EXHIBIT 2.1
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Execution Copy
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ASSET PURCHASE AGREEMENT
BY AND AMONG
ACTRADE FINANCIAL TECHNOLOGIES LTD.,
ACTRADE CAPITAL INC.
AND
THE CIT GROUP/COMMERCIAL SERVICES, INC.
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DATED AS OF SEPTEMBER 11, 2003
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Table of Contents
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Page
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1. Purchase and Sale..........................................................1
1.1 Assets to Be Transferred..........................................1
1.2 Excluded Assets...................................................2
1.3 Assumed Liabilities...............................................3
1.4 Excluded Liabilities..............................................3
1.5 Purchase Price; Allocation of Purchase Price......................4
1.6 Closing...........................................................4
1.7 Closing Deliveries by the Sellers.................................4
1.8 Closing Deliveries by the Purchaser...............................4
2. Representations and Warranties of the Sellers..............................5
2.1 Due Incorporation and Authority...................................5
2.2 No Conflicts......................................................5
2.3 Organizational Documents..........................................6
2.4 Property..........................................................6
2.5 Intellectual Property.............................................6
2.6 Brokers...........................................................7
2.7 Disclaimer........................................................7
3. Representations and Warranties of the Purchaser............................7
3.1 Due Incorporation and Authority...................................7
3.2 No Conflicts......................................................8
3.3 Brokers...........................................................8
3.4 Financing.........................................................8
3.5 Litigation........................................................8
3.6 Independent Investigation.........................................8
4. Covenants and Agreements...................................................9
4.1 Conduct of Business...............................................9
4.2 Confidentiality...................................................9
4.3 Expenses.........................................................10
4.4 Public Announcements.............................................10
4.5 Access to Information............................................10
4.6 Regulatory and Other Authorizations; Consents....................10
4.7 Further Action; Additional Assignments of Intellectual
Property.........................................................11
4.8 Software.........................................................11
4.9 Directors, Officers and Affiliates...............................11
4.10 Tax Matters......................................................12
5. Conditions Precedent to the Obligation of the Purchaser...................12
5.1 Representations and Warranties; Covenants........................12
5.2 No Order.........................................................13
5.3 Bankruptcy Filing................................................13
5.4 Intellectual Property Assignments................................13
6. Conditions Precedent to the Obligation of the Sellers.....................13
6.1 Representations and Warranties; Covenants........................13
6.2 No Order.........................................................13
6.3 Sale Order.......................................................14
7. Termination of Agreement..................................................14
7.1 Termination......................................................14
7.2 Survival After Termination.......................................14
7.3 Waiver...........................................................14
8. Miscellaneous.............................................................15
8.1 Certain Definitions..............................................15
8.2 Survival.........................................................19
8.3 Consent to Jurisdiction; Service of Process; Waiver of
Jury Trial.......................................................19
8.4 Notices..........................................................20
8.5 Entire Agreement.................................................21
8.6 Waivers and Amendments...........................................21
8.7 Governing Law....................................................21
8.8 Binding Effect; Assignment.......................................22
8.9 Usage............................................................22
8.10 Articles and Sections............................................22
8.11 Interpretation...................................................22
8.12 Severability of Provisions.......................................22
8.13 Counterparts.....................................................22
8.14 No Third Party Beneficiaries.....................................22
SCHEDULES
1.1(f) Registered URLs
2.2(b) Sellers Consents and Notices
2.4 Liens
2.5 Intellectual Property
8.1(a) Included Software
EXHIBITS
A Form of Assumption Agreement
B Form of Xxxx of Sale
ASSET PURCHASE AGREEMENT, dated as of September 11, 2003 (the
"AGREEMENT"), by and among Actrade Financial Technologies Ltd., a Delaware
corporation ("FINANCIAL"), Actrade Capital Inc., a Delaware corporation
("CAPITAL" and, together with Financial, the "SELLERS"), and The CIT
Group/Commercial Services, Inc., a New York corporation (the "PURCHASER").
Capitalized terms used and not otherwise defined herein shall have the
respective meanings ascribed to them in Section 8.1(a).
W I T N E S S E T H:
WHEREAS, the Sellers have engaged in the United States in the business
of providing payment technologies that deliver financial solutions for
commercial trade through their trade acceptance draft program (including the
electronic on-line version thereof), which enables suppliers of commercial goods
and services to offer credit terms to their customers through the use of
pre-authorized debit trade acceptance drafts (the "BUSINESS");
WHEREAS, the Sellers have each filed a voluntary bankruptcy petition
for relief in the United States Bankruptcy Court for the Southern District of
New York (the "BANKRUPTCY CASE") pursuant to chapter 11 of title 11 of the
United States Codes, 11 U.S.C. xx.xx. 101 ET SEQ. (the "BANKRUPTCY CODE");
WHEREAS, the Sellers intend to seek an order of the United States
Bankruptcy Court for the Southern District of New York (the "BANKRUPTCY COURT")
approving this Agreement and authorizing the Sellers to consummate the
transactions contemplated hereby; and
WHEREAS, the Sellers desire to sell and assign to the Purchaser and the
Purchaser desires to purchase and assume from the Sellers the Assets and the
Assumed Liabilities, upon the terms and subject to the conditions set forth
herein (the "ACQUISITION");
NOW, THEREFORE, in consideration of the premises and the mutual
agreements and covenants hereinafter set forth, the Sellers and the Purchaser
hereby agree as follows:
1. PURCHASE AND SALE.
1.1 ASSETS TO BE TRANSFERRED. On the terms and subject to the
conditions set forth in this Agreement and the Sale Order, the Sellers shall, on
the Closing Date, sell, assign, transfer, convey and deliver (or cause to be
transferred, sold, assigned, conveyed and delivered) to the Purchaser and the
Purchaser shall purchase and assume from the Sellers on the Closing Date, all of
the Sellers' right, title and interest in and to all of the following assets,
whether owned or leased by the Sellers, as the same may exist as of the Closing
Date (collectively, the "ASSETS"):
(a) the Intellectual Property;
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(b) the Included Software;
(c) all customer lists, telephone numbers and addresses
(including electronic mail addresses) used by the Sellers primarily in
connection with the operation or conduct of the Business, excluding any and all
banking and bank routing information in the possession of the Sellers;
(d) all marketing information, promotional literature and
other selling materials used by the Sellers primarily in connection with the
operation or conduct of the Business;
(e) all goodwill arising primarily in connection with the
ownership, operation or conduct of the Assets and the Business;
(f) the URLs set forth on Schedule 1.1(f) hereto;
(g) all assets and rights previously acquired by the
Sellers under the Agreement, dated July 12, 1999, between Actrade Capital Inc.
and Business Micro Solutions, LLC; and
(h) all other software owned by the Sellers necessary to
utilize the Assets transferred.
For the avoidance of doubt, it is understood and agreed that
the Assets will not include any of the assets of any of the direct or indirect
subsidiaries of Financial other than Capital and the patent and trademark
applications of Actrade Commerce, Ltd. identified on SCHEDULE 2.5 hereto (the
"SUBSIDIARY ASSETS").
1.2 EXCLUDED ASSETS. Notwithstanding anything to the contrary
contained in this Agreement, "Assets" shall not include the following assets of
the Sellers (collectively, and with the Subsidiary Assets, the "EXCLUDED
ASSETS"):
(a) any cash, bank accounts, bank deposits, cash
equivalents and any banking and bank routing information in the possession of
the Sellers;
(b) all Accounts Receivable, including, without
limitation, any outstanding trade acceptance drafts;
(c) all Books and Records;
(d) all Prepaid Expenses;
(e) all Equipment;
(f) all Leases;
(g) all Permits;
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(h) all Contracts;
(i) the Subsidiary Stock;
(j) any affirmative litigation or Claim of the Sellers
with respect to any third party;
(k) any insurance policies, surety bonds or proceeds or
other rights of the Sellers under insurance policies or surety bonds;
(l) all accounting and computer software, other than the
Included Software;
(m) any rights to refunds, rebates, abatements or other
refunds of any Taxes;
(n) all of the rights and claims of the Sellers for
avoidance actions available to the Sellers under the Bankruptcy Code, of
whatever kind or nature, as set forth in sections 544 through 551 and any other
applicable provisions of the Bankruptcy Code, and any related claims and actions
arising under such sections by operation of law or otherwise, including any and
all proceeds of the foregoing; and
(o) the corporate names of the Sellers.
