resolved), the right to make claims for indemnification
provided under this Article VIII shall expire on the third anniversary of the
------------
Closing Date (except for claims made prior to such date which shall continue
after such date until finally resolved). The Sellers shall not be obligated to
pay any amounts for indemnification under this Article VIII until the aggregate
------------
indemnification obligation hereunder exceeds $10,413, whereupon the Sellers
shall be liable for all amounts in excess of $10,413 for which indemnification
may be sought. Notwithstanding the foregoing, such $10,413 amount in the
preceding sentence shall be reduced to the extent the Working Capital as
reflected on the Closing Balance Sheet is less than the Working Capital in the
Preliminary Closing Balance Sheet. Notwithstanding the foregoing, in no event
shall the aggregate liability of the Sellers to Global and Buyer hereunder
exceed the Purchase Price. Global and Buyer shall not be obligated to pay any
amounts for indemnification under this Article VIII until the aggregate
------------
indemnification obligation hereunder exceeds $25,000, whereupon Global and Buyer
shall be liable for all amounts in excess of $25,000 for which indemnification
may be sought. Notwithstanding the foregoing, in no event shall the aggregate
liability of Global and Buyer to the Sellers hereunder exceed the Purchase
Price. However nothing in this Article VIII shall limit Global and Buyer or the
------------
Sellers in exercising or securing any remedies provided by applicable common law
with respect to the conduct of the Sellers or Global and Buyer in connection
with this Agreement or in the amount of damages that it can recover from the
other in the event that Global and Buyer or the Sellers successfully proves
intentional fraud or intentional fraudulent conduct in connection with this
Agreement.
ARTICLE IX
MISCELLANEOUS
9.1 MODIFICATIONS. Any amendment, change or modification of this
------------------
Agreement shall be void unless in writing and signed by all parties hereto. No
failure or delay by any party hereto in exercising any right, power or privilege
hereunder (and no course of dealing between or among any of the parties) shall
operate as a waiver of any such right, power or privilege. No waiver of any
default on any one occasion shall constitute a waiver of any subsequent or other
default. No single or partial exercise of any such right, power or privilege
shall preclude the further or full exercise thereof.
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9.2 NOTICES. All notices and other communications hereunder shall
------------
be in writing and shall be deemed to have been duly given when personally
delivered, or 48 hours after deposited in the United States mail, first-class,
postage prepaid, or by facsimile addressed to the respective parties hereto as
follows:
Global or Buyer:
---------------
c/o Global Imaging Systems, Inc.
13902 North Xxxx Xxxxx Road, Suite 300
Box 273478
Xxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxx Xxxxxxx, President
Fax No.: (000) 000-0000
Tel No.: (000) 000-0000
With a copy to:
--------------
Xxxxx & Xxxxxxx L.L.P.
Xxxxxxxx Xxxxxx
Xxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxxxxxx X. Xxxxx
Fax No.: (000) 000-0000
Tel No.: (000) 000-0000
And with a copy to:
------------------
Southern Business Communications, Inc.
0000 Xxxx Xxxxxx Xxxx Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxx
Fax No.: (000) 000-0000
Tel No.: (000) 000-0000
The Company:
-----------
ProView, Inc.
000 X. Xxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxx
Fax No.: (000) 000-0000
Tel No.: (000) 000-0000
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And with a copy to:
------------------
Xxxxxxxxx & Xxxxxx, P.A.
0000 Xxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxx Xxxxxxxxx
Fax No.: (000) 000-0000
Tel No.: (000) 000-0000
Sellers:
-------
Xxxx X. Xxxxx and Xxxxx X. XxXxxxxx
c/o ProView, Inc.
000 X. Xxxxxxxxxxx Xxxxxx, Xxxxx 000
Fax No.: (000) 000-0000
Tel No.: (000) 000-0000
or to such other address as to any party hereto as such party shall designate by
like notice to the other parties hereto.
9.3 COUNTERPARTS; FACSIMILE TRANSMISSION. This Agreement may be
-----------------------------------------
executed in several counterparts, each of which shall be deemed an original but
all of which counterparts collectively shall constitute one instrument, and in
making proof of this Agreement, it shall never be necessary to produce or
account for more than one such counterpart. Signatures of a party to this
Agreement or other documents executed in connection herewith which are sent to
the other parties by facsimile transmission shall be binding as evidence of
acceptance of the terms hereof or thereof by such signatory party, with
originals to be circulated to the other parties in due course.
9.4 EXPENSES. Each of the parties hereto will bear all costs,
-------------
charges and expenses incurred by such party in connection with this Agreement
and the consummation of the transactions contemplated herein; provided, however,
that the Sellers shall bear all costs and expenses of (i) any broker involved in
this transaction and (ii) all legal expenses of the Sellers and the Company with
respect to this Agreement and the transactions contemplated hereby.
9.5 BINDING EFFECT; ASSIGNMENT. This Agreement shall be binding
-------------------------------
upon and inure to the benefit of the Company, Global, Buyer and the Sellers,
their heirs, representatives, successors, and permitted assigns, in accordance
with the terms hereof. This Agreement shall not be assignable by the Company or
the Sellers without the prior written consent of Global. This Agreement shall
be assignable by Global or Buyer to a wholly-owned subsidiary of Global or Buyer
without the prior written consent of the Sellers, but any such assignment shall
not relieve Global of its obligations hereunder. In addition, the
indemnification rights of Global and Buyer under Article VIII hereof may be
------------
assigned by Global and Buyer to First Union National Bank, N.A.