1.3 ASSUMED LIABILITIES. In partial consideration of the sale of
the Assets to the Purchaser, the Purchaser shall assume, and shall pay, perform
and discharge when due, all Liabilities of the Sellers and its Affiliates
resulting from such ownership, use, operation or maintenance of the Assets after
the Closing (whether fixed or contingent, matured or unmatured, arising by law
or by Contract or otherwise), other than the Excluded Liabilities (the "ASSUMED
LIABILITIES").
1.4 EXCLUDED LIABILITIES. Notwithstanding anything to the contrary
contained in this Agreement, the Purchaser shall not assume, or in any way be
liable or responsible for, any of the following Liabilities of the Sellers or
its Affiliates (whether fixed or contingent, matured or unmatured, arising by
law or by Contract or otherwise) (the "EXCLUDED LIABILITIES"):
(a) all Liabilities relating to the Excluded Assets;
(b) all Liabilities for indebtedness for money borrowed
(other than leases, accounts payable and other Contracts being assumed hereunder
to the extent they may constitute indebtedness or any purchase money security
interests or similar indebtedness);
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(c) any Liabilities for Taxes attributable to the
Business or relating to the Assets for any periods (or portion thereof) ending
on or prior to the Closing Date;
(d) any contingent or unknown liability relating to any
Claim that accrues on or prior to the Closing;
(e) any account payable or any debt or liability from the
Sellers to any Affiliate of the Sellers;
(f) any Chapter 11 Expenses; and
(g) any Liabilities for violation of Law by either Seller
or any of their Affiliates.
1.5 PURCHASE PRICE; ALLOCATION OF PURCHASE PRICE.
(a) The aggregate purchase price for the Assets shall be
$200,000 (the "PURCHASE PRICE"), to be paid in cash at the Closing as provided
in Section 1.8(a).
(b) The Purchase Price shall be allocated among the
Assets in a manner to be mutually agreed upon by the Sellers and the Purchaser.
1.6 CLOSING. Subject to the terms and conditions of this Agreement
and the Sale Order, the sale and purchase of the Assets and the assumption of
the Assumed Liabilities contemplated by this Agreement shall take place at a
closing (the "CLOSING") to be held at the offices of Xxxx, Weiss, Rifkind,
Xxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx at 10:00
A.M., New York time, on September 15, 2003, or at such other place or at such
other time or on such other date as the Sellers and the Purchaser may mutually
agree upon in writing (the day on which the Closing takes place being the
"CLOSING DATE").
1.7 CLOSING DELIVERIES BY THE SELLERS. At the Closing, the Sellers
shall deliver or cause to be delivered to the Purchaser:
(a) the Xxxx of Sale and such other instruments as may be
reasonably requested by the Purchaser to transfer the Assets to the Purchaser or
evidence such transfer on the public records;
(b) executed counterparts of the Assumption Agreement;
(c) a receipt for the Purchase Price after the full
Purchase Price has been received by the Sellers;
(d) the Intellectual Property Assignments; and
(e) the certificates and other documents required to be
delivered pursuant to Section 5.1.
1.8 CLOSING DELIVERIES BY THE PURCHASER. At the Closing, the
Purchaser shall deliver or cause to be delivered to the Sellers:
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(a) an amount equal to the excess of the Purchase Price
over the Good Faith Deposit, by wire transfer of immediately available funds to
account (or accounts) designated by the Sellers at least two (2) Business Days
prior to the Closing Date;
(b) executed counterparts of the Assumption Agreement;
and
(c) the certificates and other documents required to be
delivered pursuant to Section 6.1.
2. REPRESENTATIONS AND WARRANTIES OF THE SELLERS. The Sellers
jointly and severally represent and warrant to the Purchaser that, except as set
forth in the schedules relating to this Agreement (the "SCHEDULES") delivered by
the Sellers to the Purchaser on the date hereof:
2.1 DUE INCORPORATION AND AUTHORITY. Except as a result of the
commencement of the Bankruptcy Case, each Seller is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. Each Seller has all requisite corporate power and authority to own,
lease and operate its properties and to carry on its business as now being
conducted, except where the failure to have such power and authority would not
reasonably be expected to have, either individually or in the aggregate, a
Material Adverse Effect. Subject to the entry of the Sale Order, (a) each Seller
has all requisite corporate power and authority to enter into this Agreement,
carry out its obligations hereunder and consummate the transactions contemplated
hereby and (b) the execution and delivery by each Seller of this Agreement, the
performance by each Seller of its obligations hereunder and the consummation by
each Seller of the transactions contemplated hereby have been duly authorized by
all requisite corporate action on the part of each Seller and no other corporate
proceedings on the part of either Seller are necessary to authorize the
execution and delivery of this Agreement or to consummate the other transactions
contemplated hereby. This Agreement has been duly executed and delivered by each
Seller, and, upon entry of the Sale Order (assuming the due authorization,
execution and delivery of this Agreement by the Purchaser), this Agreement
constitutes the legal, valid and binding obligation of each Seller enforceable
against each Seller in accordance with its terms, except to the extent
enforceability may be limited by bankruptcy, insolvency, moratorium or other
similar laws affecting creditors rights generally or by general principles of
equity (regardless of whether enforcement is considered in a proceeding in
equity or at law).
2.2 NO CONFLICTS. Subject to the entry of the Sale Order, the
execution and delivery by each Seller of this Agreement, the consummation of the
transactions contemplated hereby, and the performance by each Seller of this
Agreement in accordance with its terms will not:
(a) violate the certificate of incorporation or by-laws
of either Seller;
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(b) require either Seller to obtain any material
consents, approvals, authorizations or actions of, or make any filings with or
give any notices to, any Governmental Bodies or any other Person, except (i) as
set forth on SCHEDULE 2.2(B) hereto (the "SELLERS CONSENTS AND NOTICES") or (ii)
consents, approvals, or authorizations of, or declarations or filings with, the
Bankruptcy Court; or
(c) if the Sellers Consents and Notices are obtained or
made, violate or result in the breach of any of the terms and conditions of,
cause the termination of or give any other contracting party the right to
terminate, or constitute (or with notice or lapse of time, or both, constitute)
a material default under, any material Contract, or result in the creation of
any Lien upon any of the properties of the Sellers pursuant to the terms of any
material Contract;
PROVIDED, HOWEVER, that each of the cases set forth in clauses (b) through (c)
above is subject to exceptions that would not reasonably be expected to have,
either individually or in the aggregate, a Material Adverse Effect.
2.3 ORGANIZATIONAL DOCUMENTS. The Sellers have previously made
available to the Purchaser copies of the certificate of incorporation and
by-laws, of each Seller as in effect on the date hereof. Neither Seller is in
violation of its certificate of incorporation, bylaws or other similar
organizational document, except, in the case of a Seller, as would not
reasonably be expected to have, either individually or in the aggregate, a
Material Adverse Effect.
2.4 PROPERTY. To the Knowledge of the Sellers, the Sellers
(subject to the entry of, and the provision of, the Sale Order) have good title,
free and clear of all Liens, to all of the Assets except for (i) Liens incurred
in the ordinary course of business, (ii) Permitted Encumbrances, (iii) Liens
that shall be released at or prior to the Closing, (iv) Liens set forth on
SCHEDULE 2.4 hereto or (v) Liens that would not have, either individually or in
the aggregate, a Material Adverse Effect; PROVIDED, HOWEVER, that the Sellers
make no representation or warranty in this Section 2.4 with respect to the
Intellectual Property, which is specifically and exclusively addressed in
Section 2.5, or with respect to the Excluded Assets.