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9.6 ENTIRE AND SOLE AGREEMENT. This Agreement and the other
-------------------------------
schedules and agreements referred to herein, constitute the entire agreement
between the parties hereto and supersede all prior agreements, representations,
warranties, statements, promises, information, arrangements and understandings,
whether oral or written, express or implied, with respect to the subject matter
hereof, except as described on Schedule 9.6 attached hereto.
------------
9.7 GOVERNING LAW. This Agreement and its validity, construction,
-------------------
enforcement, and interpretation shall be governed by the substantive laws, but
not the conflicts of laws, of the State of North Carolina.
9.8 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS.
-----------------------------------------------------------
Regardless of any investigation at any time made by or on behalf of any party
hereto or of any information any party may have in respect thereof, all
covenants, agreements, representations, and warranties and the related
indemnities made hereunder or pursuant hereto or in connection with the
transactions contemplated hereby shall survive the Closing for a period of three
(3) years, provided (a) the representations and warranties contained in Sections
--------
3.14 and 3.17 of this Agreement, and the related indemnities, shall survive the
---- ----
Closing until the expiration of the applicable statutes of limitations for
determining or contesting Tax liabilities, (b) the representations, warranties
and covenants contained in Sections 3.1, 3.2, 3.3, and 6.5 of this Agreement,
------------ --- --- ---
and the related indemnities, shall survive the Closing indefinitely and not
expire.
9.9 INVALID PROVISIONS. If any provision of this Agreement is
-----------------------
deemed or held to be illegal, invalid or unenforceable, this Agreement shall be
considered divisible and inoperative as to such provision to the extent it is
deemed to be illegal, invalid or unenforceable, and in all other respects this
Agreement shall remain in full force and effect; provided, however, that if any
provision of this Agreement is deemed or held to be illegal, invalid or
unenforceable there shall be added hereto automatically a provision as similar
as possible to such illegal, invalid or unenforceable provision and be legal,
valid and enforceable. Further, should any provision contained in this
Agreement ever be reformed or rewritten by any judicial body of competent
jurisdiction, such provision as so reformed or rewritten shall be binding upon
all parties hereto.
9.10 PUBLIC ANNOUNCEMENTS. Neither party shall make any public
--------------------------
announcement of the transactions contemplated hereby without the prior written
consent of the other party, which consent shall not be unreasonably withheld.
9.11 REMEDIES CUMULATIVE. The remedies of the parties under this
-------------------------
Agreement are cumulative and shall not exclude any other remedies to which any
party may be lawfully entitled.
9.12 WAIVER. No failure or delay on the part of any party in
------------
exercising any right, power, or privilege hereunder or under any of the
documents delivered in connection with this Agreement shall operate as a waiver
of such right, power, or privilege; nor shall any single or partial exercise of
any such right, power, or privilege preclude any other or further exercise
thereof or the exercise of any other right, power, or privilege.
-33-
9.13 DISPUTE RESOLUTION. ALL DISPUTES BETWEEN THE SELLERS AND
------------------------
GLOBAL AND BUYER WITH RESPECT TO ANY PROVISION OF THIS AGREEMENT OR THE RIGHTS
AND OBLIGATIONS OF THE SELLERS AND GLOBAL AND BUYER HEREUNDER (OTHER THAN
DISPUTES INVOLVING ALLEGATIONS OF INTENTIONAL FRAUD), WHICH CANNOT BE RESOLVED
BY MUTUAL AGREEMENT, WILL BE RESOLVED BY BINDING ARBITRATION IN ACCORDANCE WITH
THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION IN CHARLOTTE, NORTH CAROLINA,
OR BY ANY OTHER MEANS OF ALTERNATIVE DISPUTE RESOLUTION MUTUALLY AGREED UPON BY
THE PARTIES. EACH PARTY SHALL BE ENTITLED TO DISCOVERY PURSUANT TO THE FEDERAL
RULES OF CIVIL PROCEDURE AND FEDERAL RULES OF EVIDENCE.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed as of the date and year first above written.
GLOBAL:
------
GLOBAL IMAGING SYSTEMS, INC.
By: /s/ Xxxxxxx Xxxxxxxxx
--------------------------------------------------
Xxxxxxx Xxxxxxxxx
Vice President, Chief Financial Officer, Secretary
and Treasurer
BUYER:
-----
SOUTHERN BUSINESS COMMUNICATIONS, INC.
By: /s/ Xxxx Xxxxx
--------------------------------------------------
Xxxx Xxxxx
President
THE COMPANY:
-----------
PROVIEW, INC.
By: /s/ Xxxx X. Xxxxx
--------------------------------------------------
Xxxx X. Xxxxx
President
THE SELLERS:
-----------
/s/ Xxxx X. Xxxxx
-------------------------------------------------------
Xxxx X. Xxxxx
/s/ Xxxxx X. XxXxxxxx
-------------------------------------------------------
Xxxxx X. XxXxxxxx
The Exhibits and Schedules to this Stock Purchase Agreement are not included
with this Quarterly Report on Form 10-Q. Global will provide these exhibits and
schedules upon the request of the Securities and Exchange Commission
-35-