2.5 INTELLECTUAL PROPERTY. SCHEDULE 2.5 sets forth all current
registrations and applications for registration in the name of either Seller or
Actrade Commerce Ltd. for the Intellectual Property. Except as set forth on
SCHEDULE 2.5 hereto, to the Knowledge of the Sellers, one of the Sellers
(subject to the entry of, and the provision of, the Sale Order) or Actrade
Commerce Ltd., as applicable, owns or possesses, free and clear of all Liens,
other than Permitted Encumbrances, Liens that shall be released at or prior to
the Closing, or has licenses to use all the Intellectual Property, except where
the failure to own or possess or have the right to use any of the foregoing
would not reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect. Except as otherwise set forth on SCHEDULE
2.5 hereto, the Sellers have not received any written notice that any of the
Intellectual Property currently infringes upon any intellectual property rights
of others other than as would not reasonably be expected to have, either
individually or in the aggregate, a Material
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Adverse Effect. To the Knowledge of each Seller, no Person is infringing upon
any rights associated with such Intellectual Property, other than as would not
reasonably be expected to have, either individually or in the aggregate, a
Material Adverse Effect. Except as otherwise set forth on SCHEDULE 2.5 hereto,
no litigation, reexamination, interference, opposition or cancellation action is
pending and no Claim is pending against either Seller or, to the Knowledge of
either Seller is threatened, (i) contesting the right of the Sellers or Actrade
Commerce Ltd. to use the Intellectual Property; or (ii) opposing or attempting
to cancel any of the rights associated with the Intellectual Property, in each
case, other than as would not reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect.
2.6 BROKERS. Except for Xxxxxxxx, Xxxxxxxx & Partners, LLC
("AWP"), no Seller has paid or agreed to pay, or received any Claim with respect
to, any brokerage commissions, finders' fees or similar compensation in
connection with the transactions contemplated hereby. The Purchaser shall not be
responsible for the payment on behalf of any Seller of any brokerage
commissions, finders' fees or similar compensation incurred by any such Seller
in connection with the transactions contemplated hereby.
2.7 DISCLAIMER. THE REPRESENTATIONS AND WARRANTIES MADE BY THE
SELLERS IN THIS AGREEMENT ARE THE EXCLUSIVE REPRESENTATIONS AND WARRANTIES MADE
BY THE SELLERS. THE SELLERS HEREBY DISCLAIM ANY OTHER EXPRESS OR IMPLIED
REPRESENTATIONS AND WARRANTIES. THE SELLERS DIRECTLY OR INDIRECTLY, DO NOT MAKE,
AND HEREBY DISCLAIM, ANY REPRESENTATIONS OR WARRANTIES REGARDING PRO-FORMA
FINANCIAL INFORMATION, FINANCIAL PROJECTIONS OR OTHER FORWARD-LOOKING STATEMENTS
OF THE BUSINESS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SELLERS
MAKE NO REPRESENTATIONS OR EXPRESS OR IMPLIED WARRANTIES AS TO THE BUSINESS, THE
ASSETS OR THE ASSUMED LIABILITIES, INCLUDING AS TO THEIR PHYSICAL CONDITION,
USABILITY, MERCHANTABILITY, PROFITABILITY OR FITNESS FOR ANY PURPOSE.
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser
represents and warrants to the Sellers as follows:
3.1 DUE INCORPORATION AND AUTHORITY. The Purchaser is a
corporation duly organized, validly existing and in good standing under the laws
of the State of New York. The Purchaser has all requisite power and authority to
own, lease and operate its properties and to carry on its business as now being
conducted, except where the failure to have such power and authority would not
reasonably be expected to materially impair or delay the ability of the
Purchaser to consummate the transactions contemplated hereby. The Purchaser has
all requisite corporate power and authority to enter into this Agreement, carry
out its obligations hereunder and consummate the transactions contemplated
hereby. The execution and delivery by the Purchaser of this Agreement,
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the performance by the Purchaser of its obligations hereunder and the
consummation by the Purchaser of the transactions contemplated hereby have been
duly authorized by all requisite corporate action on the part of the Purchaser
and no other corporate proceedings on the part of the Purchaser are necessary to
authorize the execution and delivery of this Agreement or to consummate the
other transactions contemplated hereby. This Agreement has been duly executed
and delivered by the Purchaser, and, assuming the due authorization, execution
and delivery hereof by the Sellers, this Agreement will constitute the legal,
valid and binding obligation of the Purchaser, enforceable against the Purchaser
in accordance with its terms, except to the extent enforceability may be limited
by bankruptcy, insolvency, moratorium or other similar laws affecting creditors
rights generally or by general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law).
3.2 NO CONFLICTS. The execution and delivery by the Purchaser of
this Agreement, the consummation of the transactions contemplated hereby, and
the performance by the Purchaser of this Agreement in accordance with its terms
will not:
(a) violate the certificate of incorporation or by-laws
(or comparable instruments) of the Purchaser;
(b) require the Purchaser to obtain any material
consents, approvals, authorizations or actions of, or make any filings with or
give any notices to, any Governmental Bodies or any other Person, except for (i)
consents, approvals or authorizations of, or declarations or filings with, the
Bankruptcy Court; or
(c) violate or result in the breach of any of the terms
and conditions of, cause the termination of or give any other contracting party
the right to terminate, or constitute (or with notice or lapse of time, or both,
constitute) a material default under, any material Contract to which the
Purchaser is a party or by or to which each of the Purchaser or any of its
properties is or may be bound or subject.
3.3 BROKERS. No Person retained by or on behalf of the Purchaser
or any of its respective Affiliates is entitled to any brokerage commissions,
finders' fees or similar compensation in connection with the transactions
contemplated hereby.
3.4 FINANCING. The Purchaser has, and at the Closing will have,
sufficient available funds to consummate the transactions contemplated by this
Agreement, including making all payments required pursuant to Section 1.
3.5 LITIGATION. There are no Claims pending or, to the Knowledge
of the Purchaser, threatened against the Purchaser, before any Governmental Body
that would prevent or materially delay the consummation by the Purchaser of the
transactions contemplated by this Agreement.
3.6 INDEPENDENT INVESTIGATION. The Purchaser hereby acknowledges
and affirms that it has conducted and completed its own investigation, analysis
and evaluation of the Business and the Assets, that it has made all such reviews
and
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inspections of the financial condition, results of operations, properties,
assets and prospects of the Business and the Assets as it has deemed necessary
or appropriate, that it has had the opportunity to request all information it
has deemed relevant to the foregoing from the Sellers and has received responses
it deems adequate and sufficient to all such requests for information, and that
in making its decision to enter into this Agreement and to consummate the
transactions contemplated hereby it has relied solely on (i) its own
investigation, analysis and evaluation of the Business and the Assets and (ii)
the representations, warranties and covenants of the Sellers contained in this
Agreement.
4. COVENANTS AND AGREEMENTS.
4.1 CONDUCT OF BUSINESS. Subject to (x) any obligations of either
Seller as a debtor or debtor-in-possession under the Bankruptcy Code, or (y) any
order of the Bankruptcy Court or other court of competent jurisdiction, the
Sellers agree that between the date of this Agreement and the Closing Date,
except as set forth in this Agreement, or as otherwise agreed to in writing by
the Purchaser (which agrees to respond promptly to any request for such
agreement and not to unreasonably withhold such agreement), the Sellers shall
not:
(a) issue, sell or otherwise transact any new trade
acceptance draft transactions;
(b) sell or convey any of their material assets, except
in the ordinary course of business consistent with past practice;
(c) acquire or agree to acquire by merging or
consolidating with, or by purchasing any equity interest in or a portion of the
assets of, or by any other manner, any business or any Person or division
thereof, or otherwise acquire or agree to acquire any material amount of assets;
(d) enter into any joint ventures, strategic partnerships
or alliances;
(e) enter into any Contract the effect of which would be
to grant to a third party any actual license to use any of the Intellectual
Property;
(f) adopt a plan of complete or partial liquidation,
dissolution, merger, consolidation, restructuring, recapitalization or
reorganization, other than a plan of reorganization in the Bankruptcy Case; or
(g) agree in writing or otherwise to take any of the
actions described in (a) through (f) above.
4.2 CONFIDENTIALITY. The Purchaser reaffirms the confidentiality
letter agreement, dated August 7, 2003 (the "CONFIDENTIALITY AGREEMENT"),
between Financial and the Purchaser, and agrees to fulfill its obligations
thereunder. If this Agreement is, for any reason, terminated prior to the
Closing, the Confidentiality Agreement shall
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nonetheless continue in full force and effect. The Purchaser agrees to maintain,
before and after the Closing, the confidentiality of all information concerning
the Sellers (including the amounts paid to the Sellers hereunder) except as may
be required under a requirement of law, in which case the Purchaser shall
promptly notify the Sellers of any such requirement and the Sellers shall be
permitted to seek confidential treatment for such information. Notwithstanding
anything herein to the contrary, any party to this Agreement (and each of its
Representatives) may disclose to any and all Persons, without limitation of any
kind, the tax treatment and tax structure of the transactions contemplated by
this Agreement, and all materials of any kind (including opinions or other tax
analyses) related to such tax treatment and tax structure; PROVIDED, that this
sentence shall not permit any Person to disclose the name of, or other
information that would identify, any party to such transactions or to disclose
confidential commercial information regarding such transactions.
4.3 EXPENSES. Except as otherwise specifically provided herein,
the Purchaser and the Sellers shall bear their respective expenses incurred in
connection with the preparation, execution and performance of this Agreement and
the transactions contemplated hereby, including all fees and expenses of their
Representatives.
4.4 PUBLIC ANNOUNCEMENTS. No party to this Agreement shall make,
or cause to be made, any press release or public announcement in respect of this
Agreement or the transactions contemplated hereby or otherwise communicate with
any news media without prior approval of the other party, which approval shall
not be unreasonably withheld or delayed, unless such disclosure is required by
applicable law or the rules of any stock exchange. The parties shall cooperate,
using commercially reasonable efforts, as to the timing and contents of any such
announcement, including any such announcement required by applicable law or the
rules of any stock exchange.
4.5 ACCESS TO INFORMATION. From the date hereof until the Closing,
upon reasonable notice, the Sellers shall, and shall cause each of its
respective officers, directors, employees, auditors and agents to afford the
officers, employees and Representatives of the Purchaser reasonable access,
during normal business hours, to the offices and properties of the Sellers;
PROVIDED, HOWEVER, that such investigation shall not unreasonably interfere with
the operations of the Sellers or any of their Affiliates. The Confidentiality
Agreement shall remain in full force and effect notwithstanding anything therein
to the contrary and all information received by the Purchaser under this Section
4.5 shall be subject thereto.
4.6 REGULATORY AND OTHER AUTHORIZATIONS; CONSENTS. Each of the
parties hereto shall use its commercially reasonable efforts to (i) take, or
cause to be taken, all appropriate action, and do, or cause to be done, all
things necessary, proper or advisable under any requirement of law or otherwise
to consummate and make effective the transactions contemplated by this
Agreement, (ii) obtain any consents, licenses, Permits, waivers, approvals,
authorizations or orders required to be obtained or made in connection with the
authorization, execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby, including the Sellers Consents
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and Notices, and (iii) make all filings and give any notice, and thereafter make
any other submissions either required or reasonably deemed appropriate by each
of the parties, with respect to this Agreement and the transactions contemplated
hereby required under any requirement of law, including applicable securities
and antitrust requirements of law, and the rules and regulations of any stock
exchange on which the securities of any of the parties are listed or traded.
Commercially reasonable efforts shall not obligate the Sellers or the Purchaser
to make or offer to make any payments to obtain any consents, licenses, Permits,
waivers, approvals, authorizations or orders.
4.7 FURTHER ACTION; ADDITIONAL ASSIGNMENTS OF INTELLECTUAL
PROPERTY. Each of the parties hereto shall execute such documents and take such
further actions as may be reasonably required or desirable to carry out the
provisions hereof and give effect to the transactions contemplated hereby. From
time to time after the Closing, the Sellers shall at the Purchaser's expense
prepare all documents and take all actions reasonably necessary to further the
sale and assignment of the Intellectual Property to the Purchaser hereunder.
Such Intellectual Property assignments shall be in recordable form based on the
local law requirements. The Purchaser assumes responsibility for and will bear
the expenses of recording such Intellectual Property assignments in the United
States Patent and Trademark Office. Following the Closing, the Sellers shall
have no obligation or responsibility for maintaining or prosecuting any
Intellectual Property transferred to the Purchaser hereunder.
4.8 SOFTWARE. The Sellers shall retain an exact copy of all
software transferred hereunder to the extent the Sellers require such software
in order to (i) wind down and otherwise conclude the business affairs of the
Sellers for a period not to exceed ninety (90) days or (ii) comply with their
obligations to Governmental Bodies or in connection with any litigation;
PROVIDED, HOWEVER, that the Sellers shall undertake to deliver to the Purchaser,
any copies of such software upon the later of (x) the completion of the wind
down of its business affairs and (y) the release of the Sellers from any and all
obligations to Governmental Bodies or in connection with any litigation, which
obligations make retaining a copy of such software necessary or advisable (in
the understanding that the Purchaser shall consider in good faith any request by
the Sellers to extend the ninety (90) day period provided for under Section
4.8(i) in connection with the confirmation of the Sellers' plan of liquidation
in the Bankruptcy Case and the Purchaser shall not unreasonably withhold, delay
or condition the granting of such extension).
4.9 DIRECTORS, OFFICERS AND AFFILIATES. The Purchaser agrees that
none of the officers, directors and Affiliates of the Sellers as of the Closing
Date shall have any Liability or responsibility to the Purchaser for (and the
Purchaser unconditionally release such officers, directors and affiliates from)
any Liability:
(a) arising out of, or relating to, the organization,
management, operation or conduct of the businesses of the Sellers relating to
any matter, occurrence, action or activity prior to the Closing Date;
(b) relating to this Agreement and the transactions
contemplated hereby;
12
(c) arising out of or due to any inaccuracy or breach of
any representation or warranty or the breach of any covenant, undertaking or
other agreement of the Sellers contained in this Agreement, the Schedules hereto
or in any certificate contemplated hereby and delivered by the Sellers in
connection herewith; or
(d) relating to any information (whether written or
oral), documents or materials furnished by the Sellers.
4.10 TAX MATTERS.
(a) SALES, USE AND OTHER TRANSFER TAXES. The Purchaser
shall be responsible for all of the excise, sales, value added, use,
registration, stamp, franchise, property transfer, transfer and similar Taxes,
levies, charges and fees incurred in connection with the transactions
contemplated by this Agreement and which are not otherwise exempt pursuant to
section 1146(c) of the Bankruptcy Code. The parties hereto agree to cooperate in
the filing of all necessary documentation and all Tax Returns with respect to
all such Taxes, including any available pre-sale filing procedure.
(b) ALLOCATION OF PURCHASE PRICE. None of the parties
hereto shall, or shall permit any of its Affiliates to, file any Tax Return, or
take a position with a Tax authority, that is inconsistent with the allocation
of the Purchase Price agreed upon pursuant to Section 1.5(b), or that treats the
transactions contemplated by this Agreement in a manner inconsistent with the
terms of this Agreement. Each of the Sellers and the Purchaser agrees to
cooperate with the other party in preparing a IRS Form 8594 for filing by each
of them and to furnish the other party with a copy of such IRS Form 8594 within
a reasonable period before its filing due date. None of the parties hereto shall
agree to any adjustment to the allocation of the Purchase Price without the
prior written consent of the other party, which consent shall not be
unreasonably withheld.
(c) COOPERATION. The parties hereto shall cooperate with
each other and with each other's respective Representatives, including
accounting firms and legal counsel, in connection with the preparation or audit
of any Tax Return(s) and any Tax claim or litigation in respect of the Assets
and Assumed Liabilities that include whole or partial taxable periods,
activities, operations or events on or prior to the Closing Date, which
cooperation shall include, but not be limited to, making available employees, if
any, for the purpose of providing testimony and advice, or original documents,
or either of them.
5. CONDITIONS PRECEDENT TO THE OBLIGATION OF THE PURCHASER. The
obligation of the Purchaser to consummate the transactions contemplated by this
Agreement is subject to the fulfillment on or prior to the Closing Date of each
of the following conditions, any one or more of which (to the extent permitted
by law) may be waived by the Purchaser:
5.1 REPRESENTATIONS AND WARRANTIES; COVENANTS. The representations
and warranties of the Sellers contained in this Agreement that are qualified as
to materiality or Material Adverse Effect shall be true and correct, and the
representations
13
and warranties that are not so qualified shall be true and correct in all
material respects, each as of the Closing, with the same force and effect as if
made as of the Closing, other than such representations and warranties that are
made as of another date. The covenants and agreements contained in this
Agreement to be complied with by the Sellers at or before the Closing shall have
been complied with in all material respects. The Purchaser shall have received a
certificate of the Sellers to such effect signed by a duly authorized officer
thereof.
5.2 NO ORDER. No Governmental Body shall have enacted, issued,
promulgated, enforced or entered any statute, rule, regulation, injunction or
other order (whether temporary, preliminary or permanent) which is in effect and
has the effect of making the transactions contemplated by this Agreement illegal
or otherwise restraining or prohibiting consummation of such transactions and
which are not satisfied or resolved or preempted by the Sale Order.
5.3 BANKRUPTCY FILING. The Bankruptcy Court shall have entered the
Sale Order, and the Sale Order shall be final and non-appealable and shall not
have been vacated, reversed or stayed.
5.4 INTELLECTUAL PROPERTY ASSIGNMENTS. Each of the Sellers and
Actrade Commerce, Ltd., an Affiliate of Financial and an owner of certain patent
applications and trademark applications set forth on SCHEDULE 2.5 hereto, shall
have delivered to the Purchaser on the Closing Date an assignment effecting the
transfer to the Purchaser of the Intellectual Property listed on SCHEDULE 2.5
hereto that it owns (collectively, the "INTELLECTUAL PROPERTY ASSIGNMENTS").
6. CONDITIONS PRECEDENT TO THE OBLIGATION OF THE SELLERS. The
obligation of the Sellers to consummate the transactions contemplated by this
Agreement is subject to the fulfillment on or prior to the Closing Date of each
of the following conditions, any one or more of which (to the extent permitted
by law) may be waived by the Sellers:
6.1 REPRESENTATIONS AND WARRANTIES; COVENANTS. The representations
and warranties of the Purchaser contained in this Agreement that are qualified
as to materiality or Material Adverse Effect shall be true and correct, and the
representations and warranties that are not so qualified shall be true and
correct in all material respects, each as of the Closing, with the same force
and effect as if made as of the Closing, other than such representations and
warranties that are made as of another date. The covenants and agreements
contained in this Agreement to be complied with by the Purchaser at or before
the Closing shall have been complied with in all material respects. The Sellers
shall have received a certificate of the Purchaser to such effect signed by a
duly authorized officer thereof.
6.2 NO ORDER. No Governmental Body shall have enacted, issued,
promulgated, enforced or entered any statute, rule, regulation, injunction or
other order (whether temporary, preliminary or permanent) which is in effect and
has the effect of making the transactions contemplated by this Agreement illegal
or otherwise restraining
14
or prohibiting consummation of such transactions and which are not satisfied or
resolved or preempted by the Sale Order.
6.3 SALE ORDER. The Bankruptcy Court shall have entered the Sale
Order, and the Sale Order shall not have been vacated, reversed or stayed.
7. TERMINATION OF AGREEMENT.
7.1 TERMINATION. This Agreement may be terminated prior to the
Closing as follows:
(a) by the mutual written consent of the Sellers and the
Purchaser;
(b) by either the Sellers or the Purchaser if the Closing
shall not have occurred prior to September 30, 2003; PROVIDED, HOWEVER, that the
right to terminate this Agreement under this Section 7.1(b) shall not be
available to any party whose failure to fulfill any obligation under this
Agreement shall have been the cause of, or shall have resulted in, the failure
of the Closing to occur prior to such date;
(c) at the election of the Sellers, if the Purchaser has
breached in any material respect any representation, warranty, covenant or
agreement contained in this Agreement, which breach has not been cured or waived
on or prior to sixty (60) days following delivery of written notice of such
breach by the Sellers to the Purchaser;
(d) at the election of the Purchaser, if the Sellers has
breached in any material respect any representation, warranty, covenant or
agreement contained in this Agreement, which breach has not been cured or waived
on or prior to sixty (60) days following delivery of written notice of such
breach by the Purchaser to the Sellers; or
(e) by either the Sellers or the Purchaser if the
Bankruptcy Court approves a sale, transfer or other disposition of the Sellers
or all or substantially all of the assets of the Sellers relating to the
Business or all or a substantial part of the Assets to a Person (or group of
Persons) other than the Purchaser or an Affiliate of Purchaser and such sale,
transfer or other disposition is subsequently consummated.
7.2 SURVIVAL AFTER TERMINATION. If this Agreement is terminated
pursuant to Section 7.1 and the transactions contemplated hereby are not
consummated, this Agreement shall become null and void and have no further force
or effect, except that any such termination shall be without prejudice to the
rights of any party on account of the nonsatisfaction of the conditions set
forth in Articles 5 and 6 resulting from the intentional or willful breach or
violation of the representations, warranties, covenants or agreements of another
party under this Agreement. Notwithstanding anything in this Agreement to the
contrary, the provisions of Sections 4.2, 4.3, 4.4, this Section 7.2 and Section
8 shall survive any termination of this Agreement.
7.3 WAIVER. Either party hereto may (a) extend the time for the
performance of any of the obligations or other acts of the other party hereto,
(b) waive
15
any inaccuracies in the representations and warranties of the other party
contained herein or in any document delivered pursuant hereto, (c) waive
compliance with any of the agreements of the other party contained herein, or
(d) waive satisfaction of any condition to its obligations hereunder. Any such
extension or waiver shall be valid only if set forth in an instrument in writing
signed by the party to be bound thereby.
8. MISCELLANEOUS.
8.1 CERTAIN DEFINITIONS.
(a) As used in this Agreement, the following terms have
the following meanings:
"ACCOUNTS RECEIVABLE" means all accounts receivable, notes receivable
and trade receivables arising primarily in connection with the operation or
conduct of the Business, together with any unpaid interest accrued thereon from
the respective obligors and any security or collateral therefor.
"AFFILIATE" means, with respect to any specified Person, any other
Person that directly, or indirectly through one or more intermediaries,
controls, is controlled by or is under common control with such specified
Person.
"ASSUMPTION AGREEMENT" means the Assumption Agreement in the form of
EXHIBIT A hereto to be executed by the Purchaser and the Sellers on the Closing
Date.
"XXXX OF SALE" means the Xxxx of Sale in the form of EXHIBIT B hereto
to be executed by the Sellers on the Closing Date.
"BOOKS AND RECORDS" means all records and other tangible forms of
expression in the Sellers' possession or custody or subject to the Sellers'
control, drafts or finished versions, originals, copies or annotated copies,
however created, produced or stored (manually, mechanically, electronically or
otherwise) including, but not limited to, books and records (including Tax books
and records), data processing records, employment and personnel records, credit
records, records relating to suppliers, papers, files, notes, account
statements, confirmations, correspondence, memoranda, ledger sheets, reports,
telegrams, telexes, telephone logs, notes or records of conversations or
meetings, contracts, agreements, calendars, datebooks, bank statements,
worksheets, summaries, invoices, bills, records of xxxxxxxx, checks, wire
transfers, drafts for money, records of payments, magnetic tape, tape
recordings, disks, diskettes, disk packs, PDAs and other electronic media,
microfilm, microfiche, and storage devices.
"BUSINESS DAY" means any day that is not a Saturday, Sunday or other
day on which banks located in New York, New York are authorized or obligated to
close.
"CHAPTER 11 EXPENSES" means (a) any and all costs incurred and expenses
paid or payable by the Sellers (or any of its Affiliates) in connection with the
professional fees related to the administration of the Bankruptcy Case, (b) any
and all
16
costs incurred and expenses paid or payable by the Sellers (or any of its
Affiliates) in connection with the sale of the Business; including (i)
obligations to pay any professionals' fees and expenses in connection with the
Bankruptcy Case, the sale of the Business, this Agreement, and the transactions
contemplated hereby incurred by Sellers, and any other compensation for making a
substantial contribution in the Bankruptcy Case (including, without limitation,
fees of attorneys, accountants, investment bankers, financial advisors, auditors
and consultants) and (ii) fees and expenses payable to the United States Trustee
under section 1930 of title 28, United States Code.
"CLAIM" means a suit, claim, action, proceeding, inquiry,
investigation, litigation, demand, charge, complaint, grievance, arbitration,
indictment, information, or grand jury subpoena.
"CODE" means the Internal Revenue Code of 1986, as amended.
"CONTRACT" means any written or oral agreement, arrangement,
understanding, lease or instrument or other contractual or similar arrangement.
"EQUIPMENT" means all equipment, furniture, fixtures, machinery, tools,
plant, inventory, supplies, office equipment, computers and peripheral equipment
and supplies of the Sellers.
"GOVERNMENTAL BODY" means a domestic federal, state or local
governmental, regulatory or administrative authority, department, agency,
commission, court or tribunal.
"INCLUDED SOFTWARE" means the computer software listed on SCHEDULE
8.1(A) hereto.
"INTELLECTUAL PROPERTY" means United States Patent and Trademark Office
registrations or applications for patents, copyrights, trade secrets, know-how,
trademarks and service marks, trade names and Internet domain names owned by the
Sellers; provided, that for purposes of this Agreement, Intellectual Property
shall also include the patent and trademark applications identified on SCHEDULE
2.5 hereto as being owned by Actrade Commerce, Ltd.; provided further, that,
Intellectual Property shall not include the trademark application for E-TAD, L/C
(Serial No. 78092930), which has been abandoned by Capital, or the patent
application for E-TAD Clearing Center (Serial No. 09/741,386), which has not
been maintained by Actrade Commerce Ltd.
"IRS" means the United States' Internal Revenue Service.
"KNOWLEDGE" means the actual knowledge of the Chief Executive Officer
of Financial.
"LEASES" means all leases with respect to real property used in
connection with the operations or conduct of the Business, including the lease
on (i) 200 Cottontail
17
Lane, Vantage Court South, Somerset, New Jersey, 08873 and (ii) Xxxxx Xxxx
Xxxxx, Xxxxx 000, Xxx Xxxx, Xxx Xxxx 00000.
"LIABILITIES" means any direct or indirect, primary or secondary,
liability, indebtedness, obligation, penalty, cost or expense (including costs
of investigation, collection and defense), claim, deficiency, guaranty or
endorsement of or by any Person (other than endorsements of notes, bills,
checks, and drafts presented for collection or deposit in the ordinary course of
business) of any type, whether accrued, absolute or contingent, liquidated or
unliquidated, xxxxxx or inchoate matured or unmatured, or otherwise.
"LIEN" means any security interest, mortgage, pledge, lien,
encumbrance, or charge.
"MATERIAL ADVERSE EFFECT" means any materially adverse change in, or
effect on, the Assets taken as a whole other than (i) changes or effects
resulting from the transactions contemplated by this Agreement or the
announcement thereof, (ii) changes resulting from acts of terrorism or acts of
war or escalation of hostilities, whether occurring within or outside the United
States, or any effect of any such acts or hostilities on general economic or
other conditions, or (iii) changes or effects resulting from or relating to the
Bankruptcy Case.
"PERMITS" means all licenses, franchises, permits and authorizations of
any Governmental Body as are necessary for the lawful conduct of the Business.
"PERMITTED ENCUMBRANCE" means (a) Liens for Taxes and assessments not
yet payable, (b) Liens for Taxes, assessments and charges and other claims, the
validity of which are being contested in good faith, (c) inchoate mechanics'
Liens for work in progress, (d) materialmen's, mechanics', carriers', workmen's
and repairmen's Liens arising in the ordinary course and not past due and
payable or the payment of which is being contested in good faith by appropriate
proceedings, and (e) Liens related to purchase money security interests entered
into in the ordinary course of business.
"PERSON" means any individual, corporation, partnership, limited
liability company, limited liability partnership, firm, joint venture,
association, joint-stock company, trust, unincorporated organization,
Governmental Body or other entity.
"PREPAID EXPENSES" means all credits, prepaid expenses, deferred
charges, advance payments, security deposits, and prepaid items (including in
respect of Taxes) of the Sellers, in each case which are paid or prepaid by the
Sellers on or prior to the Closing Date.
"REPRESENTATIVE" means, with respect to a particular Person, any
director, officer, manager, partner, member, employee, agent, consultant,
advisor or other representative of such Person, including legal counsel,
accountants, and financial advisors.
18
"SALE ORDER" shall mean an order or orders of the Bankruptcy Court, in
form and substance reasonably satisfactory to the Purchaser and otherwise
consistent with this Agreement, approving the sale to the Purchaser of the
Assets and the assumption by the Purchaser of the Assumed Liabilities under this
Agreement pursuant to sections 105, 363 and 365 of the Bankruptcy Code, and
which: (a) approves the Acquisition on the terms set forth herein; (b) finds
that, as of the Closing Date, the transactions contemplated by this Agreement
effect a legal, valid, enforceable and effective sale and transfer of the Assets
to the Purchaser and shall vest the Purchaser with title to the Assets free and
clear of all Liens, other than Permitted Encumbrances, to the extent
contemplated by this Agreement; (c) finds that, as of the Closing Date, the
contracts to be assumed by the Sellers and assigned to the Purchaser pursuant to
this Agreement will have been duly assigned to the Purchaser in accordance with
section 365 of the Bankruptcy Code; (d) finds that the Purchaser is a good xxxxx
xxxx fide purchaser of the Assets and is entitled to all the protections of
Section 363 of the Bankruptcy Code; (e) finds that the Sellers gave due and
proper notice of the Acquisition to each party entitled thereto; and (f) orders
that, notwithstanding sections 6004(g) and 6006(d) of the Bankruptcy Code, the
Sale Order is not stayed and is effective immediately upon entering.
"SUBSIDIARY STOCK" means the capital stock of each Affiliate of
Financial that is owned directly or indirectly by Financial, including, without
limitation, Actrade Funding Corp., Actrade International Corp., Actrade South
America, Ltd., Actrade Commerce Ltd., Actrade Resources Inc., Actrade Capital
Canada, Inc. and E-Trade Clearing Center.
"TAX" or "TAXES" means all taxes, charges, fees, imposts, levies or
other assessments, including all net income, franchise, profits, gross receipts,
capital, sales, use, ad valorem, value added, transfer, transfer gains,
inventory, capital stock, license, withholding, payroll, employment, social
security, unemployment, excise, severance, stamp, occupation, real or personal
property, and estimated taxes, customs duties, fees, assessments and charges of
any kind whatsoever, together with any interest and any penalties, fines,
additions to tax or additional amounts thereon, imposed by any taxing authority
(federal, state, local or foreign) and shall include any transferee liability in
respect of Taxes.
"TAX RETURNS" means all returns, declarations, reports, forms,
estimates, information returns and statements required to be filed in respect of
any Taxes or to be supplied to a taxing authority in connection with any Taxes.
(b) The following capitalized terms are defined in the
following Sections of this Agreement:
TERM SECTION
---- -------
Acquisition..................................................... Recitals
Agreement....................................................... Preamble
Assets.......................................................... 1.1
Assumed Liabilities............................................. 1.3
19
TERM SECTION
---- -------
AWP 2.6
Bankruptcy Case................................................. Recitals
Bankruptcy Code................................................. Recitals
Bankruptcy Court................................................ Recitals
Business........................................................ Recitals
Capital......................................................... Preamble
Closing......................................................... 1.6
Closing Date.................................................... 1.6
Confidentiality Agreement....................................... 4.2
Excluded Assets................................................. 1.2
Excluded Liabilities............................................ 1.4
Financial....................................................... Preamble
Intellectual Property Assignment................................ 5.4
Purchase Price.................................................. 1.5(a)
Purchaser....................................................... Preamble
Schedules....................................................... 2
Sellers......................................................... Preamble
Sellers Consents and Notices.................................... 2.2(b)
Subsidiary Assets............................................... 1.1
8.2 SURVIVAL. None of the representations and warranties shall
survive the execution and delivery of this Agreement and the Closing hereunder.
None of the covenants set forth herein shall survive the Closing other than
those covenants that by their terms expressly contemplate performance following
the Closing.
8.3 CONSENT TO JURISDICTION; SERVICE OF PROCESS; WAIVER OF JURY
TRIAL.
(a) Any Claim arising out of or relating to this
Agreement or the transactions contemplated hereby may be instituted in any
Federal court in the State of New York, and each party agrees not to assert, by
way of motion, as a defense or otherwise, in any such Claim, that it is not
subject personally to the jurisdiction of such court, that the Claim is brought
in an inconvenient forum, that the venue of the Claim is improper or that this
Agreement or the subject matter hereof may not be enforced in or by such court.
Each party further irrevocably submits to the jurisdiction of such court in any
such Claim. Notwithstanding the foregoing, the Purchaser and the Sellers
irrevocably and unconditionally consent to submit to the jurisdiction of the
Bankruptcy Court for any litigation arising out of or relating to this Agreement
and the transactions contemplated hereby (and agree not to commence any
litigation relating hereto except in the Bankruptcy Court).
(b) Any and all service of process and any other notice
in any such Claim shall be effective against any party if given personally or by
registered or certified mail, return receipt requested, or by any other means of
mail that requires a signed receipt, postage prepaid, mailed to such party as
herein provided. Nothing herein contained shall be deemed to affect the right of
any party to serve process in any manner
20
permitted by law or to commence legal proceedings or otherwise proceed against
any other party in any other jurisdiction.
(c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED
AND DIFFICULT ISSUES, AND THEREFORE EACH PARTY HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY.
(d) EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE WAIVER IN SECTION 8.3(C), (II) SUCH PARTY UNDERSTANDS AND HAS
CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, (III) SUCH PARTY MAKES SUCH WAIVER
VOLUNTARILY AND (IV) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS, AGREEMENTS AND CERTIFICATIONS IN
SECTION 8.3(C) AND THIS SECTION 8.3(D).
8.4 NOTICES. Any notice or other communication required or
permitted hereunder shall be in writing and shall be deemed to have been duly
given (a) on the day of delivery if delivered in person, or if delivered by
facsimile upon confirmation of receipt, (b) on the first Business Day following
the date of dispatch if delivered by a nationally recognized express courier
service, or (c) on the tenth Business Day following the date of mailing if
delivered by registered or certified mail, return receipt requested, postage
prepaid. All notices hereunder shall be delivered as set forth below, or
pursuant to such other instructions as may be designated by notice given in
accordance with this Section 8.4 by the party to receive such notice:
(a) if to the Purchaser, to:
The CIT Group/Commercial Services, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Heed, VP
Facsimile: (000) 000-0000
with a copy to:
Otterbourg, Steindler, Houston & Xxxxx, P.C.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
21
(b) if to the Sellers, to:
Actrade Financial Technologies Ltd.
000 Xxxxxxxxxx Xxxx, Xxxxxxx Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Xxxxxxx X. Xxxxxxxxxx, Esq.
Facsimile: (000) 000-0000
and
Xxxxx Xxxxxx Xxxxxxxx & Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxx, Esq..
Facsimile: (000) 000-0000
8.5 ENTIRE AGREEMENT. This Agreement, together with the
Confidentiality Agreement and any other collateral agreements executed in
connection with the consummation of the transactions contemplated hereby,
contain the entire agreement among the parties with respect to the subject
matter hereof and supersede all prior agreements, written or oral, with respect
thereto. Any exception or disclosure made by Sellers in the Schedules to this
Agreement with regard to a representation of the Sellers shall be deemed made
with respect to any other representation by such party to which such exception
or disclosure is reasonably apparent.
8.6 WAIVERS AND AMENDMENTS. This Agreement may be amended,
superseded, canceled, renewed or extended, and the terms hereof may be waived,
only by a written instrument signed by the Purchaser and the Sellers or, in the
case of a waiver, by the party waiving compliance. No delay on the part of any
party in exercising any right, power or privilege hereunder shall operate as a
waiver thereof, nor shall any waiver on the part of any party of any such right,
power or privilege, nor any single or partial exercise of any such right, power
or privilege, preclude any further exercise thereof or the exercise of any other
such right, power or privilege.
8.7 GOVERNING LAW. This Agreement and all Claims with respect
thereto shall be governed by and construed in accordance with the laws of the
State of New York without regard to any conflict of laws rules thereof that
might indicate the application of the laws of any other jurisdiction.
22
8.8 BINDING EFFECT; ASSIGNMENT. This Agreement shall be binding
upon and inure to the benefit of the parties and their respective successors and
assigns. This Agreement is not assignable by any party without the prior written
consent of the other parties.
8.9 USAGE. All pronouns and any variations thereof refer to the
masculine, feminine or neuter, singular or plural, as the context may require.
All terms defined in this Agreement in their singular or plural forms have
correlative meanings when used herein in their plural or singular forms,
respectively. Unless otherwise expressly provided, the words "include,"
"includes" and "including" do not limit the preceding words or terms and shall
be deemed to be followed by the words "without limitation."
8.10 ARTICLES AND SECTIONS. All references herein to Articles and
Sections shall be deemed references to such parts of this Agreement, unless the
context shall otherwise require. The Article and Section headings in this
Agreement are for reference only and shall not affect the interpretation of this
Agreement.
8.11 INTERPRETATION. The parties acknowledge and agree that (a)
each party and its counsel reviewed and negotiated the terms and provisions of
this Agreement and have contributed to its revision, (b) the rule of
construction to the effect that any ambiguities are resolved against the
drafting party shall not be employed in the interpretation of this Agreement,
and (c) the terms and provisions of this Agreement shall be construed fairly as
to all parties, regardless of which party was generally responsible for the
preparation of this Agreement.
8.12 SEVERABILITY OF PROVISIONS. If any provision or any portion of
any provision of this Agreement shall be held invalid or unenforceable, the
remaining portion of such provision and the remaining provisions of this
Agreement shall not be affected thereby. If the application of any provision or
any portion of any provision of this Agreement to any Person or circumstance
shall be held invalid or unenforceable, the application of such provision or
portion of such provision to Persons or circumstances other than those as to
which it is held invalid or unenforceable shall not be affected thereby.
8.13 COUNTERPARTS. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts together shall constitute one
and the same instrument. Each counterpart may consist of a number of copies
hereof each signed by less than all, but together signed by all, of the parties
hereto.
8.14 NO THIRD PARTY BENEFICIARIES. Except as otherwise set forth in
Section 4.9, no provision of this Agreement is intended to, or shall, confer any
third party beneficiary or other rights or remedies upon any Person other than
the parties hereto. Without limiting the generality of the foregoing and except
as otherwise set forth in Section 4.9, no provision of this Agreement shall
create any third party beneficiary rights
23
in any employee or former employee of the Sellers (including any beneficiary or
dependent thereof) in respect of continued employment by the Sellers or
otherwise.
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24
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
ACTRADE FINANCIAL TECHNOLOGIES LTD.
By:
----------------------------------
Name:
Title:
ACTRADE CAPITAL INC.
By:
----------------------------------
Name:
Title:
The CIT Group/Commercial Services, Inc.
By:
----------------------------------
Name:
Title:
Schedule 1.1(f)
Registered URLs
---------------
1. xxx.xxxx.xxx
------------
2. xxx.xxxxxxx.xx
--------------
3. xxx.xxxxxxx.xxx
---------------
4. xxx.xxxxxxx.xxx
---------------
5. xxx.xxxxxxxxxxx.xxx
-------------------
6. xxx.xxxxxx.xxx
--------------
7. xxx.xxxxxx.xxx
--------------
8. xxx.xxxxxxxxxxxxxxxxxx.xxx
--------------------------
9. xxx.xxxxxxxxxxxxxxxxxx.xxx
--------------------------
Schedule 2.2(b)
Sellers Consents and Notices
----------------------------
None
Schedule 2.4
Liens
-----
None
Schedule 2.5
Intellectual Property
---------------------
Patent
------
------------------------------------- -------------------------- -----------------------------------
TITLE PATENT NUMBER OWNER
------------------------------------- -------------------------- -----------------------------------
Financing Method Incorporating New 5,694,552 Actrade Capital Inc.
Use of Trade Acceptance Drafts
------------------------------------- -------------------------- -----------------------------------
Patent Applications
-------------------
------------------------------------- -------------------------- -----------------------------------
TITLE PATENT NUMBER OWNER
------------------------------------- -------------------------- -----------------------------------
Internet Financing Methods Using 09/357,279 Actrade International Ltd. (n/k/a
Trade Acceptance Drafts Actrade Financial Technologies
Ltd.)
------------------------------------- -------------------------- -----------------------------------
Financing Methods Via the Internet 09/565,350 Actrade International Ltd. (n/k/a
Using Trade Acceptance Drafts Actrade Financial Technologies
Ltd.)
------------------------------------- -------------------------- -----------------------------------
Apparatus and method for 09/688,661 Actrade Commerce Ltd.
electronically creating and storing
a post-dated financial instrument
------------------------------------- -------------------------- -----------------------------------
E-DRAFT Corporate L/C 10/047,157 Actrade Financial Technologies
Ltd.
------------------------------------- -------------------------- -----------------------------------
E-TAD L/C 10/047,868 Actrade Financial Technologies
Ltd.
------------------------------------- -------------------------- -----------------------------------
E-DRAFT Collection 10/103,532 Actrade Financial Technologies
Ltd.
------------------------------------- -------------------------- -----------------------------------
E-DRAFT EXPRESS 10/157,539 Actrade Financial Technologies
Ltd.
------------------------------------- -------------------------- -----------------------------------
Registered Trademarks
---------------------
------------------------------------- -------------------------- -----------------------------------
XXXX REGISTRATION NO. OWNER
------------------------------------- -------------------------- -----------------------------------
TAD 1973735 AmWorld Commerce, Inc. (n/k/a
Actrade Capital Inc.)
------------------------------------- -------------------------- -----------------------------------
ACTRADE and Miscellaneous Design 2214223 Actrade Capital, Inc.
------------------------------------- -------------------------- -----------------------------------
ACTRADE and Miscellaneous Design 2328956 Actrade International, Ltd.
(n/k/a Actrade Financial
Technologies Ltd.)
------------------------------------- -------------------------- -----------------------------------
E-TAD 2348582 Actrade International, Ltd.
(n/k/a Actrade Financial
Technologies Ltd.)
------------------------------------- -------------------------- -----------------------------------
Trademark Applications
----------------------
------------------------------------- -------------------------- -----------------------------------
E-TAD DIRECT 76303565 Actrade Financial Technologies
Ltd.
------------------------------------- -------------------------- -----------------------------------
E-TAD ONLINE 76303564 Actrade Financial Technologies
Ltd.
------------------------------------- -------------------------- -----------------------------------
E-TAD EXCHANGE 76303563 Actrade Financial Technologies
Ltd.
------------------------------------- -------------------------- -----------------------------------
E-TAD L/C 76303562 Actrade Financial Technologies
Ltd.
------------------------------------- -------------------------- -----------------------------------
E-Draft, L/C 78092921 Actrade Commerce Ltd.
------------------------------------- -------------------------- -----------------------------------
E-Draft 78099448 Actrade Commerce Ltd.
------------------------------------- -------------------------- -----------------------------------
Exception
---------
Patent Application Serial No. 09/139559 for "International Financing
Method Employing Negotiable International Check" was filed in the name
of Xxxx Xxxxxxx and, to the Knowledge of the Sellers, was never
transferred to the Sellers. Accordingly, the Sellers do not own this
patent application or the proprietary process described therein and it
is not contemplated to be transferred pursuant to the Agreement.
Schedule 8.1(a)
Included Software
-----------------
1. E-TAD Lotus Notes Databases
2. E-TAD PDF files
EXHIBIT A
---------
[FORM OF]
ASSUMPTION AGREEMENT
ASSUMPTION AGREEMENT, dated as of September __, 2003 (this
"AGREEMENT"), by and among Actrade Financial Technologies Ltd., a Delaware
corporation ("FINANCIAL"), Actrade Capital Inc., a Delaware corporation
("Capital" and, together with Financial, the "SELLERS"), and The CIT
Group/Commercial Services, Inc., a New York corporation (the "PURCHASER").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the parties have entered into an Asset Purchase Agreement
dated as of September __, 2003 (the "ASSET PURCHASE AGREEMENT"; capitalized
terms used and not defined herein are used herein as defined in the Asset
Purchase Agreement), providing for the sale to the Purchaser of certain assets
of the Sellers and the assignment to the Purchaser of certain liabilities of the
Sellers; and
WHEREAS, the execution and delivery of this Agreement by the Purchaser
is a condition to the obligations of the parties to consummate the transactions
contemplated by the Asset Purchase Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements and covenants hereinafter set forth, the parties hereby agree as
follows:
1. The Purchaser hereby assumes and agrees to pay, perform and
discharge in accordance with their terms (whether fixed or contingent, matured
or unmatured, arising by law or by Contract or otherwise) all the Assumed
Liabilities as set forth in Section 1.3 of the Asset Purchase Agreement.
2. Any notice, request or other document to be given hereunder to
either party hereto shall be given in accordance with Section 8.4 of the Asset
Purchase Agreement.
3. This Agreement is not assignable without the prior written
consent of the Sellers; provided that the Purchaser, in its sole discretion, may
assign this Agreement to a wholly-owned subsidiary of the Purchaser, PROVIDED,
FURTHER that the Purchaser shall not be relieved of any of its obligations under
this Agreement or the Asset Purchase Agreement as a result of such assignment.
4. This Agreement and all Claims with respect thereto shall be
governed by and construed in accordance with federal bankruptcy law, to the
extent applicable, and, where state law is implicated, the laws of the State of
New York without regard to any conflict of laws rules thereof that might
indicate the application of the laws of any other jurisdiction.
5. This Agreement may not be amended, waived or otherwise
modified except by a written instrument signed by the parties.
6. This Agreement may be executed in one or more counterparts,
and by the different parties hereto in separate counterparts, each of which
shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
ACTRADE FINANCIAL TECHNOLOGIES LTD.
By:
-----------------------------------
Name:
Title:
ACTRADE CAPITAL INC.
By:
-----------------------------------
Name:
Title:
The CIT Group/Commercial Services, Inc.
By:
-----------------------------------
Name:
Title:
EXHIBIT B
---------
[FORM OF]
XXXX OF SALE
XXXX OF SALE, dated as of September __, 2003 from Actrade Financial
Technologies Ltd., a Delaware corporation ("FINANCIAL"), and Actrade Capital
Inc., a Delaware corporation ("CAPITAL" and, together with Financial, the
"SELLERS") to The CIT Group/Commercial Services, Inc., a New York corporation
(the "PURCHASER").
WHEREAS, the Sellers and the Purchaser have entered into an Asset
Purchase Agreement, dated as of September __, 2003 (the "ASSET PURCHASE
AGREEMENT"; capitalized terms used and not defined herein are used herein as
defined in the Asset Purchase Agreement ), providing for the sale to the
Purchaser of certain assets of the Sellers and the assignment to the Purchaser
of certain liabilities of the Sellers; and
WHEREAS, the execution and delivery of this Xxxx of Sale by the Sellers
is a condition to the obligation of the Purchaser to consummate the transactions
contemplated by the Asset Purchase Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged and pursuant to the Asset Purchase
Agreement, the Sellers by these presents hereby agree as follows:
1. SALE AND ASSIGNMENT OF ASSETS AND PROPERTIES. The Sellers do
hereby sell, assign, transfer, convey, grant, bargain, set over, release,
deliver and confirm (or hereby cause to be transferred, sold, assigned, conveyed
and delivered) unto the Purchaser, its successors and assigns, forever, the
entire right, title and interest of the Sellers in the Assets (which Assets
shall not include the Excluded Assets) in accordance with, and with all of the
protections afforded by, Sections 363 and 365 of the Bankruptcy Code.
2. NO RIGHTS IN THIRD PARTIES. Nothing expressed or implied in
this Xxxx of Sale is intended to or shall confer upon any Person, other than the
parties and their respective successors and assigns, any rights, remedies,
obligations or liabilities under or by reason of this Xxxx of Sale.
3. SUCCESSORS AND ASSIGNS. This Xxxx of Sale shall bind and inure
to the benefit of the parties and their respective successors and permitted
assigns as set forth in Section 8.8 of the Asset Purchase Agreement.
4. GOVERNING LAW. This Xxxx of Sale and all Claims with respect
thereto shall be governed by and construed in accordance with federal bankruptcy
law, to the extent applicable, and, where state law is implicated, the laws of
the State of New York without regard to any conflict of laws rules thereof that
might indicate the application of the laws of any other jurisdiction.
5. COUNTERPARTS. This Xxxx of Sale may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-
IN WITNESS WHEREOF, the Sellers have caused this Xxxx of Sale to be
duly executed as of the date first above written.
ACTRADE FINANCIAL TECHNOLOGIES LTD.
By:
-------------------------------
Name:
Title:
ACTRADE CAPITAL INC.
By:
-------------------------------
Name:
Title:
Accepted and Agreed to:
THE CIT GROUP/COMMERCIAL SERVICES, INC.
By:
---------------------------
Name:
Title:
